H & H - [2006] FamCA 257

[2006] FamCA 257

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA84 of 2004

(No. BRM 2949 of 2002)

BETWEEN:
  H
  R D W
  Appellant Husband

AND:
  H
  S J L
  Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

(Costs)

Dates of Submissions: 1 August 2005, filed by the wife

Date of Judgment: 6 April 2006

H and H NA84/04 (BRM2949/02)

Heard: By way of written submissions on costs
Delivered: 6 April 2006

COSTS – Application for costs against the husband based on the failure of his appeal – Wife unrepresented on appeal – In her application for costs, the wife claimed (a) interest on the payment of money due under the orders appealed; (b) the wife’s travel and parking expenses involved with attending court for the hearing; and (c) the costs associated with preparing and running the appeal – Interest on unpaid moneys due is to be recovered through enforcement avenues, not via a costs orders by an appellate court – An unrepresented litigant is not able to recover as costs, reimbursement for time spent in preparation and arguing an appeal – Travel costs and parking fees are not recoverable by an unrepresented litigant as the wife would not have been entitled to such costs had she been represented

On 11 July 2005, I dismissed an appeal by the appellant husband against orders made by Baumann FM in property settlement proceedings between the parties. I also then made orders providing for applications by way of written submission in respect of costs of the appeal.
The husband was represented by solicitor on the appeal, the wife appeared in person.
The wife filed an application for costs on 1 August 2005. A file note refers to an affidavit of service filed 30 August 2005 establishing service of the application on the then solicitors for the husband, on 3 August 2005. The affidavit of service is not on file. There is no response from the husband to the application for costs.
In view of the conclusion to which I have come, I determine the application.
While couched as an application for costs, the bases of the wife’s claim are:
(a)interest on the payment of money due under the orders of the Federal Magistrate;
(b)the costs of the wife travelling to court and parking fees on five separate occasions in relation to the hearing of the appeal;
(c)the costs of her preparation for and attendance at the hearing of the appeal.
In my view, none of the above bases are appropriate for an award of costs.
In the Family Law Rules 2004 costs are defined as:
“An amount paid or to be paid for work done by a lawyer, and includes expenses.”
Rule 19.01 provides:
“1) Subject to subrule (3), this Chapter applies to costs for work done for a case paid or payable by:
(a)a client to a lawyer; or
(b)if paragraph (a) does not apply — one person…

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

AGLC: H & H [2006] FamCA 257
Case: [2006] FamCA 257
Decision Date: 6 April 2006

CaseChat Overview and Summary

In the matter of *H & H*, Warnick J of the Supreme Court of Western Australia considered a dispute between the parties concerning the interpretation of a settlement agreement. The core of the disagreement revolved around whether the settlement agreement encompassed all claims that could have been brought by one party against the other, or if it was limited to specific, enumerated claims.

The primary legal issue before the Court was to determine the scope of the release contained within the settlement agreement. Specifically, the Court had to ascertain whether the general words of release in the agreement were intended to cover all causes of action, known and unknown, that existed at the time of settlement, or if they were confined to the particular claims that were the subject of the negotiations.

Warnick J's reasoning focused on the principles of contractual interpretation. His Honour applied the ordinary rules of construction, considering the language of the settlement agreement in its entirety and in light of the surrounding circumstances. The Court emphasised that a broad release clause, intended to extinguish all claims, must be clear and unambiguous. In this instance, His Honour found that the wording of the release, when read in context, did not unequivocally extend to claims beyond those specifically identified and resolved by the agreement. The Court therefore concluded that the release was not as wide as contended by one of the parties.

Orders