Kent and Kent (No. 4) - [2017] FamCA 1053

FAMILY COURT OF AUSTRALIA

KENT & KENT (NO. 4)

[2017] FamCA 1053

FAMILY LAW – COSTS – circumstances justify the making of an order for costs – Court persuaded that it is just for the order made to specify the amount of the costs payable – costs to be paid within 30 days of the making of final orders or the final resolution of the proceedings

Family Law Act 1975 (Cth)

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
D & D (Costs) (No 2) (2010) FLC 93-435
Harrison v Schipp (2002) 54 NSWLR 738
Idaport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23

APPLICANT:

Ms Kent

RESPONDENT:

Mr Kent

FILE NUMBER:

BRC

11392

2016

DATE DELIVERED:

19 December 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

Determined in Chambers following the receipt of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers (by way of written submissions filed on 13 October 2017 and by written submissions filed in reply on 3 November 2017 )

SOLICITOR FOR THE RESPONDENT:

Hirst & Co (by way of written submissions in reply filed on 27 October 2017)

Orders

IT IS ORDERED THAT

Mr Kent pay Ms Kent’s costs of and incidental to the Application in a Case filed 18 July 2017 and the Response to the Application in a Case filed 4 September 2017, with such costs:
(a)to be in the amount of $7,591.49; and
(b) to be paid within 30 days of either:
(i)the making of a final order in the property settlement proceedings between the parties; or
(ii)the final resolution, by other means, of the property settlement proceedings between the parties.

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 Kent & Kent (No. 4) 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 11392 of 2016

Ms Kent

Applicant

And

Mr Kent

Respondent

REASONS FOR JUDGMENT

On 29 September 2017, I made an order restraining Mr Kent from making any further withdrawal from the E Trust, otherwise dismissed the Application in a Case filed by Ms Kent on 18 July 2017[1] and dismissed paragraphs 2 to 5 inclusive of the Response to Application in a Case filed by Mr Kent on 4 September 2017.
[1] Sealed on 20 July 2017.
I also made orders to facilitate the consideration and determination in Chambers of any application for costs subsequently advanced on behalf of either or both of the parties.

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 Kent and Kent (No. 4)

Details

AGLC: Kent and Kent (No. 4) [2017] FamCA 1053
Case: [2017] FamCA 1053
Decision Date: 19 December 2017

CaseChat Overview and Summary

In *Kent and Kent (No. 4)*, Hogan J of the Family Court of Australia considered an application for costs. The dispute concerned the costs associated with an Application in a Case filed on 18 July 2017 and a Response to the Application in a Case filed on 4 September 2017, within the broader context of property settlement proceedings between Mr Kent and Ms Kent.

The primary legal issue before the court was the quantum and timing of the costs to be awarded to Ms Kent. Specifically, the court was required to determine the specific amount payable and the conditions under which that payment would become due, in relation to the aforementioned applications.

Hogan J ordered that Mr Kent pay Ms Kent’s costs of and incidental to the specified applications. The total amount ordered was $7,591.49. These costs were to be paid within 30 days of either the making of a final order in the property settlement proceedings between the parties or the final resolution of those proceedings by other means.

Orders

Orders of the court

IT IS ORDERED THAT

Mr Kent pay Ms Kent’s costs of and incidental to the Application in a Case filed 18 July 2017 and the Response to the Application in a Case filed 4 September 2017, with such costs:

(a) to be in the amount of $7,591.49; and

(b) to be paid within 30 days of either:

(i) the making of a final order in the property settlement proceedings between the parties; or

(ii) the final resolution, by other means, of the property settlement proceedings between the parties.

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

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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