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Goodridge & Beadle (No 2)

Goodridge & Beadle (No 2)

Case [2019] FamCA 786 30 October 2019

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FAMILY COURT OF AUSTRALIA

GOODRIDGE & BEADLE (NO. 2)

[2019] FamCA 786

FAMILY LAW – COSTS – application for indemnity costs against a bankrupt and a person of straw – relevant principles canvassed – application for costs against non-parties – liability for costs to be paid by a solicitor for a party – relevant principles canvassed.

FAMILY LAW – INDEMNITY COSTS – relevant principles.

Australian Passports Act 2005 (Cth), s 9A(d)
Bankruptcy Act 1966 (Cth), s 60
Family Law Act 1975 (Cth), ss 117
Supreme Court of Queensland Act 1991 (Qld), s 58
Rules of the Supreme Court of Queensland (Qld), order 9, r 1

Addison & Leahy [2008] FamCA 248
Aider Shipping Co Ltd v Interbulk Ltd (The Vimeira (No 2)) [1986] AC 965
Andrews v Barnes (1888) 39 Ch D 133
Anison v Anison (2019) 59 Fam LR 581
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Bischof v Adams [1992] 2 VR 198
Brott v Grey [2000] FCA 1836
Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203
C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd [1995] VSC 473
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Queensland) Pty Ltd (1993) 45 FCR 224
Cassidy & Murray (1995) 19 Fam LR 492
Christie v Christie (1873) LR 8 Ch App 499
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins and Collins (1985) 9 Fam LR 1123
Corporation of Burford v Lenthall (1743) 26 ER 731
Cummings v Lewis & Ors (1993) 41 FCR 559
Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123
Forester v Read (1870) LR 6 Ch App 40
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202
Garnet v Bradley (1878) 3 AC 944
Goodridge & Beadle and Ors [2019] FamCA 709
Gordon & Gordon(No. 2) [2018] FCCA 1617
Gordon & Gordon [2017] FCCA 2899
Greedy & Greedy (1982) 8 Fam LR 669
Horne (in his capacity as trustee of the Bankrupt Estate of Narain) v Narain [2017] FCCA 1190
Howes v Barber (1852) 18 QB 588
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
In re Gardiner; ex parte Orgill (1890) 16 VLR 641
In the Marriage of Anstis (1999) 26 Fam LR 548
In the Marriage of Jachimowicz (1986) 10 Fam LR 566
In the Marriage of Kohan (1992) 16 Fam LR 245
In the Marriage of Oriolo & Oriolo (1985) 10 Fam LR 665
In the Marriage of Pagliarella (No 3) (1994) 122 FLR 445
In the Marriage ofRobinson and Higginbotham (1991) 14 Fam LR 559
In the Marriage of S (1997) 22 Fam LR 112
In the Marriage of Tuck (1979) 7 Fam LR 492
Jones v Coxeter (1742) 26 ER 642
Knight v F.P. Special Assets Ltd (1992) 174…

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 Goodridge & Beadle (No 2)

Details

AGLC: Goodridge & Beadle (No 2) [2019] FamCA 786
Case: [2019] FamCA 786
Decision Date: 30 October 2019

CaseChat Overview and Summary

In *Goodridge & Beadle (No 2)*, the applicant sought orders for indemnity costs against the respondent, who was bankrupt, and against a third party described as a "person of straw". The applicant also sought costs against the respondent's solicitor. The proceedings concerned an application for indemnity costs, and the court was required to consider the principles governing such applications, particularly in circumstances involving a bankrupt party and a party with no assets, as well as the potential liability of a solicitor for costs.

The central legal issues before Wilson J were: firstly, whether indemnity costs should be awarded against the respondent, a bankrupt, and the third party, a person of straw; and secondly, whether the respondent's solicitor should be held liable for the costs of the proceedings. The court had to determine the circumstances under which a court may depart from the usual rule that costs follow the event and order indemnity costs, and the principles applicable to making costs orders against non-parties, including solicitors.

Wilson J canvassed the relevant principles for awarding indemnity costs, noting that such an order is exceptional and requires conduct that is unreasonable, vexatious, or otherwise deserving of censure. The court considered the financial position of the respondent and the third party, and the implications of ordering costs against parties who may be unable to satisfy such an order. Regarding the solicitor's liability, the court examined the principles under which a solicitor might be ordered to pay costs, which typically involve misconduct or a failure to act in accordance with their duty to the court. The court's reasoning focused on the need for a strong justification to depart from the ordinary costs rules and to impose liability on a solicitor.

Orders