Jones & Anor & Markham - [2010] FamCA 1026

FAMILY COURT OF AUSTRALIA

JONES AND ANOR & MARKHAM

[2010] FamCA 1026

FAMILY LAW – COSTS – Application for costs pertaining to previous substantive property proceedings – Application for costs was not filed within 28 days pursuant to the Family Law Rules 2004, r 19.08(2)(b) – Finding that the respondent suffers no irremediable prejudice in having to address the application for costs out of time – Leave is granted pursuant to the Family Law Rules 2004, r 1.14 to bring the application for costs out of time – Costs in the Family Court are regulated by the Family Law Act 1975, s 117 which provides each party bears his or her own costs of proceedings – In substantive proceedings the respondent had brought a suit in equity against the applicants – Finding that the respondent shall pay the costs of the applicants in respect of the equity suit which he unsuccessfully prosecuted against them – Application for costs insofar as it relates to the residual matrimonial aspects of the previous substantive proceedings is dismissed – Apportionment of costs is one-third to the equity suit and two-thirds to the matrimonial proceedings

Family Law Act 1975 (Cth) s 117
Family Law Rules 2005 rr 1.14 and 19.08(2)(b)

Gallo v Dawson (1990) 93 ALR 479
Marriage of Tormsen (1993) 18 Fam LR 232
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Maitland v Nationwide News Pty Ltd [2004] NSWCA 155

1st APPLICANT:

Ms Jones

2nd APPLICANT:

Ms Elder

RESPONDENT:

Mr Markham

FILE NUMBER:

NCC

2156

2007

DATE DELIVERED:

27 October 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

27 October 2010

REPRESENTATION

COUNSEL FOR THE 1st APPLICANT:

Not Applicable

SOLICITOR FOR THE 1st APPLICANT:

Mr Hill, Hills Solicitors

COUNSEL FOR THE 2nd APPLICANT:

Not Applicable

SOLICTOR FOR THE 2nd APPLICANT:

Mr Hill, Hills Solicitors

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Ms Monnox, Kim Monnox & Associates

Orders

The respondent shall pay one third of the costs of each applicant incidental to the proceedings concluded by orders made on 9 June 2010, such costs to be in the sums agreed or assessed on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Jones and Anor & Markham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2156 of 2007

MS JONES AND MS ELDER

Applicants

And

MR MARKHAM

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

These proceedings are back before the Court in relation to the issue of costs.
The substantive proceedings were determined by orders and reasons published on 9 June 2010.
Arising out of that decision the third and fourth respondents have now made an application for costs against the applicant. The third and fourth respondents, who are the applicants in the costs dispute (“the applicants”), are the natural children of…

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 Jones & Anor & Markham

Details

AGLC: Jones & Anor & Markham [2010] FamCA 1026
Case: [2010] FamCA 1026
Decision Date: 27 October 2010

CaseChat Overview and Summary

The applicants, Jones & Anor and Markham, brought proceedings before Justice Austin. The nature of the dispute and the specific claims made by the applicants are not detailed in the provided text, beyond the fact that the proceedings concluded with orders made on 9 June 2010.

The central legal issue before the court, as evidenced by the orders, concerned the apportionment of costs between the parties following the conclusion of the proceedings. Specifically, the court was required to determine the extent to which the respondent should bear the costs incurred by the applicants.

Justice Austin ordered that the respondent was to pay one third of the costs of each applicant. These costs were to be in relation to the proceedings that concluded on 9 June 2010, and were to be calculated either by agreement between the parties or, failing agreement, assessed on a party and party basis.

Orders

Orders of the court

The respondent shall pay one third of the costs of each applicant incidental to the proceedings concluded by orders made on 9 June 2010, such costs to be in the sums agreed or assessed on a party/party basis.

Background

Background to the litigation

Full text does not contain this section.

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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