Gaudry and Gaudry (No.2) - [2004] FMCAfam 649

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GAUDRY & GAUDRY (No.2)

[2004] FMCAfam 649

FAMILY LAW – Costs – circumstances justifying order – whether costs should be awarded on indemnity basis – where no submissions have been made by the respondent.

Family Law Act 1975 (Cth), s.117
Federal Magistrates Court Rules 2001, Part 21

Gaudry & Gaudry [2004] FMCAfam 452
Munday & Bowman (1997) 22 Fam LR 321; FLC 92-784
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248

Applicant:

KIM SHARON GAUDRY

Respondent:

ROBERT JOHN GAUDRY

File No:

NCM 3889 of 2001

Delivered on:

19 November 2004

Delivered at:

Sydney

Hearing date:

7 May 2004 and written submissions

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Stacks The Law Firm Port Macquarie

The Respondent:

There was no appearance by or on behalf of the Respondent

ORDERS

The Respondent is to pay the Applicant’s costs in the sum of $14,518.50 together with interest on all amounts unpaid after three (3) months from the date of this Order at the rate specified in Part 22 of the Federal Magistrate Court Rules.
The amount of costs and interest if any owing to the Applicant by the Respondent is to be deducted from the amount payable to the respondent out of the proceeds of sale of the real property known as 698 Murphy Road Agnes Water in the State of Queensland.
The application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

NCM 3889 of 2001

KIM SHARON GAUDRY

Applicant

And

ROBERT JOHN GAUDRY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the wife for an order that the respondent husband should pay her costs of proceedings under s.79A of the Family Law Act. She seeks that the costs should be awarded on an indemnity basis and that they should be secured against the respondent’s share of the sale of the matrimonial property. The applicant asks that costs should be fixed in the sum of $17,401.70.

Background

There were property proceedings between the parties heard at

Coffs Harbour on 30th August 2002. I made certain orders for the sale of a jointly owned property at 698 Murphy Road, Agnes Water, in the State of Queensland. Those orders provided that the property should be sold at a price agreed between the parties and the net proceeds should be divided between the parties. The wife later made an application under s. 79A that those orders should be set aside because the husband had since demolished the residence on the property.
I heard the wife’s application on 5th May 2004. Mr Graham of counsel appeared for the wife. The husband appeared in person and did not file any documents. He made oral submissions to the Court. I was satisfied that the husband had been the instigator of the demolition of the house without any satisfactory explanation. I was also satisfied that the value of the…

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 Gaudry and Gaudry (No.2)

Details

AGLC: Gaudry and Gaudry (No.2) [2004] FMCAfam 649
Case: [2004] FMCAfam 649
Decision Date: 19 November 2004

CaseChat Overview and Summary

The case of Gaudry and Gaudry (No.2) involved the parties Gaudry as the Applicant and Gaudry as the Respondent. The dispute centred on the financial obligations stemming from the sale of real property located at 698 Murphy Road, Agnes Water, Queensland. The matter was brought before the Federal Circuit and Family Court of Australia. The Applicant sought an order to recover unpaid costs from the Respondent, as well as interest on those amounts if not paid within three months of the order.

The legal issues before the court included the determination of the amount of costs and interest owed by the Respondent to the Applicant and the mechanism by which these amounts could be recovered. The Applicant argued that the costs and interest owed should be deducted from the proceeds of the sale of the property in question. The court had to consider whether such a deduction was permissible under the applicable rules and whether the Applicant was entitled to recover the specified costs and interest from the Respondent.

The court reasoned that the Federal Magistrate Court Rules permitted the deduction of costs and interest from the proceeds of the sale of the property. It was determined that the Applicant was entitled to recover the specified costs and interest from the Respondent. Consequently, the court made an order that the Respondent was to pay the Applicant's costs in the sum of $14,518.50, together with interest on all amounts unpaid after three months from the date of the order at the rate specified in Part 22 of the Federal Magistrate Court Rules. Furthermore, the court ordered that any costs and interest owed by the Respondent to the Applicant be deducted from the amount payable to the Respondent out of the proceeds of sale of the property at 698 Murphy Road, Agnes Water. The application was subsequently removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The Respondent is to pay the Applicant’s costs in the sum of $14,518.50 together with interest on all amounts unpaid after three (3) months from the date of this Order at the rate specified in Part 22 of the Federal Magistrate Court Rules.

The amount of costs and interest if any owing to the Applicant by the Respondent is to be deducted from the amount payable to the respondent out of the proceeds of sale of the real property known as 698 Murphy Road Agnes Water in the State of Queensland.

The application is removed from the list of cases awaiting finalisation.

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.