Jarbin and Yabes (Costs) - [2017] FCWA 73

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: JARBIN and YABES (COSTS) [2017] FCWA 73

CORAM: O'BRIEN J

HEARD: 1 MAY 2017

DELIVERED : 12 JUNE 2017

FILE NO/S: PTW 2015 of 2016

BETWEEN: MS JARBIN
Applicant
AND
MR YABES
Respondent

Catchwords:

COSTS - where the Respondent seeks an order for costs in the sum of $55,183 - where the substantive proceedings were dismissed for want of jurisdiction - where it is conceded that circumstances exist justifying an order for costs - where it is conceded that the commencement of the proceedings in the wrong jurisdiction was on advice and that any costs order in favour of the Respondent should be paid by the solicitors for the Applicant - where no steps were taken by the Respondent to foreshorten the proceedings - where costs incurred by the Respondent after an early stage in the proceedings were accordingly not reasonably incurred - costs ordered in a fixed sum of $7,763.

Legislation:

Family Court Act 1997 (WA), s 205X, s 205ZG, s 237
Family Court Rules 1998 (WA), r 1.04, r 1.08, r 13.26, r 19.18
Legal Profession Conduct Rules 2010 (WA), r 23

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Kitto
Respondent: Mr J Hedges

Solicitors:

Applicant: Kitto & Kitto
Respondent: Kavanagh Lawyers

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

Alsop v Lord Oxford (1833) 39 ER 794
B & Associates (a firm of solicitors) and Bloomfield (2003) FLC 93-155
Braithwaite v Braithwaite [2007] FamCA 468
Deutsch v Deutsch (No 2) [2013] VSC 15
Idaport Pty Ltd v National Australia Bank Limited [2007] NSWSC 23
Nada and Nettle (Costs) (2014) FLC 93-612
Oshlack v Richmond River Council (1998) 193 CLR 72
Re Felton (1942) 60 WN (NSW) 16
Tang & Keats [2016] FamCA 99

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

Background and relief sought

1On 19 April 2016, [Ms Jarbin] (“the applicant”) commenced proceedings seeking the alteration of property interests and interim maintenance. Her application was grounded in her claim that she and [Mr Yabes] (“the respondent”) had been in a de facto relationship.
2The respondent sought the dismissal of the application, on the basis that this Court did not have jurisdiction to determine it. He asserted that the relationship of the parties was not one that could properly be characterised as a de facto relationship as defined in s 13A of the Interpretation Act 1984 (WA).
3The application sought various orders pursuant to the powers granted to the court by Div 2 of Pt 5A of the Family Court Act 1997 (WA) (“the Act”).
4Section 205X of the Act is in the following terms:
205X. People to whom this Part applies — connection with WA
Despite section 36(5), before making an order under [Div 2 of Pt 5A] a court must be satisfied —
(a)that one or both of the parties to the application were resident in Western Australia on…

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 Jarbin and Yabes (Costs)

Details

AGLC: Jarbin and Yabes (Costs) [2017] FCWA 73
Case: [2017] FCWA 73
Decision Date: 12 JUNE 2017

CaseChat Overview and Summary

Jarbin and Yabes, in a matter concerning costs, came before the court. The substantive dispute between the parties was dismissed due to the court's lack of jurisdiction. The Respondent sought an order for costs in the sum of $55,183. The Applicant conceded that the circumstances justified an order for costs, and that the commencement of the proceedings in the wrong jurisdiction was based on advice. It was also conceded that any costs order in favour of the Respondent should be paid by the Applicant's solicitors. Furthermore, the Respondent did not take any steps to shorten the proceedings, and the costs incurred after an early stage were not reasonably incurred.

The legal issues before the court involved determining whether the Respondent was entitled to costs, the appropriate amount, and who should bear the financial burden. The court considered the circumstances under which the proceedings were commenced and the role of the Applicant's solicitors in advising on the jurisdiction. The Respondent's failure to take steps to expedite the proceedings was also a factor in assessing the reasonableness of the costs incurred.

The court decided that the Respondent was entitled to an order for costs, but the amount should be reduced to $7,763. This sum reflected the costs incurred before an early stage in the proceedings, as the later costs were deemed not reasonably incurred. The court also ruled that the Applicant's solicitors should bear the financial burden of the costs order. This decision was based on the concessions made by the Applicant and the circumstances surrounding the commencement of the proceedings.

The court ordered that the Applicant's solicitors pay the Respondent's costs in the sum of $7,763. This order reflected the court's determination that the Respondent was entitled to costs, but only for those incurred before an early stage in the proceedings. The court's decision also acknowledged the role of the Applicant's solicitors in advising on the jurisdiction and the importance of considering the reasonable steps taken by the parties during the proceedings.

Orders