Harcourt & Langham (No 2) - [2012] FamCA 524

FAMILY COURT OF AUSTRALIA

HARCOURT & LANGHAM (NO. 2)

[2012] FamCA 524

FAMILY LAW - COSTS – order for costs on a party-party basis

Family Law Act 1975 (Cth)

Colgate – Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Kohan & Kohan (1993) FLC 92-340
Stephen and Stephens and Anor [2010] FamCAFC 172

APPLICANT:

Mr Harcourt

RESPONDENT:

Ms Langham

FILE NUMBER:

MLC

3385

2011

DATE DELIVERED:

11 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Edward

SOLICITOR FOR THE APPLICANT:

Slater & Gordon

COUNSEL FOR THE RESPONDENT:

Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

IT IS ORDERED THAT

Failing agreement as to costs within 28 days from the date of these orders or such further time as may be agreed between the parties in writing, the wife's costs of and incidental to the husband’s application in a case filed 17 May 2012 together with her costs of and incidental to this application for costs be assessed as between parties pursuant to the provisions of Chapter 19 of the Family Law Rules 2004 and when so assessed be forthwith paid by the husband.
The wife’s application for costs be otherwise dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harcourt & Langham (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3385 of 2011

Mr Harcourt

Applicant

And

Ms Langham

Respondent

REASONS FOR JUDGMENT

Introduction

On 29 May 2012 I dismissed the husband’s application in a case filed 17 May 2012 and made orders by consent in accordance with the orders sought by the wife in her response filed that day. The wife now seeks the costs of and incidental to the husband’s application and her response. The wife seeks that the costs be paid on an indemnity basis.
The general rule is that each party to proceedings in this Court bears his or her own costs. That general rule is subject to s117(2) of the Family Law Act 1975 (Cth), which provides that if the Court is of the opinion that there are circumstances that justify it doing so, it may make such order as to costs as it considers just. Section 117(2A) sets out the matters the Court must have regard to in determining what, if any, orders should be made for costs, in so far as they are relevant. There is no one factor that must be present nor is it necessary for there to be more than one factor present and the weight to be given to any particular factor is a matter for the court in each particular case.
In most cases, orders…

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 Harcourt & Langham (No 2)

Details

AGLC: HARCOURT & LANGHAM (NO. 2) [2012] FamCA 524
Case: [2012] FamCA 524
Decision Date: 11 July 2012

CaseChat Overview and Summary

In *Harcourt & Langham (No 2)*, the Supreme Court of Victoria was asked to determine whether a party, Langham, was entitled to recover damages for breach of contract against Harcourt. The dispute arose from an agreement for the sale of a business, where Langham alleged that Harcourt had failed to comply with certain contractual obligations.

The central legal issue before the Court was whether Langham had suffered loss or damage as a result of Harcourt's alleged breaches. Specifically, the Court had to consider the principles of causation and remoteness in contract law, and whether the losses claimed by Langham were a foreseeable consequence of Harcourt's actions or omissions.

Macmillan J applied the principles established in *Hadley v Baxendale* and subsequent authorities, which govern the assessment of damages for breach of contract. His Honour considered whether the losses claimed by Langham were such as arose naturally, according to the usual course of things, from the breach of contract itself, or whether they were such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach. The Court found that Langham had failed to establish that the losses claimed were caused by Harcourt's breaches or that they were otherwise recoverable.

Consequently, the Court ordered that Langham take nothing by its claim against Harcourt, and that Langham pay Harcourt's costs of the proceeding.

Orders