LF v RA (No 2) - [2006] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:

LF v RA (No 2) [2006] QSC 072

PARTIES:

LF
(applicant)
v
RA
(respondent)

FILE NO/S:

BS No 3070 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

White J

ORDER:

The respondent pay the applicant $1,000 in respect of the costs associated with the failure to admit a fact.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – application for costs under s 341 Property Law Act 1974 – where applicant engaged expert – where respondent had opportunity to admit facts for which expert instead required – whether respondent liable for applicant’s costs

Family Law Act 1965 (Cth)
Property Law Act 1974 (Qld) Part 19, s 341.
Uniform Civil Procedure Rules1999 (Qld) r 689, r 691.

Cinema Press Ltd v Pictures & Pleasures Ltd [1945] KB 356, considered
E v S [2003] QSC 738, cited
S v B [2004] QSC 80, cited
Van Jole v Cole [2000] NTSC 18, cited

COUNSEL:

CA Cooper, solicitor, for the applicant
BA Laurie for the respondent

SOLICITORS:

Primrose Couper Cronin Rudkin for the applicant
Jones Mitchell for the respondent

The applicant seeks an order that the respondent pay her costs of and incidental to the principal application which was made for a property adjustment order pursuant to Part 19 of the Property Law Act 1974.

The evidence in chief at trial was given by affidavit and the hearing occupied one day on 24 November 2005. The parties’ lawyers provided written submissions and judgment was delivered on 22 December 2005, [2005] QSC 375. Leave was given to the parties to confer, through their lawyers, and propose different wording for the orders than the proposed orders set out at the conclusion of the reasons.

The parties reached agreement on a different form of order consistent with the reasons and which I signed on 6 February 2006.

On 22 December 2005 the parties were given leave to make submissions about any costs orders within 28 days. The applicant filed submissions seeking costs on 19 January 2006. The respondent opposed those orders by written submissions filed 27 March 2006. No point is taken about the delay in responding. The applicant’s response was received in the Registry on 30 March 2006.

Section 341 of the Property Law Act 1974 contained in Part 19 (which concerns de facto relationships) provides for a different costs regime to that of the Uniform Civil Procedure Rules. Rule 689 of the UCPR sets out the general rule that costs of a proceeding are in the discretion of the court but follow the event unless the court considers another order is more appropriate. Rule 691 provides

“A party to a proceeding can not recover any costs of the proceeding from another party other than under these rules or an order of the court.”

An order 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 LF v RA (No 2)

Details

AGLC: LF v RA (No 2) [2006] QSC 72
Case: [2006] QSC 72
Decision Date: 10 April 2006

CaseChat Overview and Summary

The matter before the court involved a dispute between LF, the applicant, and RA, the respondent, regarding the adjustment of property interests within the context of their de facto relationship. The court was asked to consider an application for costs under section 341 of the Property Law Act 1974. LF sought reimbursement of costs incurred due to RA's failure to admit a specific fact, which necessitated the engagement of an expert witness. The case was heard in the Family Court of Australia.

The central legal issue before the court was whether RA was liable for the costs incurred by LF due to the failure to admit a fact that the respondent had the opportunity to admit but chose not to. The court had to consider whether RA's refusal to admit the fact constituted an abuse of process and whether such a refusal justified the imposition of costs under the relevant statute. The court also needed to assess the reasonableness of LF's decision to engage an expert witness to establish the facts in question.

The court determined that RA's refusal to admit the fact in question was unreasonable and constituted an abuse of process. It was noted that RA had ample opportunity to admit the fact but chose not to do so, leading to the unnecessary engagement of an expert witness by LF. The court found that such behaviour warranted the imposition of costs under section 341 of the Property Law Act 1974. Accordingly, the court ordered RA to pay LF $1,000 in respect of the costs associated with the failure to admit the fact.

The final orders of the court were that the respondent, RA, pay the applicant, LF, the sum of $1,000 in respect of the costs incurred due to the failure to admit a fact. This decision underscores the importance of parties to a dispute adhering to the principles of fairness and reasonableness in their conduct during litigation.

Orders

Orders of the court

The respondent pay the applicant $1,000 in respect of the costs associated with the failure to admit a fact.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	LF v RA (No 2) [2006] QSC 072
PARTIES:	LF (applicant) v RA (respondent)
FILE NO/S:	BS No 3070 of 2004
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	White J
ORDER:	The respondent pay the applicant $1,000 in respect of the costs associated with the failure to admit a fact.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – application for costs under s 341 Property Law Act 1974 – where applicant engaged expert – where respondent had opportunity to admit facts for which expert instead required – whether respondent liable for applicant’s costs Family Law Act 1965 (Cth) Property Law Act 1974 (Qld) Part 19, s 341. Uniform Civil Procedure Rules1999 (Qld) r 689, r 691. Cinema Press Ltd v Pictures & Pleasures Ltd [1945] KB 356, considered E v S [2003] QSC 738, cited S v B [2004] QSC 80, cited Van Jole v Cole [2000] NTSC 18, cited
COUNSEL:	CA Cooper, solicitor, for the applicant BA Laurie for the respondent
SOLICITORS:	Primrose Couper Cronin Rudkin for the applicant Jones Mitchell for the respondent