Hill and Ford and Anor - [2019] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HILL and FORD & ANOR [2019] FCWA 132
CORAM: TYSON J
HEARD: 21 and 22 MARCH 2019
DELIVERED : 6 JUNE 2019
FILE NO/S: PTW 744 of 2018
BETWEEN: MS HILL
Applicant
AND
MR FORD
Respondent
AND
MS PALMER
Third Party

Catchwords:

FAMILY LAW - UNDERTAKING AS TO DAMAGES - Assessment of compensation pursuant to Undertaking as to Damages - Wife under a disability - Wife commenced proceedings through a Case Guardian - Ex parte injunctions made on the wife's application restraining access to matrimonial monies - Undertaking as to Damages given - Wife's Case Guardian since discharged and a different Case Guardian appointed - Where the husband seeks damages allegedly arising from the ex parte injunctions including lost interest and legal costs - In the alternative the husband seeks costs under the Family Law Act - No orders for damages made - No orders for costs made - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Kavanagh Lawyers
Respondent	:	Thomas Gatter
Third Party	:	Gregory Wolff Solicitors

Solicitors:

Applicant	:	Did not participate
Respondent	:	Mr Nicholls QC
Third Party	:	Mr Hooper SC

Case(s) referred to in decision(s):

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (Air Express) (1981) 146 CLR 249
B & B [2015] FCWA 65
Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856
Braithwaite & Braithwaite [2007] FamCA 468
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Fitzgerald & Fish (2005) 33 Fam LR 123
Greedy & Greedy (1982) FLC 91-250
I & I (No 2) (1995) FLC 92-625
Indoor Holdings Pty Ltd v Bennett [2010] WASC 242
Kannis & Kannis (2003) FLC 93-135
Kohan & Kohan (1993) FLC 92-340
Lenova & Lenova (Costs) [2011] FamCAFC 141
Luadaka & Luadaka (1998) FLC 92-830
Madin & Palis (Costs) [2016] FamCAFC 25
Minerology Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307
Munday & Bowman (1997) FLC 92-784
Read v Read [1944] SASR 26
White & Green (No 2) (2009) 41 Fam LR 185
Yunghanns & Yunghanns (2000) FLC 93-029

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 [Mr Ford] [“the husband”] and [Ms Hill] [“the wife”] married [in] 2005. In early 2017, the wife was diagnosed with an aggressive, incurable form of dementia.

2 The wife, through her Case Guardian [Ms Palmer], subsequently commenced Family Court proceedings seeking orders by way of alteration of property interests. At the time she filed an Undertaking as to Damages and sought urgent interim orders.

3 On 1 February 2018 the application came before the Court. The Acting Magistrate made a number of orders on an ex parte basis:

•Appointing [Ms Palmer] as [the…

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

Case: [2019] FCWA 132
Decision Date: 6 JUNE 2019

CaseChat Overview and Summary

Hill and Ford and Anor was a case heard by the Family Court of Australia. The dispute involved a husband and wife, with the wife having been under a disability and commencing proceedings through a Case Guardian. The husband sought damages from the ex parte injunctions made on the wife's application, which restrained access to matrimonial monies. An Undertaking as to Damages had been given, and the wife's Case Guardian had since been discharged with a new one appointed. The husband sought damages for lost interest, legal costs, and, in the alternative, sought costs under the Undertaking as to Damages.

The legal issues the court had to decide were whether the husband was entitled to damages for lost interest and legal costs allegedly arising from the ex parte injunctions, and whether the court should grant the husband's alternative application for costs under the Undertaking as to Damages. The court had to consider the terms of the Undertaking as to Damages and whether the husband's claims were within the scope of that Undertaking. The court also had to consider the wife's disability and the role of her Case Guardian in the proceedings.

The court held that the husband was not entitled to damages for lost interest or legal costs arising from the ex parte injunctions. The court found that the Undertaking as to Damages did not cover these claims and that the husband had not shown that the injunctions had caused him any loss. The court also held that the husband was not entitled to costs under the Undertaking as to Damages as the claims he made were not within the scope of the Undertaking. The court found that the wife's disability and the role of her Case Guardian did not affect the outcome of the case.

The court dismissed the husband's claims for damages and costs. The court held that the husband had not established his case on the balance of probabilities and that the wife's disability and the role of her Case Guardian did not affect the outcome of the case. The court did not make any orders for costs.

Orders