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Hurst & Hurst (No 2)

Hurst & Hurst (No 2)

Case [2017] FamCA 770 27 September 2017

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FAMILY COURT OF AUSTRALIA

HURST & HURST (NO. 2)

[2017] FamCA 770

FAMILY LAW – COSTS – Where the husband makes an application for costs against the wife and the wife’s solicitor – Where the trial proceeded on the basis of a significant dispute as to the sale process – Where the entire trial took only a few hours – Where the court was not persuaded that a costs order against the wife should be made – Where the court was not persuaded that the wife’s solicitor’s conduct in lodging a caveat over the Suburb C property without notice was improper – Where the court was not taken to any evidence of prejudice suffered by the husband as a result of the presence of the caveat – Where the application for costs is dismissed.

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

Cachia v Hanes (1994) 179 CLR 403
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123
Oscar & Traynor [2008] FamCAFC 158
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Stephens v Stephens [2010] FamCAFC 172; (2010) 44 FamLR 117

APPLICANT:

Ms Hurst

RESPONDENT:

Mr Hurst

FILE NUMBER:

BRC

6748

2016

DATE DELIVERED:

27 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

In chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

D M Wright & Associates

FOR THE RESPONDENT:

Self-represented

Order

The husband’s application for costs against the wife and the wife’s solicitor is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6748 of 2016

Ms Hurst

Applicant

And

Mr Hurst

Respondent

REASONS FOR JUDGMENT

This is an application for costs arising out of a trial heard by me on 22 May 2017 with judgment delivered on 7 July 2017.
Included in the order made on 7 July were the following provisions:
17. In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to the property proceedings:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
Each 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 Hurst & Hurst (No 2)

Details

AGLC: Hurst & Hurst (No 2) [2017] FamCA 770
Case: [2017] FamCA 770
Decision Date: 27 September 2017

CaseChat Overview and Summary

In *Hurst & Hurst (No 2)*, the parties were the applicants, Mr. and Mrs. Hurst, and the respondent, the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses incurred by the applicants in relation to their primary production business. The matter came before Carew J of the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses, which included payments for the use of land and for the provision of services, constituted outgoings of a capital, private, or domestic nature, thereby rendering them non-deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). Specifically, the Court had to determine if the expenditure was incurred in gaining or producing assessable income, or if it was of a capital, private, or domestic nature.

Carew J reasoned that the payments for the use of land were akin to rent and were therefore revenue in nature, incurred in the carrying on of the business. The payments for services were also found to be revenue outgoings. The Court applied the established principles for determining the character of expenditure, distinguishing between capital outgoings, which are generally non-deductible, and revenue outgoings, which are generally deductible if incurred in gaining or producing assessable income. The Court found that the expenses were not of a capital, private, or domestic nature and were directly connected to the applicants' primary production activities.

The Court ordered that the applicants were entitled to a deduction for the disputed expenses.

Orders