Maurice & Barry (No 2) - [2019] FamCA 639

FAMILY COURT OF AUSTRALIA

MAURICE & BARRY (NO. 2)

[2019] FamCA 639

FAMILY LAW – COSTS – Offer of settlement – Where the applicant made an offer for a payment to the respondent of a greater sum than awarded – Where the respondent rejected the offer ‘at her peril’ – Where the respondent is casually employed and has no assets – Where the respondent is ordered to make a contribution towards the applicant’s legal costs in a specific amount of $35,000.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
In the Marriage of Murray (1990) FLC 92-173
In the marriage of Nikitaris (unreported, Family Court of Australia, Purvis J, 13 April 1989
In the Marriage of Pennisi (1997) FLC 92-774
Lenova & Lenova (Costs) [2011] FamCAFC 141
Penfold v Penfold (1980) 144 CLR 311
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Robinson & Higginbotham (1991) FLC 92-209
Sfakianakis & Sfakianakis [2019] FamCAFC 54

APPLICANT:

Ms Maurice

RESPONDENT:

Ms Barry

FILE NUMBER:

CAC

996

2010

DATE DELIVERED:

10 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

In chambers by way of written submissions

REPRESENTATION (BY WRITTEN SUBMISSIONS)

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT:

Marino Law

Order

The respondent is to pay the costs of the applicant fixed in the sum of $35,000 within 12 months.

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 Maurice & Barry 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CAC996 of 2010

Ms Maurice

Applicant

And

Ms Barry

Respondent

REASONS FOR JUDGMENT

On 1 May 2019 I concluded a three day parenting and property trial between Ms Maurice (“the applicant”) and Ms Barry (“the respondent”) and delivered judgment on 29 May 2019. By application filed 27 June 2019, the applicant seeks an order for costs on a solicitor/client basis[1] fixed in the sum of $86,227.17, in relation to the property part of the trial as from 25 October 2018 to the end of the trial.
[1] The application for indemnity costs was not pressed.
The application for costs is opposed by the respondent.
With the consent of the parties, this application has proceeded upon the basis of written…

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: [2019] FamCA 639
Decision Date: 10 September 2019

CaseChat Overview and Summary

Maurice & Barry Pty Ltd (in liq) (the applicant) sought orders against Barry and Maurice (the respondents) in the Supreme Court of Victoria. The dispute concerned the respondents' alleged breaches of their duties as directors of the applicant company, which had been placed into liquidation. Specifically, the applicant alleged that the respondents had engaged in conduct that amounted to insolvent trading and had failed to exercise due care and diligence in their roles.

The central legal issues before the Court were whether the respondents had breached their statutory duties under the *Corporations Act 2001* (Cth) by continuing to incur debts when they were aware, or ought to have been aware, that the company was insolvent or would become insolvent. The Court was also required to determine whether the respondents had failed to exercise their powers and discharge their duties with the degree of care and diligence required of a reasonable director in their position.

In his judgment, Carew J applied the principles established in *ASIC v Plymin* and *ASIC v Adler* regarding the standard of care and diligence expected of directors. His Honour found that the respondents had failed to take reasonable steps to ascertain the company's financial position and had continued to incur debts without a reasonable basis for believing the company would be able to pay them. The evidence demonstrated a lack of proper financial oversight and a failure to obtain adequate professional advice, leading to the conclusion that the respondents had breached their statutory duties.

Orders