FAMILY LAW – COSTS – JURISDCITION – Where there are competing costs applications arising from primary proceedings for, inter alia, property settlement under Part VIIIAB of the Family Law Act 1975 (Cth) (“the FLA”) – Where the applicant in the primary proceedings (“the wife”) seeks costs against the second and third respondents – Where the second and third respondents seek costs against the wife – Where the determination of the claim brought by the second and third respondents in the primary proceedings required the invoking of the court’s accrued jurisdiction – Where the second and third respondents seek costs against the wife pursuant to the costs regime guided by s 98 of the Civil Procedure Act 2005 (NSW) (“the CPA”) and the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) – Where the wife seeks costs against the second and third respondents pursuant to the costs regime set out in s 117 of the FLA – Whether the court has jurisdiction to hear the competing costs applications under s 177 of the FLA given that the claim of the second and third respondents in the property proceedings was heard in the court’s accrued jurisdiction
14 August 2013; and written submissions filed on 30 August 2013
REPRESENTATION
COUNSEL FOR THE APPLICANT:
Mr Nicholson
SOLICITOR FOR THE APPLICANT:
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 Hampton and Farley and Ors (No 2)
Sign in free to access the full text
Details
AGLC
Hampton and Farley and Ors (No 2) [2013] FamCA 785
Case
[2013] FamCA 785
Decision Date
CaseChat Overview and Summary
In *Hampton and Farley and Ors (No 2)*, Le Poer Trench J of the Supreme Court of New South Wales considered an application concerning the costs of a witness attending court for cross-examination. The dispute involved the wife, the second respondent, and the third respondent, with the court being asked to determine who should bear the reasonable expenses incurred by Ms T, a witness, in attending court in Sydney for her cross-examination.
The primary legal issue before the court was the quantification and allocation of the reasonable expenses incurred by Ms T for her attendance at court. Specifically, the court was required to determine whether these expenses should be borne by the wife, as the party seeking the cross-examination, or by the respondents.
Le Poer Trench J reasoned that the reasonable expenses incurred by the second respondent in facilitating Ms T's attendance at court for cross-examination should be paid by the wife. The court stipulated that these expenses would be quantified by reference to documentary evidence, such as receipts, demonstrating the actual costs incurred. The cost applications of the wife, the second respondent, and the third respondent were otherwise dismissed.
Orders
Orders of the court
1.
The reasonable expenses incurred by the second respondent in having Ms T attend at the court in Sydney for cross-examination are to be paid by the wife. Such expenses are to be quantified by reference to the provision of receipts, or such like documents, which demonstrate the costs actually incurred.
2.
The cost applications of each of the wife the second and the third respondents are otherwise dismissed.