H v. M - [2007] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

H v M [2007] QSC 321

PARTIES:

H
(applicant)
v
M
(respondent)

FILE NO/S:

BS3537/05

DIVISION:

Trial Division

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON:

31 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on the papers without oral hearing

JUDGE:

Lyons J

ORDER:

Each party to bear their own costs

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE
GENERAL RULE – ORDER FOR COSTS ON

INDEMNITY BASIS – where issue of costs remitted to trial judge following unsuccessful appeal of property adjustment decision – whether general rule under s 341 Property Law Act 1974 should be departed from

Property Law Act 1974, s 341
Family Law Act 1975 (Cth), s 117

In the Marriage of I and I (No 2) (1995) FLC 92-625; (1995) 22 Fam LR 557, applied
LF v RA (No2) [2006] QSC 72, applied

SOLICITORS:

SBA Family Lawyers for the applicant
Hatzis Lawyers for the respondent

History of the matter

LYONS J: This matter was commenced by originating application filed by the applicant on 3 May 2005. Following the commencement of the matter, the parties exchanged several formal offers and counter-offers however no offers were accepted and the matter went to trial on 9 November 2006. Judgment was delivered on 27 November 2006 and the applicant was awarded 30 per cent of the property pool. On 15 December 2006, both parties filed submissions on costs. On 27 December 2006, the applicant lodged a Notice of Appeal and the appeal was heard on 29 May 2007. On 13 July 2007, judgment was delivered dismissing the appeal and remitting the costs of the trial back to the trial judge. The matter was listed for mention on 10 August 2007, at which time neither party appeared. Further submissions on costs were received from the respondent on 27 August 2007 and a further affidavit in relation to costs was filed by the applicant on 12 September 2007.

The issues in relation to costs

Section 341 of the Property Law Act 1974 provides:

“(1)A party to a proceeding under this part bears the party's own costs.
(2)However, if the court is satisfied there are circumstances justifying it making an order, it may make any order for costs or security for costs it considers appropriate.
(3)The court may make an order at any stage of the proceeding or after the proceeding ends.
(4)In considering whether there are circumstances justifying it making an order, the court must consider the following matters—
(a)the income, property and financial resources of each of the parties;
(b)whether any party has legal aid and the terms of the legal aid;
(c)the conduct of each of the parties in relation to the proceeding, including, for example, conduct about pleadings, particulars, disclosure, inspection, interrogatories, admissions of facts and production of documents;
(d)whether the proceeding results from a party's failure to comply with a previous order made under this part;
(e)whether any party has been wholly unsuccessful in the proceeding;
(f)whether any party…

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 H v. M

Details

AGLC: H v M [2007] QSC 321
Case: [2007] QSC 321
Decision Date: 31 October 2007

CaseChat Overview and Summary

In the case of H v M, the parties were engaged in a dispute concerning property adjustments, specifically relating to the costs associated with the proceedings. The case was heard and determined in the Family Court of Australia. The primary issue for the court was whether the general rule under section 341 of the Property Law Act 1974, which dictates that each party bears their own costs, should be departed from, particularly in light of the unsuccessful appeal of a property adjustment decision.

The court was tasked with examining the circumstances that would justify departing from the general rule of costs being borne by each party. The appeal court had previously remitted the issue of costs back to the trial judge, indicating that there were factors to consider that might warrant a deviation from the standard approach. The court had to balance the principles of fairness and the practical implications of the costs incurred against the backdrop of the unsuccessful appeal and the specific nature of the property adjustment dispute.

In reaching its decision, the court considered the precedent and statutory provisions governing costs in family law matters. It noted that section 341 of the Property Law Act 1974 provides a general rule that each party bears their own costs. However, the court also recognised that there may be exceptional circumstances where deviating from this rule is warranted. After a thorough analysis, the court concluded that the circumstances of this case did not justify a departure from the general rule, as the unsuccessful appeal did not present a compelling case for altering the usual cost-bearing arrangement. Consequently, the court ordered that each party bear their own costs, adhering to the general principle established in the legislation.

Orders

Orders of the court

Each party to bear their own costs

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.

CITATION:	H v M [2007] QSC 321
PARTIES:	H (applicant) v M (respondent)
FILE NO/S:	BS3537/05
DIVISION:	Trial Division
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 October 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Decision on the papers without oral hearing
JUDGE:	Lyons J
ORDER:	Each party to bear their own costs
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where issue of costs remitted to trial judge following unsuccessful appeal of property adjustment decision – whether general rule under s 341 Property Law Act 1974 should be departed from Property Law Act 1974, s 341 Family Law Act 1975 (Cth), s 117 In the Marriage of I and I (No 2) (1995) FLC 92-625; (1995) 22 Fam LR 557, applied LF v RA (No2) [2006] QSC 72, applied
SOLICITORS:	SBA Family Lawyers for the applicant Hatzis Lawyers for the respondent