MACNAB & MACNAB (No.2) - [2015] FCCA 1713

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACNAB & MACNAB (No.2)

[2015] FCCA 1713

Catchwords:
FAMILY LAW – Costs – application for costs of property proceedings – where respondent had failed to file any affidavit or any financial statement – where respondent failed to attend conciliation conference – where respondent failed to attend final hearing of property application – where the court is of the opinion that an order for costs is justified – conduct of the parties to the litigation – financial circumstances of the parties.

Legislation:
Family Law Act 1975 (Cth), s.117

Cases cited:
Bixby & Bixby (No.2) [2015] FCCA 816
Colan Products Pty Ltd v Luxon (No.2) [2002] FMCA 90
Colgate Palmolive v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248

Applicant:

MS MACNAB

Respondent:

MR MACNAB

File Number:

MLC 7374 of 2014

Judgment of:

Judge Scarlett

Hearing date:

19 June 2015

Date of Last Submission:

19 June 2015

Delivered at:

Melbourne

Delivered on:

19 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Adrian Abrahams Family Lawyers

Respondent:

In person

ORDERS

The respondent is to pay the Applicant’s costs of this proceeding fixed in the sum of $29,377.
The costs referred to in the immediately preceding order are to be paid out of the sum of US$22,000 currently standing to the credit of the respondent in the parties’ joint (omitted) Bank Foreign Exchange (Account Number (omitted)) and for the purposes of this order, the Applicant and the respondent are to do all such acts and things and execute all such deed to documents necessary to withdraw from that account an amount equivalent to $29,377 and pay such sum to the Applicant.
In the event that either of the parties refuses, neglects or fails to comply with the direction to execute any deed or document within 14 days of being requested to do so, then in accordance with section 106A of the Family Law Act1975, the Registrar or a Deputy Registrar of this Court at Melbourne is hereby appointed, empowered and directed to sign or execute any such deed or document on behalf of that party upon presentation of such deed or document and an affidavit of the legal practitioner acting on behalf of the Applicant as to the respondent’s failure, refuse or neglect.
The parties are to pay their own costs of the day.
I remove the application from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym MacNab & MacNab (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 7374 of 2014

MS MACNAB

Applicant

And

MR MACNAB

Respondent

REASONS FOR JUDGMENT

The Application before the Court today is an application for costs. The Application is brought by the Applicant. The matter of costs has already been considered by the Court on the last occasion, namely 21 May 2015. On that date…

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 MACNAB & MACNAB (No.2)

Details

AGLC: MACNAB & MACNAB (No.2) [2015] FCCA 1713
Case: [2015] FCCA 1713
Decision Date: 19 June 2015

CaseChat Overview and Summary

In *Macnab & Macnab (No.2)*, the Family Court of Australia, presided over by Judge Scarlett, dealt with an application concerning the payment of costs and the execution of necessary documents to facilitate that payment. The dispute centred on the respondent's obligation to pay the applicant's costs, which had been fixed at $29,377.

The primary legal issue before the court was how to ensure the effective and timely payment of the fixed costs awarded to the applicant. This involved determining the source of funds for the payment and establishing a mechanism to compel the respondent to comply with the court's orders, particularly if they failed to cooperate in the withdrawal of funds. The court also considered the application of section 106A of the *Family Law Act 1975* to overcome potential non-compliance.

Judge Scarlett ordered that the respondent pay the applicant's costs of $29,377, to be drawn from a specific US$22,000 foreign exchange account held jointly by the parties. To ensure compliance, the court directed both parties to execute all necessary documents for the withdrawal. Crucially, in the event of the respondent's refusal or failure to comply within 14 days of a request, the Registrar or a Deputy Registrar of the Court was appointed and empowered to sign or execute any such documents on behalf of the defaulting party, upon presentation of the document and an affidavit of the applicant's legal practitioner detailing the non-compliance. The parties were to bear their own costs for the day of the hearing, and the application was removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The respondent is to pay the Applicant’s costs of this proceeding fixed in the sum of $29,377.

The costs referred to in the immediately preceding order are to be paid out of the sum of US$22,000 currently standing to the credit of the respondent in the parties’ joint (omitted) Bank Foreign Exchange (Account Number (omitted)) and for the purposes of this order, the Applicant and the respondent are to do all such acts and things and execute all such deed to documents necessary to withdraw from that account an amount equivalent to $29,377 and pay such sum to the Applicant.

In the event that either of the parties refuses, neglects or fails to comply with the direction to execute any deed or document within 14 days of being requested to do so, then in accordance with section 106A of the Family Law Act 1975, the Registrar or a Deputy Registrar of this Court at Melbourne is hereby appointed, empowered and directed to sign or execute any such deed or document on behalf of that party upon presentation of such deed or document and an affidavit of the legal practitioner acting on behalf of the Applicant as to the respondent’s failure, refuse or neglect.

The parties are to pay their own costs of the day.

I remove the application from the list of cases awaiting finalisation.

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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