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Morse v Morse (No 2)

Morse v Morse (No 2)

Case [2003] TASSC 145 22 December 2003

Costs

Appeal

Family Law

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[2003] TASSC 145

CITATION: Morse v Morse; Morse v Morse (No 2) [2003] TASSC 145

PARTIES: MORSE, Gregory Peter
v

MORSE, Colin Walter
MORSE, David Neil
v
MORSE, Colin Walter

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M8/1999

M10/1999

DELIVERED ON:  22 December 2003
DELIVERED AT:  Hobart
HEARING DATES:  9 December 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Conduct of parties.
Testators Family Maintenance Act 1912 (Tas).
Aust Dig Procedure [575 – 585]

REPRESENTATION:

Counsel:
     Applicant (Gregory Peter Morse):     J L Dewar
     Applicant (David Neil Morse):            J L Dewar
     Respondent:  K E Read
Solicitors:
     Applicant (Gregory Peter Morse):     Doolan & Brothers
     Applicant (David Neil Morse):            Crisp Hudson & Mann as agents for Doolan & Brothers
     Respondent:  FitzGerald & Brown

Judgment Number: [2003] TASSC 145
Number of Paragraphs: 9

Serial No 145/2003
File Nos M8/1999
M10/1999

PETER GREGORY MORSE v COLIN WALTER MORSE
DAVID NEIL MORSE v COLIN WALTER MORSE (NO 2)

REASONS FOR JUDGMENT SLICER J

22 December 2003

The parties seek differing orders as to costs consequent upon the decision in these matters (Morse v Morse; Morse v Morse [2003] TASSC 103). The respondent seeks an order that the unsuccessful applicants in each cause pay his costs of resisting the application and each applicant seeks orders that the estate bear the costs of their respective claims.

It is not necessary to traverse the basis or reasons giving rise to the applications brought pursuant to the Testators Family Maintenance Act 1912 ("the Act"). The claims were made by adult sons against the relatively modest estate of their father. The evidence given on the hearing disclosed a long history of family discord giving rise to a sense of grievance held by each applicant. Central to the grievances was the father's use of the land and his refusal to allow its development. Each applicant had, at some stage, returned to the land, prepared to help their father develop and manage it in an economically productive manner. Each had been rebuffed and discord extended to other members of the family with an aftermath of hostility and bitterness. Each applicant resented the bequest to the remaining adult son, regarding it as unfair and a rejection of their worth as sons. The daughters were not so affected.

The Act, s3(1), relevantly provides:

"and may make such other order in the matter, including an order as to costs, as the Court or Judge thinks fit."

The discretion afforded by statute is wide, but not unfettered (Singer v Berghouse (1994) 181 CLR 201; Fox v Burvill (1955) 92 CLR 334; Dehnert v Perpetual Trustees (1954) 91 CLR 177). Relevant matters governing the exercise of discretion include merits and reasonableness of claim (Re Bodman [1972] Qd R 281, conduct in the proceedings (Vasiljev v Public Trustee [1974] 2 NSWLR 497) and the size of the estate (Re Klease [1972] QWN 44). In some circumstances…

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.

Continue reading Morse v Morse (No 2)

Details

AGLC: Morse v Morse (No 2) [2003] TASSC 145
Case: [2003] TASSC 145
Decision Date: 22 December 2003

CaseChat Overview and Summary

In the case of Morse v Morse, the appellant sought to appeal the decision of the Family Court of Australia, which had ordered the parties to pay their own costs. The parties were husband and wife, and the case concerned a property settlement following their divorce. The trial judge had found that neither party had acted unreasonably or wastefully in the conduct of the proceedings, but the husband's conduct had been vexatious and oppressive. The husband appealed on the basis that the trial judge had not properly considered the general rule that costs should follow the event.

The court was required to determine whether the trial judge had properly exercised his discretion in ordering the parties to pay their own costs, and whether the husband's conduct had been such that it warranted a departure from the general rule. The court noted that the trial judge had considered the relevant principles and had made findings of fact that supported his conclusion that neither party had acted unreasonably or wastefully. However, the court found that the trial judge had not adequately considered the husband's conduct, which had been vexatious and oppressive. The court held that the trial judge's failure to adequately consider the husband's conduct was a significant error of law, which required the appeal to be allowed.

The court found that the husband's conduct had been vexatious and oppressive, and that this warranted a departure from the general rule that costs should follow the event. The court held that the husband should be ordered to pay the wife's costs of the appeal, and that the wife should be awarded costs of the proceeding in the trial court on an indemnity basis. The court noted that the husband's conduct had caused significant delay and expense, and that this warranted an award of indemnity costs. The court held that the wife was entitled to an order for costs on an indemnity basis, and that this should be in addition to any costs that she had already incurred. The court dismissed the appeal and ordered the husband to pay the wife's costs of the appeal and of the proceeding in the trial court on an indemnity basis.

Orders