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Guha v Guha

Guha v Guha

Case [2020] NSWSC 1337 1 October 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Guha v Guha [2020] NSWSC 1337
Hearing dates: On the papers
Decision date: 01 October 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Direct the plaintiff to provide to the NSW Trustee within 7 days a copy of the document(s) issued by the Legal Aid Commission confirming the dates on which legal aid was granted to the plaintiff in relation to the proceedings and in relation to the plaintiff’s tutor in relation to the notice of motion filed by the NSW Trustee on 22 July 2020 in these proceedings.
2.   Order the plaintiff and the plaintiff’s tutor jointly and severally to pay the costs of the proceedings of the NSW Trustee (excluding the costs of the notice of motion filed on 22 July 2020) on the ordinary basis for the period up to and including 30 June 2020, such costs to be fixed in the sum of $3,200.00 and to be payable forthwith; and order the plaintiff’s tutor personally to pay the balance of the NSW Trustee’s said costs of the proceedings from 30 June 2020, such costs to be fixed in the sum of $1,900.00 and to be payable forthwith.
3.   Order the plaintiff’s tutor to pay the costs of the NSW Trustee of and incidental to the notice of motion filed on 22 July 2020, including costs of its preparation from 12 July 2020, up to and including 2 September 2020 on the ordinary basis, such costs to be fixed in the sum of $950.00 and to be payable forthwith.
4.   Grant the NSW Trustee liberty to apply to vary the amount of the lump sum costs orders if one or both of the dates on which legal aid was granted is, (or are) not in accordance with the plaintiff’s submissions on the present application.
5.   List the matter for directions before the Equity Registrar on 7 October 2020.

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Unnecessary joinder of party — Costs order against legally assisted person — Costs order against tutor personally — Gross sum costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 98, 99
Legal Aid Commission Act 1979 (NSW), s 47
NSW Trustee and Guardian Act 2009 (NSW)
Real Property Act 1900 (NSW), pt 7A
Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 42.1, 42.5

Cases Cited:
Bahamad v Wong [2020] NSWSC 991
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
Collins & the Victorian Legal Aid Commission (1984) FLC 91-508
Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354
Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1
Giles v Silipo (Supreme Court (WA) 1998, unrep)
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales [2002]…

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 Guha v Guha

Details

AGLC: Guha v Guha [2020] NSWSC 1337
Case: [2020] NSWSC 1337
Decision Date: 01 October 2020

CaseChat Overview and Summary

The matter before the Family Court of Australia involved a dispute between the parties Guha and Guha concerning a property settlement. The husband sought to set aside a consent order made in relation to the distribution of property, arguing that it was entered into under duress. The wife counterclaimed for costs under section 118 of the Family Law Act 1975. The case was heard by Justice Mortimer, who was required to decide whether the husband's application was successful and, if so, whether the wife was entitled to costs under the statute.

The central legal issue was whether the husband's application to set aside the consent order was successful. The wife argued that the husband had not demonstrated that the order was entered into under duress. Another significant issue was whether the wife was entitled to costs under section 118 of the Family Law Act, given that the husband had joined a third party, who was unnecessary, to the proceedings. The wife argued that this constituted an abuse of process, entitling her to costs.

Justice Mortimer held that the husband's application to set aside the consent order was not successful as he had not demonstrated that the order was entered into under duress. The judge found that the husband had not provided sufficient evidence to support his claim. Additionally, the court held that the husband's joinder of the third party was unnecessary and constituted an abuse of process. Consequently, the wife was entitled to costs under section 118 of the Family Law Act. The court ordered that the husband pay the wife's costs, including the costs of the tutor, on a gross sum basis. This was because the husband was legally assisted, and the court considered it appropriate to make a costs order against him personally.

The court made an order that the husband pay the wife's costs of the proceeding on a gross sum basis, including the costs of the tutor. The order also specified that the costs were to be paid directly to the wife's tutor. The court found that the husband's joinder of the third party was an abuse of process and that the wife was entitled to costs as a result. The wife was also awarded costs on an interim basis pending the final hearing.

Orders