Ettridge and Somers (No 5) - [2019] FamCA 958

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 5)

[2019] FamCA 958

FAMILY LAW – COSTS – where the applicant seeks costs on an indemnity basis from the respondent – where the applicant seeks payment be made directly from the respondent’s share of the proceeds of sale of the parties’ real property – where the respondent opposes that application – where the respondent’s conduct justifies an order as sought by the applicant – order that the respondent pay the applicant’s costs on an indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
I and I (1995) FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

Written Submissions In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Carew Counsel

THE RESPONDENT:

In person

Orders

(1)That the respondent pay the applicant’s costs of and incidental to the Application in a Case filed 12 June 2019 calculated on an indemnity basis and fixed in the sum of $13,947 (“the payment”).
(2)That the payment be made to the applicant from the respondent’s entitlements to the proceeds of sale the property situate at and known as B Street, Suburb C.
(3)That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 July 2019 this matter came before me in the Judicial Duty List. On that day, I heard the respondent’s oral application for me to recuse myself as well as his Application in a Case filed 25 June 2019 seeking a stay of orders pending the outcome of an appeal against my orders and his application for leave to appeal a range of orders earlier made out of time.
On the same day, the applicant pressed paragraph 7 of her Application in a Case filed 12 June 2019, in which she sought a warrant for the possession of the former matrimonial home situate at B Street, Suburb C (“Suburb C property”). This part of her application had been adjourned on 18 June 2019 to a date to be fixed in the event the respondent…

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.

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Details

Case: [2019] FamCA 958
Decision Date: 12 December 2019

CaseChat Overview and Summary

The case of *Ettridge and Somers (No 5)* concerned an application brought before Johns J. The dispute involved an application filed on 12 June 2019, the specifics of which are not detailed in the provided text, but it resulted in orders for costs and the dismissal of extant applications.

The primary legal issue before the court was the determination of costs associated with the application. Specifically, the court was required to decide on the basis upon which these costs should be calculated and how the payment of those costs should be secured.

Johns J ordered that the respondent pay the applicant's costs of and incidental to the application on an indemnity basis, fixing the sum at $13,947. This payment was to be satisfied from the respondent's entitlements to the proceeds of sale of a property located at B Street, Suburb C. All other extant applications before the court were dismissed.

Orders

Orders of the court

(1) That the respondent pay the applicant’s costs of and incidental to the Application in a Case filed 12 June 2019 calculated on an indemnity basis and fixed in the sum of $13,947 (“the payment”).

(2) That the payment be made to the applicant from the respondent’s entitlements to the proceeds of sale the property situate at and known as B Street, Suburb C.

(3) That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.