Lindsay and Lindsay & Ors - [2014] FamCA 1086

FAMILY COURT OF AUSTRALIA

LINDSAY & LINDSAY AND ORS

[2014] FamCA 1086

FAMILY LAW – COSTS – Where certain aspects of the wife’s claim were heard and determined as separate and preliminary matters – Where the Court determined the claims should all be dismissed – Where the first respondent husband sought costs against the wife – Where proceedings were not necessitated by the failure of a party to comply with a previous order – Where wife had been wholly unsuccessful in the preliminary questions, however the balance of proceedings as against the husband remain to be determine – Where Court satisfied the question of costs of the preliminary proceedings between the husband and wife should be reserved to the ultimate trial judge.

FAMILY LAW – COSTS - Where certain aspects of the wife’s claim were heard and determined as separate and preliminary matters – Where the Court determined the claims should all be dismissed – Where second and third respondent’s sought costs against the wife’s solicitor or the wife in the alternative – Where Court noted section 117 extends to making an order for costs against a solicitor or non-party – Where court noted that on the facts of the case something more is required than the solicitors prosecution on behalf of a client of a weak case that in total fell short of being absolutely hopeless – Where Court declined to make an order for costs against the wife’s solicitors – Where Court not persuaded there were circumstances justifying the departure from the usual order in relation to costs – Where Court declined to make an order that the wife pay the second and third respondent’s costs.

Evidence Act (Cth) s 140
Family Law Act 1975 (Cth) s 117, 118
Family Law Rules 2004 (Cth) r 19.08, 19.10, 19.18

Cassidy v Murray (1995) FLC 92-633
Kohan v Kohan (1993) FLC 92-340
Lemoto v Able Technical Pty Ltd & Ors (2005) 63 NSWLR 300
Muldoon v Carlyle (2012) FLC 93-513
Yunghanns & Ors v Yunghanns (2000) FLC 92-029
Z (A Solicitor) v Limousin (Costs) [2010] FLC93

APPLICANT:

Ms J Lindsay

1^ST RESPONDENT:

2^ND RESPONDENT:

3^RD RESPONDENT:

4^TH RESPONDENT

Mr C Lindsay

Mr R Lindsay

Ms A Lindsay

Mr S Lindsay

FILE NUMBER:

ROC

714

2009

DATE DELIVERED:

24 September 2014

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

Last submission received 23 July 2014

REPRESENTATION

THE APPLICANT:

In person

SOLICITORS FOR THE 1^ST RESPONDENT:

Michael Stockall

COUNSEL FOR THE 2^ND AND 3^RD

RESPONDENTS:

Ms Carew QC

SOLICITORS FOR THE 2^ND AND 3^RD RESPONDENTS:

South & Geldard Solicitors

COUNSEL FOR COLIN FLEMING & COMPANY:

Dr Brasch

Orders

The first respondent’s Application for Costs be reserved to the Trial Judge.
The second and third respondents’ Application for costs be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindsay & Lindsay (No 2) has been approved by the Chief Justice pursuant to…

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.

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Details

Case: [2014] FamCA 1086
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the matter of *Lindsay and Lindsay & Ors*, heard before Tree J, the wife had brought certain claims that were determined as separate and preliminary matters. These claims were ultimately dismissed by the Court. The first respondent, the husband, sought costs against the wife. The second and third respondents also sought costs against the wife, or in the alternative, against her solicitor.

The legal issues before the Court concerned the appropriate orders for costs arising from the preliminary proceedings. Specifically, the Court had to determine whether the wife should be ordered to pay the husband's costs, and whether the second and third respondents should be awarded costs against the wife or her solicitor. The Court also considered the circumstances under which costs might be ordered against a solicitor personally.

Regarding the husband's application for costs, Tree J was satisfied that the question of costs for the preliminary proceedings between the husband and wife should be reserved to the ultimate trial judge, noting that while the wife had been wholly unsuccessful in these preliminary questions, the balance of the proceedings as against the husband remained to be determined. In relation to the second and third respondents' applications, the Court noted that while section 117 of the *Family Law Act 1975* (Cth) permits costs orders against solicitors or non-parties, something more than the mere prosecution of a weak, though not entirely hopeless, case is required. The Court was not persuaded that the circumstances justified a departure from the usual order in relation to costs, and therefore declined to make an order for costs against the wife's solicitors or to order that the wife pay the second and third respondents' costs.

Consequently, the Court ordered that the first respondent's application for costs be reserved to the Trial Judge, and the second and third respondents' applications for costs be dismissed.

Orders

Orders of the court

The first respondent’s Application for Costs be reserved to the Trial Judge.

The second and third respondents’ Application for costs be dismissed.

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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