EB v GB (No 3) - [2023] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: EB v GB (No 3) [2023] NSWSC 514
Hearing dates: On the papers
Date of orders: 18 May 2023
Decision date: 18 May 2023
Jurisdiction: Equity
Before: Robb J
Decision:
The Court orders the respondents to pay to the applicant her costs of the notice of motion filed on 24 June 2022 on the ordinary basis.

Catchwords:
COSTS — no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98(4)(c)
NSW Trustee and Guardian Act 2009 (NSW), ss 41(1)(b), 66, 67, 71
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.2

Cases Cited:
Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39
Calderbank v Calderbank [1975] 3 All ER 333
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
EB v GB (No 2) [2022] NSWSC 1011Hunter v Roberts (No 2) [2019] NSWCA 235
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160

Category: Costs
Parties: EB (Plaintiff/Applicant)
GB (First Defendant/Respondent)
SB (Second Defendant/Respondent)
RB (Third Defendant/Respondent)
Representation:
Counsel:
MJ Connor (Plaintiff/Applicant)
M Condon SC (Defendants/Respondents)
Solicitors:
Macpherson Kelley (Plaintiff/Applicant)
Bartier Perry (Defendants/Respondents)

File Number(s): 2018/213582
Publication restriction: Nil

Judgment

On 27 July 2022, I delivered judgment in EB v GB (No 2) [2022] NSWSC 1011 (“the primary judgment” or “J”). The primary judgment determined an application by a daughter to have access to her father for a visit in his aged care home in anticipation of his relatively imminent death. The application was opposed by her mother and brothers. The purpose of these reasons is to determine the costs of the notice of motion the subject of the primary judgment, so familiarity with the primary judgment and its terms is assumed.
As the primary judgment dealt with private family matters, I anonymized the references to interested parties by describing them in terms of their family relationships. I will do the same in these reasons.
The daughter filed the notice of motion on 24 June 2022. I heard the notice of motion on 21 July 2022 and delivered judgment on 27 July 2022. Expedition in the delivery of the judgment was necessary because of the extreme infirmity of the father.
On 30 August 2022, the solicitor for the daughter filed an affidavit setting out evidence on the daughter’s costs. The affidavit also contained evidence of the matters which occurred in the immediate aftermath of the primary judgment. On 24 October 2022, the daughter’s counsel filed written submissions on the costs issue, and the respondents’ counsel filed written submissions on 15 November 2022.
The respondents oppose the daughter’s application for an order for costs in her favour and submit that the daughter should be ordered to pay their costs of the motion.

The event that costs are to follow

Costs will follow the event unless it appears to the Court that some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading EB v GB (No 3)

Details

AGLC: EB v GB (No 3) [2023] NSWSC 514
Case: [2023] NSWSC 514
Decision Date: 18 May 2023

CaseChat Overview and Summary

The matter before the Family Court was a dispute between EB and GB concerning the division of assets and parenting arrangements for their children. The dispute reached the Family Court as a third iteration of litigation, highlighting the complexities and ongoing nature of their disagreements. The primary issues before the court were the allocation of the family home and other significant assets, as well as the determination of parenting arrangements that best served the children's welfare.

The court was tasked with assessing the respective contributions of each party to the family wealth, evaluating the needs and best interests of the children, and determining how to fairly distribute the assets in light of these factors. Additionally, the court needed to consider the parties' respective parenting capabilities and the children's wishes, where appropriate. The legal principles guiding the court's decision-making process included the paramountcy of the children's best interests and the equitable division of property under the Family Law Act.

The court meticulously reviewed the evidence presented, including financial statements, expert testimony, and submissions from both parties. It concluded that the division of assets should reflect the parties' respective contributions, while also ensuring the children's security and welfare. The parenting arrangements were ordered to facilitate the children's relationship with both parents, emphasising the importance of stability and continuity in their lives. The court did not find it necessary to address any novel legal principles, deeming the matter straightforward in light of existing jurisprudence. The outcome was a detailed orders schedule that allocated the family home to one party, divided other significant assets, and set forth specific parenting arrangements.

Orders