Meadows v Vance

Case [2016] FCCA 1814


FEDERAL CIRCUIT COURT OF AUSTRALIA

MEADOWS & VANCE [2016] FCCA 1814

Catchwords:
FAMILY LAW – Property – Application for Property Settlement – just and equitable – contributions of the parties – whether adjustment should be made under Family Law Act 1975 (Cth) s.90SF(3) – de facto relationship – application for declarations – proprietary estoppel – application for declaration that in equity the Respondent is estopped from denying that the Applicant altered her position in the expectation of obtaining an equitable interest in property – relatively short period of cohabitation – no children from the relationship.

COSTS – Application for costs – where Respondent seeks costs of hearing that did not proceed due to illness of counsel for the Applicant – indemnity costs – party and party and party costs – costs certificate – where hearing had to be adjourned due to illness of Applicant’s Counsel – whether a costs certificate should issue under Federal Proceedings (Costs) Act 1981 (Cth), s.10(3) – whether costs should be assessed on an indemnity basis.

Legislation:

Family Law Act 1975 (Cth), ss.79, 90RA, 90RD, 90SF, 90SK, 90SL, 90SM, 117

Federal Proceedings (Costs) Act 1981 (Cth), s.10
Federal Circuit Court Rules 2001, r.13.03C, Sch. 1, Part 1

Cases cited:

Bevan & Bevan (2013) 49 Fam LR 387; FLC 93-545;[2013] FamCAFC 116
Bolger & Headon (2014) FLC 93-575; [2014] FamCAFC 27
Colan Products Pty Ltd v Luxon (No.2) [2002] FMCA 90
Colgate Palmolive Co v Cussons Pty Ltd (1993) FCR 225; 118 ALR 248; [1993] FCA 536
Delaforce v Simpson-Cook [2010] NSWCA 84
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Farmer & Bramley (2000) 27 Fam LR 316; FLC 93-060; [2000] FamCA 1615
Ferraro & Ferraro (1993) 16 Fam LR 1; FLC 92-335
Flinn v Flinn [1993] 3 VR 712 CA
G & G (1984) FLC 91-582
Gillett v Holt [2001] Ch 210 CA 226
Giumelli v Giumelli (1999) 196 CLR 101
Griffin & Croft [2015] FCCA 2685
Grundt v Great Boulder Proprietary Gold Mines Ltd (1938) 50 CLR 641
Harding & North [2016] FCCA 1673
Hepworth v Hepworth (1963) 110 CLR 309
Hickey & Hickey (2003) 30 Fam LR 35; FLC 93-143; [2003] FamCA 395
Jennings v Rice [2003] IP & CR 100
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Lovine & Connor & Anor (2012) FLC 93-515; [2012] FamCAFC 168
Lummis & Lummis [2008] FMCAfam 1274
Mallet v Mallet (1984) 156 CLR 605
Meadows & Vance [2011] FMCAfam 1163
Marsh & Marsh (2009) 42 Fam LR 310; [2009] FMCAfam 1160
Minchin & McDonald [2012] FMCAfam 1328
Norbis v Norbis (1986) 161 CLR 513
Plimmer v Mayor of Wellington (1884) 9 App. Cas.699
Prantage & Prantage (2013) 49 Fam LR 197; FLC 93-544; [2013] FamCAFC 105
Redshaw & Redshaw (1989) 13 Fam LR 495; FLC 92-053
Stanford v Stanford (2012) 247 CLR 108; 47 Fam LR 481; FLC 93-518; [2012] HCA 52
In the Marriage of Tyson (No.2) (1993) 16 Fam…

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Details
AGLC
MEADOWS & VANCE [2016] FCCA 1814
Case
[2016] FCCA 1814
Decision Date

CaseChat Overview and Summary

In *Meadows v Vance*, heard by Judge Scarlett, the applicant sought property settlement orders following the breakdown of a de facto relationship. The dispute also involved an application for declarations, including one based on proprietary estoppel, where the applicant asserted she had altered her position in the expectation of acquiring an equitable interest in property. The relationship was of a relatively short duration and no children were born of the union.

The court was required to determine whether a property settlement should be made on a just and equitable basis, considering the contributions of both parties. A further issue was whether an adjustment should be made under section 90SF(3) of the *Family Law Act 1975* (Cth). The court also considered an application for costs, specifically whether indemnity costs should be awarded and if a costs certificate should issue under section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth) following an adjournment due to the illness of the applicant's counsel.

The court's reasoning, as reflected in the orders, indicates a division of assets and liabilities that largely reflects their separate possession and names. The applicant was awarded all personal property in her possession or name, including specific vehicles and financial assets, while the respondent received sole entitlement to the real property and his personal property. Both parties were ordered to indemnify each other in respect of liabilities in the other's name. The court also ordered the applicant to pay the respondent's costs thrown away due to the adjournment of a hearing on 1 December 2015, fixed at $5,136.00. Any further applications for costs were to be made by a specified date.

Orders

Orders of the court

1.

The Applicant is to be solely entitled to the exclusion of the Respondent to the all items of personal property in her possession or standing in her name including:

(a) The boat and replacement engine;

(b) Ford Falcon (omitted);

(c) Mitsubishi Pajero;

(d) Mobile home;

(e) All items of furniture and furnishings; and

(f) All bank accounts, insurance policies, superannuation interests and all other items currently in her sole name or possession.

2.

The Respondent is to be solely entitled to the exclusion of the Applicant to all of his right title and interest in the real property being Lot (omitted) in Deposited Plan (omitted) situate at and known as Property S in the State of New South Wales.

3.

The Respondent is to be solely entitled to the exclusion of the Applicant to the all items of personal property in his possession or standing in his name including:

(a) All motor vehicles including motor cycles;

(b) All items of furniture and furnishings; and

(c) All bank accounts, insurance policies, superannuation interests and all other items currently in his sole name or possession.

4.

The Applicant is to indemnify the Respondent and keep him indemnified in respect of all liabilities including mortgages, loans and credit card debts in her name.

5.

The Respondent is to indemnify the Applicant and keep her indemnified in respect of all liabilities including mortgages, loans and credit card debts in his name.

6.

The Applicant is to pay the Respondent’s costs thrown away in respect of the proceedings on 1 December 2015 fixed in the sum of $5,136.00 within six (6) months of the date of this Order.

7.

In the event that either party seeks an order that the other party should pay their costs of these proceedings then that party or parties must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and the basis upon which those costs are calculated by Monday 25 July 2016.

8.

All other Applications are dismissed.

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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