Eddington and Hayes - [2014] FamCA 955

FAMILY COURT OF AUSTRALIA

EDDINGTON & HAYES

[2014] FamCA 955

FAMILY LAW – COSTS APPLICATION - indemnity costs in circumstances where the court lacked jurisdiction to determine the substantive issues

Penfold v Penfold (1980) FLC 90-800
Brown v Brown (1998) FLC 92-822
Cachia v Hanes (1994) 179 CLR 403

Kohan v Kohan (1993) FLC 92-340 Muldoon v Carylye (2012) FLC 93-513
APPLICANT:	Mr E & Ms F (legal personal representatives for the late Mr Eddington

RESPONDENT:

Ms Hayes

FILE NUMBER:

MLC

2949

2012

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

Pursuant to directions made 13 August 2014 that the Executors lodge submissions by 14 August 2014, that the Applicant file submissions by 11 September 2014 and that any submissions in reply by the Executors be filed and served no later than 18 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT:

Glezer Lanteri & Associates

COUNSEL FOR THE RESPONDENT:

Dr Richard Ingleby

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

Ms Hayes pay the legal costs and disbursements of the late Mr Eddington and the costs of the legal personal representatives of the estate of the late Mr Eddington.
Such costs to be assessed and/or determined:-
a.on an indemnity basis and are to include the costs of the substantive proceedings between the parties and of the costs application,
b.upon the earlier of the two practitioner client costs agreements, evidenced by the legal personal representatives of the estate of the deceased respondent; and
c.as agreed between the parties or in the absence of agreement to be assessed in accordance with the Family Law Rules 2004.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eddington & Hayes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2949 of 2012

Mr E & Ms F (legal personal representatives for the late Mr Eddington

Applicant

And

Ms Hayes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Hayes (‘the Applicant’) commenced property and maintenance proceedings against the late Mr Eddington (‘the Respondent’) pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’) seeking the exercise of the Court’s jurisdiction on the basis of a de facto relationship between them which had broken down.
Mr Eddington died in 2013 and Mr E and Ms F are the executors (‘the Executors’) of his estate and were subsequently substituted as his legal personal representatives in the proceedings pursuant to the Act. By orders made 24 May 2014 the proceedings commenced by the Applicant were dismissed and reasons were published.
In those reasons the Court determined that it lacked jurisdiction to determine those proceedings.
The orders provided that parties seeking costs could do…

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 Eddington and Hayes

Details

AGLC: Eddington and Hayes [2014] FamCA 955
Case: [2014] FamCA 955
Decision Date: 7 November 2014

CaseChat Overview and Summary

This matter concerned an application for costs by the legal personal representatives of the estate of the late Mr Eddington, who was the respondent in substantive proceedings, against Ms Hayes, the applicant. The dispute arose from the legal costs incurred in the substantive proceedings between the parties.

The primary legal issue before the Court was the basis upon which Ms Hayes should be ordered to pay the costs of Mr Eddington's estate. Specifically, the Court was required to determine whether the costs should be assessed on a standard or indemnity basis, and to consider the relevant practitioner-client costs agreements in making its determination.

Benjamin J ordered that Ms Hayes pay the legal costs and disbursements of the late Mr Eddington and the costs of his legal personal representatives. These costs were to be assessed on an indemnity basis, encompassing both the substantive proceedings and the costs application. The assessment was to be guided by the earlier of the two practitioner-client costs agreements, or failing agreement, in accordance with the Family Law Rules 2004. The Court also certified that it was reasonable to engage senior counsel and counsel for the proceedings.

Orders

Orders of the court

Ms Hayes pay the legal costs and disbursements of the late Mr Eddington and the costs of the legal personal representatives of the estate of the late Mr Eddington.

Such costs to be assessed and/or determined:-

a. on an indemnity basis and are to include the costs of the substantive proceedings between the parties and of the costs application,

b. upon the earlier of the two practitioner client costs agreements, evidenced by the legal personal representatives of the estate of the deceased respondent; and

c. as agreed between the parties or in the absence of agreement to be assessed in accordance with the Family Law Rules 2004.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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