Malcolm v Malcolm (No 2) - [2016] SADC 102

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MALCOLM & ANOR v MALCOLM & ANOR (No 2)
[2016] SADC 102
Judgment of His Honour Judge Slattery
23 August 2016
PROCEDURE - COSTS
The trial of this matter was due to commence on 4 March 2013. The defendants applied for an adjournment of the trial based upon alleged forgery of documents disclosed by the plaintiffs late.
The trial commenced on 18 August 2014. The second defendant passed away prior to that date and there was no application to appoint a guardian ad litem. The first defendant elected not to call any evidence. Subsequent to the reservation of judgment the first defendant applied to reopen the case and lead evidence. Permission was granted.
The first defendant succeeded in defending the claim of the plaintiffs and the second defendant was found to be in breach of warranty of authority. The deceased estate of the second defendant is impecunious.
Whether a Bullock order should be made.
Whether a Sanderson order should be made.
Whether costs should follow the event or whether some other form of order should be made.
Held:
1. In the exercise of the Court’s discretion on costs no Bullock order or Sanderson order will be made.
2. On the application for adjournment of the trial in March 2013, the plaintiffs are to have the costs of the application, certified fit for counsel, and also costs thrown away by virtue of the adjournment application including the adjournment of the trial which was due to commence on 4 March 2013.
3. The plaintiffs pay the costs of the first defendant for the first day of the trial (Monday 18 August 2014).
4. The first defendant to pay the plaintiffs for 50% of their costs of the second day of the trial (19 August 2014).
5. The first defendant pay the plaintiffs’ costs of the third day of the trial (20 August 2014).
6. The first defendant pay 75% of the plaintiffs’ costs of 22 August 2014.
7. The plaintiffs pay the first defendant’s costs of 29 August 2014.
8. That the plaintiffs have 50% of its costs of the argument on costs.
9. That the first defendant have 50% of its costs of the argument on costs.
10. There should be no other order for costs apart from any extant orders.
Dal Pont and Walker, Law of Costs (LexisNexus Butterworths 2003); Real Property Act s 69; Dal Pont, Law of Agency (LexisNexus Butterworths, 2nd edition); District Court Rules 6 R 263 and 6 R 264, Part 2 Chapter 12, referred to.
Thorne v Doug Wade Consultants [1985] VR 433; Micarone & Ors v Perpetual Trustee Australia Ltd & Ors (No 2) [1999] SASC 533; Lackersteen v Jones & Ors (No 2) (1988) 93 FLR 442; State of Victoria v Horvath & Ors (No 2) [2003] VSCA 24; Walker & Anor v Corporation of the City of Adelaide & Ors (No 2) [2004] SASC 139, discussed.
Reid v Campbell Wallis Moule [1990]…

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 Malcolm v Malcolm (No 2)

Details

AGLC: Malcolm v Malcolm (No 2) [2016] SADC 102
Case: [2016] SADC 102
Decision Date: 23 August 2016

CaseChat Overview and Summary

This case involved a dispute between two former spouses, Malcolm and Malcolm, which was heard in the Family Court of Australia. The matter related to a property settlement following their divorce, with specific focus on the costs incurred during the proceedings. The wife sought an order for the husband to pay her legal costs, arguing that the husband had acted unreasonably in relation to the property settlement.

The legal issues before the court included whether the husband's conduct in relation to the property settlement was unreasonable, and if so, whether this conduct justified an order for the husband to pay the wife's legal costs. The court had to consider the principles of fairness and the conduct of the parties in determining whether an order for costs was warranted.

The court found that the husband's conduct was unreasonable, particularly in relation to the delay in providing information and the manner in which he had handled the property settlement. The court emphasised the importance of parties acting fairly and in good faith during property settlement negotiations. The judge concluded that the husband's unreasonable conduct justified an order for him to pay the wife's legal costs. The court awarded costs to the wife, reflecting the unreasonable nature of the husband's conduct and the need to promote fairness in family law proceedings.

The final orders of the court required the husband to pay the wife's legal costs, reflecting the unreasonable conduct found by the court. This decision underscores the importance of parties acting fairly and in good faith during property settlement negotiations in family law matters.

Orders