MELTON & MELTON - [2013] FamCAFC 189

FAMILY COURT OF AUSTRALIA

MELTON & MELTON

[2013] FamCAFC 189

FAMILY LAW – APPEAL – COSTS CERTIFICATES – where at the hearing of the appeal proposed consent minutes of order were tendered to the Court finalising the appeal – where the husband and the wife made oral applications for costs certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) – where all of the necessary conditions for the granting of costs certificates are satisfied – orders made as sought.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
B and B (Costs Certificates) (2007) FLC 93-339
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Melton

RESPONDENT:

Ms Melton

FILE NUMBER:

LEC

461

2009

APPEAL NUMBER:

2013

DATE DELIVERED::

29 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace and Kent JJ

HEARING DATE:

25 November 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

25 January 2013

LOWER COURT MNC:

[2013] FMCAfam 60

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kirk SC

SOLICITORS FOR THE APPELLANT:

Christopher Hughes & Associates

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITORS FOR THE RESPONDENT:

Simonidis Steel

IT IS ORDERED BY CONSENT:

That the Appeal be allowed.
That the Orders made by Judge Demack (then Federal Magistrate Demack) on 25 January 2013 be set aside and the following orders be substituted therefor:
1.That within fourteen (14) days of the date hereof, that the Wife do all acts and things and sign all documents to transfer to the Husband, all her right title and interest in the property located at M in the State of New South Wales (“the M property”), and simultaneous with the transfer, the Husband shall do all acts and things, pay all monies to release the Wife from the Guarantee given by her over that property.
2.That within fourteen days (14) days of the date of the Orders the Wife will transfer to the Husband all shares held by her in F Pty Ltd and the Husband indemnify the Wife in respect of any liability that may arise as a result of her involvement as a shareholder and guarantor and use his best endeavours to have any guarantee given by her in respect of the operation of the said company to be released.
3.That the parties do all things and sign all documents necessary to effect the sale of the property located at W in the State of New South Wales (“the W property”) on the following terms and conditions:
(a) Mr S of C Real Estate (“the agent”) be appointed to sell the W property;
(b)The property be listed forthwith at $590,000 but the parties are bound to accept any offer of $580,000 or more;
(c)In the event that the W property fails to sell within 12 weeks of listing by private treaty then the property is to be sold by public auction unless otherwise agreed in…

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: MELTON & MELTON [2013] FamCAFC 189
Case: [2013] FamCAFC 189
Decision Date: 29 November 2013

CaseChat Overview and Summary

This case involved an appeal by Mr Melton (the appellant) against property settlement orders made by the Federal Magistrate (the lower court). The appeal was heard by the Full Court of the Family Court of Australia at Brisbane. The central legal issues were whether the necessary conditions for the granting of costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied, particularly in relation to the existence of a federal appeal, whether the appeal had succeeded on a question of law, and whether the court had 'heard' the appeal. The appeal was ultimately settled by consent, and the lower court's orders were set aside and replaced with new orders.

The Full Court examined the conditions for the granting of costs certificates under sections 6 and 9 of the Costs Act. It found that all the necessary conditions were satisfied. Firstly, there was a federal appeal, as the appeal was from the Federal Magistrates Court to the Family Court. Secondly, the appeal had succeeded on a question of law, as there were clear errors of law in the lower court's judgment which were conceded by the wife. Finally, the court had 'heard' the appeal, as it had been listed before the court for a hearing, satisfying the requirement that the matter be disposed of in a public and formal manner.

In conclusion, the Full Court determined that all the necessary conditions for the granting of costs certificates were satisfied, and it made the orders sought by both parties. The husband was granted a costs certificate under section 9 of the Costs Act, and the wife was granted a costs certificate under section 6. Each party was ordered to bear their own costs of the appeal.

Orders