Moneta and Kimpton and Anor - [2014] FCCA 2622

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONETA & KIMPTON & ANOR

[2014] FCCA 2622

Catchwords:
FAMILY LAW – COSTS – Third party – whether costs against a third party based on Family Law Act or Uniform Civil Procedure Rules – whether costs payable, and if so, on what basis.

Legislation:

Family Law Act 1975 (Cth), ss.79, 117(1), (2) and (2A)

Child Support Assessment Act 1989 (Cth), s.118(1)(a)
Family Law Rules 2004
Federal Circuit Court Rules 2001
Uniform Civil Procedural Rules 2005
Civil Procedure Act 2005 (NSW)

Thorpe& Thorpe and Anor [2012] FamCA 719 at 14
Selen & Selen and Ors [2011] FamCA 310 at 150
Daymond and Anor & Daymond and Ors(Costs) [2014] FamCA 302
Penfold & Penfold (1980) FLC 90-800

I & I (No.2) (1995) FLC 92-625
Weir (1993) FLC 92-338

Applicant:

MS MONETA

First Respondent:

MR KIMPTON

Second Respondent:

MS DUFORT

File Number:

WOC 960 of 2010

Judgment of:

Judge Altobelli

Hearing date:

In Chambers

Date of Last Submission:

1 September 2014

Delivered at:

Wollongong

Delivered on:

24 November 2014

REPRESENTATION

Solicitors for the Applicant:

Rita Thakur & Associates

Counsel for the First Respondent:

Mr Jackson

Solicitors for the First Respondent:

Kydon Segal Lawyers

Solicitors for the Second Respondent:

Patrick Lim & Associates

ORDERS

That the Husband is to pay two thirds of the Wife’s costs of the proceedings up to and including the date of the present Orders as agreed, or otherwise as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Moneta & Kimpton & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 960 of 2010

MS MONETA

Applicant

And

MR KIMPTON

First Respondent

MS DUFORT

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

On 28 February 2014, I published my reasons for judgment in this matter. The present Application results from that judgment and involves determining whether a costs order should be made, against whom, and if so on what basis.
Without going into the substantive reasons in detail, the litigation involved the Applicant Wife, the Respondent Husband and his mother as Second Respondent. As between the Husband and Wife, the issue was alteration of property interests under s.79 of the Family Law Act 1975. This involved, however, establishing what interest the Husband and the Wife had in a property they co-owned with the Husband’s mother, the Second Respondent. In the end result, a declaration was made that the Wife, Husband, and the Husband’s mother held a property at [C] on trust as to 50 per cent jointly to the Husband and the Wife, and 50 per cent to the Husband’s mother. Orders under s.79 were also made as between the Husband and the Wife. In addition, the Court made orders under s.118(1)(a) of the Child Support Assessment Act 1989.
The reasons for judgment comprise 89 paragraphs over 54 pages. In hindsight, it would be fair to characterise some of the findings made against the Respondent Husband…

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: [2014] FCCA 2622
Decision Date: 24 November 2014

CaseChat Overview and Summary

In *Moneta and Kimpton and Anor*, heard before Judge Altobelli, the dispute concerned the division of property between a husband and wife. The wife sought orders for the husband to pay a portion of her legal costs incurred during the proceedings.

The primary legal issue before the court was whether the husband should be ordered to pay the wife's costs, and if so, to what extent. This required the court to consider the conduct of the parties during the litigation and the overall merits of the case in determining the appropriate cost orders.

Judge Altobelli ordered that the husband was to pay two-thirds of the wife's costs of the proceedings up to and including the date of the orders. This outcome suggests the court found that the husband bore a significant responsibility for the costs incurred, likely due to his conduct or the progression of the case.

Orders

Orders of the court

That the Husband is to pay two thirds of the Wife’s costs of the proceedings up to and including the date of the present Orders as agreed, or otherwise as assessed.

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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