LM and ZJL and SZ - [2007] FMCAfam 691

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LM& ZJL & SZ

[2007] FMCAfam 691

PRACTICE & PROCEDURE – Costs – application for personal costs order against lawyer – whether conduct amounted to negligence, misconduct or default – application dismissed.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Baik & Hankuk Grocery Pty Ltd v Minister for Immigration [2004] FMCA 543
Cassidy & Murray (1995) FLC 92-633
Kumar v Minister for Immigration & Multicultural & Indigenous Affairs
(No 2)(2004) FCA 18
Landy & Landy & McVeigh [2004] FamCA 1315
De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) FCR 544

Applicant:

First Respondent:

ZJL

Second Respondent:

File number:

SYM 4344 of 2005

Judgment of:

Sexton FM

Hearing dates:

11 July & 3 August 2007

Date of last submission:

3 August 2007

Delivered at:

Sydney

Delivered on:

17 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr S Docker and Mr C Carroll

Solicitors for the Applicant:

Guardian Legal

First Respondent:

No appearance

Counsel for the Second Respondent:

Mr W Moss

Solicitors for the Second Respondent:

Zolton Smith Lawyers (not the firm’s real name)

ORDERS

The application filed by the husband on 14 July 2006, as amended by application filed 1 November 2006 seeking costs against the Second Respondent be dismissed.
The application for costs by the Second Respondent against the husband be dismissed.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 4344 of 2005

Applicant

And

ZJL

First Respondent

And

Second Respondent

REASONS FOR JUDGMENT

Introduction

Mr Samuel Zolton (not his real name) was the solicitor for the wife who started proceedings against the husband for property and spouse maintenance orders and later discontinued them. This case concerns the conduct of Mr Zolton in those proceedings for financial orders. The husband asks for a personal costs order against Mr Zolton on an indemnity basis. Mr Wei is the husband’s solicitor. At first, the husband asked for costs against the wife as well as Mr Zolton, but he later discontinued his application against the wife.
The husband has a number of complaints about Mr Zolton’s conduct which he contends, when considered together, warrant a personal costs order against Mr Zolton.

Background

The husband and wife were married in December 2001 with the wife returning to China 2 years later to await a visa for permanent entry to Australia. In June 2004 the husband withdrew his support for the wife to obtain a visa. Each party had a child from a previous relationship but there are no children of this marriage. In May 2005 the husband filed an Application for Divorce which the wife opposed, and the husband later discontinued. The wife retained Mr Zolton in relation to the divorce proceedings and in relation to property and spouse maintenance proceedings. The…

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: [2007] FMCAfam 691
Decision Date: 17 September 2007

CaseChat Overview and Summary

The case of LM and ZJL and SZ was heard in a family law court. The dispute involved a husband seeking costs against the second respondent, who was a party to the proceedings. The second respondent also sought costs against the husband. The court was tasked with deciding whether the husband or the second respondent was entitled to recover costs from the other party.

The central legal issue before the court was the allocation of costs between the husband and the second respondent. The court had to consider the conduct of both parties throughout the proceedings and determine whether either party was entitled to an order for costs. The court also needed to assess whether the applications for costs were appropriate and whether there were any grounds for dismissing the applications.

The court found that neither party was entitled to recover costs from the other. The judge noted that both parties had acted reasonably and in good faith throughout the proceedings. The court considered the conduct of both parties, including their willingness to settle and their conduct during the hearings. The judge concluded that neither party's conduct warranted an order for costs. The court dismissed both applications for costs and ordered that all exhibits be returned unless an appeal was lodged. The court also dismissed all other outstanding applications and removed the matter from the list of cases awaiting finalisation.

Orders

Orders of the court

The application filed by the husband on 14 July 2006, as amended by application filed 1 November 2006 seeking costs against the Second Respondent be dismissed.

The application for costs by the Second Respondent against the husband be dismissed.

All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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

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