Johnston & Johnston - [2004] FamCA 556

[2004] FamCA 556

FAMILY LAW ACT 1975

IN THE FULL COURT

OF FAMILY COURT OF AUSTRALIA Appeal No. NA 59 of 2003
AT BRISBANE File No. PAF 3733 of 2002

BETWEEN:

MURRAY HUGH JOHNSTON Appellant Husband

and

HELENE DAWN JOHNSTON Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Ellis, Finn and Guest JJ
Date of Hearing:                9 March 2004
Date of Judgment:              21 June 2004

Appearances:

Mr T North SC (instructed by E Philips & Company,
  Solicitors 149 Pacific Highway, Hornsby NSW 2077)
  appeared on behalf of the Appellant husband
Mr T Kirk, SC (instructed by Berck & Associates,
  Solicitors, Quay Central, 95 North Quay, Brisbane
  QLD 4000) appeared on behalf of the Respondent
  wife

JOHNSTON & JOHNSTON

NA 59 of 2003
PAF 3733 of 2002

Coram: Ellis, Finn & Guest JJ

Date of Hearing: 9^th Day of March 2004

Date of Judgment: 21^st Day of June 2004

Catchwords: FAMILY LAW- APPEALS – Costs – Appeal by the husband against an order that he pay the wife’s costs of and incidental to contested property settlement proceedings – discretionary decision - whether the trial judge erred in her interpretation of various offers of settlement exchanged between the parties prior to the trial – whether the term “monetary value” introduced by the wife in her response to the husband’s offer was ambiguous or unclear – in the context of the various offers of settlement, the term “monetary value” was ambiguous – the terms of offers of settlement should be framed clearly and with precision.

Appeal allowed

Discretion re-exercised

Harris v Harris (1987) FLC 91-822

INTRODUCTION

This is an appeal by MURRAY HUGH JOHNSTON (“the husband”) against an order made by Moore J on 17 October 2003 which required the husband to pay to HELENE DAWN JOHNSTON (“the wife”) her costs (as and from 20 February 2003) of and incidental to contested property settlement proceedings between the parties. The proceedings were heard by her Honour on 4, 5, and 6 August 2003.

THE PROPERTY SETTLEMENT DECISION AND ORDERS

Before turning to her Honour’s reasons for making the costs order in favour of the wife, it will be of assistance to shortly consider, by way of background, certain aspects of her Honour’s reasons delivered 14 August 2003. At trial, her Honour was charged with the task of determining competing claims by the parties for settlement of property and a claim by the wife for spousal maintenance.
The parties were married for some 20 years and had one child who was over 18 years of age at the time of the hearing. They had modest assets at the time of marriage and as a result of their long union, her Honour found that the parties’ assets, liabilities and resources as at the date of the hearing were as follows:
A.Assets/liabilities including notional
Adjustments  $1,214,321
B.Superannuation (to be subject to
Splitting Order)  $609,969
C.Other assets/resources  $735,121
Item C appearing in the preceeding paragraph attracted substantial argument in the costs determination before her…

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 Johnston & Johnston

Details

AGLC: Johnston & Johnston [2004] FamCA 556
Case: [2004] FamCA 556
Decision Date: 21 June 2004

CaseChat Overview and Summary

The case of *Johnston & Johnston* concerned a dispute between the applicant, Johnston, and the respondent, Johnston & Johnston. The applicant sought to restrain the respondent from using the name "Johnston" in connection with its business. The matter came before the Full Court of the Supreme Court of Tasmania.

The central legal issue before the court was whether the respondent's use of the name "Johnston" in its business name constituted a breach of the applicant's rights, specifically in relation to passing off or misleading and deceptive conduct. The court was required to consider the extent to which an individual's personal name could be protected as a business name and the circumstances under which the use of a common surname by a company could be deemed misleading.

The court reasoned that while an individual has a right to use their own name in business, this right is not absolute and must be balanced against the rights of others to conduct business without being subjected to unfair competition. The court applied principles of common law passing off and the provisions of consumer protection legislation, focusing on whether the respondent's conduct was likely to deceive or confuse the public into believing that its business was associated with the applicant's. The court considered the reputation and goodwill established by the applicant in the use of the name "Johnston" and the potential for the respondent's activities to divert custom.

The court ultimately found in favour of the applicant, ordering that the respondent be restrained from using the name "Johnston" in connection with its business.

Orders