Layton & Layton (No 2) - [2022] FedCFamC1F 828

Federal Circuit and Family Court of Australia
(DIVISION 1)
Layton & Layton (No 2) [2022] FedCFamC1F 828

File number(s): BRC 8675 of 2021

Judgment of: HOGAN J

Date of judgment: 27 October 2022

Catchwords: FAMILY LAW – COSTS – Where the Court is persuaded that the circumstances justify the making of an order for costs on the party and party basis.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Lenova and Lenova (Costs) [2011] FamCAFC 141

Markoska and Markoska (Costs) (2012) 46 Fam LR 598; [2011] FamCA 833

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Division: First instance

Number of paragraphs: 16

Date of last submission/s: 21 October 2022

Date of hearing: Determined in Chambers following the receipt of written submissions

Counsel for the Applicant: Mr Wilson of King’s Counsel by way of written submissions in response filed 14 October 2022

Solicitor for the Applicant: Ryan Kruger Lawyers

Solicitor for the First Respondent: Barry Nilsson Lawyers – no requirement for submissions as to costs

Solicitor for the Second Respondent: Merthyr Law – no requirement for submissions as to costs

Counsel for the Proposed Third Respondent: Mr McQuade of King’s Counsel with Mr Wacker of Counsel by way of written submissions filed 7 October 2022 and by way of written submissions in reply filed 21 October 2022

Solicitor for the Proposed Third Respondent: McInnes Wilson Lawyers
ORDERS

BRC 8675 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LAYTON

Applicant

AND:
MR LAYTON

First Respondent

B PTY LTD

Second Respondent

C PTY LTD

Proposed Third Respondent

order made by:

HOGAN J

DATE OF ORDER:

27 October 2022

THE COURT ORDERS THAT:
1.The Applicant pay the proposed Third Respondent’s costs of and incidental to the Application in a Proceeding filed 3 May 2022 and sealed 13 May 2022, including the appearance before a Judicial Registrar on 14 June 2022, on the party and party basis in such amount as agreed between them or assessed on the party and party basis.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by…

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 Layton & Layton (No 2)

Details

AGLC: Layton & Layton (No 2) [2022] FedCFamC1F 828
Case: [2022] FedCFamC1F 828
Decision Date

CaseChat Overview and Summary

In Layton & Layton (No 2), the applicant, Ms Layton, sought leave to join a company, C Pty Ltd, to property settlement proceedings. The Federal Circuit and Family Court of Australia dismissed the application and facilitated an application for costs. The central legal issue was whether the circumstances justified making an order for costs on a party and party basis. The court considered relevant factors such as the applicant's unsuccessful pursuit of the application, the financial circumstances of the parties, and the reasonableness of the applicant's actions.

The court found that the applicant's unsuccessful attempt to join C Pty Ltd to the property settlement proceedings justified making an order for costs. Although the applicant's financial circumstances and the difficulties in meeting a costs order were considered, they did not mitigate against making such an order. The court also noted that the absence of evidence about C Pty Ltd's financial circumstances did not prevent it from inferring that the company's financial situation was not dire. The court concluded that the circumstances justified making an order for costs on a party and party basis.

In summary, the Federal Circuit and Family Court of Australia found that the unsuccessful attempt by Ms Layton to join C Pty Ltd to the property settlement proceedings justified making an order for costs. The court considered the financial circumstances of the parties and the reasonableness of the applicant's actions but ultimately found that the circumstances warranted making an order for costs on a party and party basis.

The court ordered that the applicant pay the proposed third respondent's costs of and incidental to the application in a proceeding on the party and party basis in such an amount as agreed between them or assessed on the party and party basis.

Orders