J and B - [2007] FamCA 1433

FAMILY COURT OF AUSTRALIA

J & B

[2007] FamCA 1433

FAMILY LAW – COSTS – costs assessment order set aside – costs assessment hearing ordered – security payment dispensed with

Family Law Act 1975 (Cth)
Supreme Court (General Civil Procedure) Rules 2005 (Vic)
County Court Rules of Procedure in Civil Proceedings 1999 (Vic)

R & E Solicitors [2006] FamCA 1013
Maher and Commonwealth of Australia and Ors [2004] FCA 248
Cook v DA Manufacturing Co Pty Ltd [2004] QCA 52
Evans v Bartlam [1937] AC 473
Grimshaw v Dunbar [1953] 1 QB 408
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Day v RAC Motoring Services Ltd [1999] 1 All ER 1007
Allen v Taylor [1992] PIQR 255
Winneke P in Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34
Rosing v Ben Shemesh [1960] VR 173
National Life Mutual Association Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
Crayden v Ottavaiano [2003] WASCA 20
John Tanner Holdings Pty Ltd v E J Groth and Co Pty Ltd [1991] SASC 2697

APPLICANT:

Mrs J

RESPONDENT:

B, Solicitor

FILE NUMBER:

MLF

8858

1992

DATE DELIVERED:

12 December 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

22 November 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms C. Molyneux QC

SOLICITOR FOR THE APPLICANT:

Pearce Webster Dugdales

COUNSEL FOR THE RESPONDENT:

Mr J. Levine

SOLICITOR FOR THE RESPONDENT:

B Solicitors

Orders

That the Order of Registrar Riddiford of 13 April 2006 be set aside.
That the time for the application to set aside the costs assessment order of Registrar Sikiotis of 24 May 2006 (“costs order”) and the time fixed to set aside the costs order be extended to give effect to order 3 below.
That the costs order be set aside.
A consequential order that the matter be referred to a Registrar who will list the matter for an assessment hearing.
That the applicant file and serve, within 35 days from the date of this order or such longer time as is agreed between the parties or further ordered by this court, all material upon which she relies in terms of the assessment hearing including all and any objections.
That the respondent file and serve, within 35 days from the date that the applicant complies with order 5 above or such longer time as is agreed between the parties or further ordered by this court, all material upon which he relies in terms of the assessment hearing including responses to all and any objections and including production of all receipts, invoices, copy letters, notes, reports, timesheets, time and accounting records reasonably requested by the applicant.
That either party be at liberty to apply in respect of costs of this application in a case provided that notice in writing is give to the other party and the court within 28 days of these orders.

IT IS NOTED that publication of this judgment under the pseudonym J & B is…

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 J and B

Details

AGLC: J and B [2007] FamCA 1433
Case: [2007] FamCA 1433
Decision Date: 12 December 2007

CaseChat Overview and Summary

In the matter of J and B, Bennett J of the Supreme Court of New South Wales considered an application to set aside a costs assessment order. The dispute concerned the validity and fairness of a prior costs assessment, with the applicant seeking to have that assessment reviewed and set aside.

The central legal issue before the court was whether the Registrar's costs assessment order of 24 May 2006 should be set aside. This required the court to consider the grounds upon which such an order could be overturned and whether the circumstances of this case warranted such an intervention.

Bennett J determined that the Registrar's order should be set aside. The court reasoned that it was appropriate to extend the time for the application to set aside the costs order and to grant the application itself. Consequently, the matter was referred back to a Registrar for a fresh assessment hearing, with detailed directions provided for the filing and service of material by both parties in preparation for this new assessment.

Orders

Orders of the court

That the Order of Registrar Riddiford of 13 April 2006 be set aside.

That the time for the application to set aside the costs assessment order of Registrar Sikiotis of 24 May 2006 (“costs order”) and the time fixed to set aside the costs order be extended to give effect to order 3 below.

That the costs order be set aside.

A consequential order that the matter be referred to a Registrar who will list the matter for an assessment hearing.

That the applicant file and serve, within 35 days from the date of this order or such longer time as is agreed between the parties or further ordered by this court, all material upon which she relies in terms of the assessment hearing including all and any objections.

That the respondent file and serve, within 35 days from the date that the applicant complies with order 5 above or such longer time as is agreed between the parties or further ordered by this court, all material upon which he relies in terms of the assessment hearing including responses to all and any objections and including production of all receipts, invoices, copy letters, notes, reports, timesheets, time and accounting records reasonably requested by the applicant.

That either party be at liberty to apply in respect of costs of this application in a case provided that notice in writing is give to the other party and the court within 28 days of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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