FAMILY LAW – COSTS – Property settlement in relation to marriage – Costs of third party creditors – Where the first intervener seeks costs on an indemnity basis – Where the second intervener seeks costs on a party and party basis – Where the interveners joined the proceedings to claim debts owed to them by the husband – Where the proceedings have been running for 11 years – Where the husband died and the proceedings were continued by a legal personal representative – Consideration of the matters in s 117(2A) of the Family Law Act 1975 (Cth) – Where the circumstances justify an award against the wife for the costs of each of the interveners – Order that the wife pay the costs of the first and second interveners on a party and party basis
Mr Hill, Administrator ad Litem for the Estate of the late Mr Masters
RESPONDENT:
Ms Parsons
FIRST INTERVENERS:
Mr B and Mr C
SECOND INTERVENER:
Mr H
FILE NUMBER:
SYC
2726
of
2013
DATE DELIVERED:
6 June 2017
PLACE DELIVERED:
Sydney
PLACE HEARD:
Sydney
JUDGMENT OF:
Loughnan J
HEARING DATE:
15 & 16 May 2017
REPRESENTATION:
SOLICITOR FOR THE APPLICANT:
Mr Hill
COUNSEL FOR THE RESPONDENT:
Mr Fowler
SOLICITOR FOR THE RESPONDENT:
Carrolls Lawyers
COUNSEL FOR THE FIRST INTERVENERS:
Mr Skinner
SOLICITOR FOR THE FIRST INTERVENERS:
B & C Solicitors
COUNSEL FOR THE SECOND INTERVENER:
Mr Turner
SOLICITOR FOR THE SECOND INTERVENER:
CKB Associates Lawyers
Orders
That the wife pay the costs of the First Interveners and the Second Intervener of and incidental to these proceedings as agreed or assessed.
The Court Noted that the costs of the First Interveners of the proceedings between the First Interveners and the wife in the Supreme Court of New South Wales (case number …) are not costs of and incidental to these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masters & Parsons & Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
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
AGLC
Masters (deceased) & Parsons [2017] FamCA 391
Case
[2017] FamCA 391
Decision Date
CaseChat Overview and Summary
The proceedings before Loughnan J involved a dispute between a wife and two interveners. The wife sought to recover certain assets, which the interveners claimed were theirs. The core of the dispute concerned the ownership of these assets and the wife's entitlement to them.
The primary legal issue before the Court was to determine the costs of the proceedings, specifically whether the wife should be ordered to pay the costs incurred by the First and Second Interveners. A secondary issue arose regarding the costs of separate proceedings in the Supreme Court of New South Wales, and whether those costs were to be considered incidental to the current proceedings.
Loughnan J ordered that the wife pay the costs of the First and Second Interveners in the present proceedings, either as agreed or as assessed by the Court. The Court further clarified that the costs incurred by the First Interveners in separate proceedings in the Supreme Court of New South Wales were not to be considered costs of and incidental to the current proceedings before Loughnan J.
Orders
Orders of the court
1.
That the wife pay the costs of the First Interveners and the Second Intervener of and incidental to these proceedings as agreed or assessed.
2.
The Court Noted that the costs of the First Interveners of the proceedings between the First Interveners and the wife in the Supreme Court of New South Wales (case number …) are not costs of and incidental to these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.