Moyland & Shearer (No 3) - [2024] FedCFamC2F 864

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyland & Shearer (No 3) [2024] FedCFamC2F 864

File number(s): CAC 1659 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 27 June 2024

Catchwords: FAMILY LAW – COSTS – multiple offers made by the Father during the course of the protracted litigation – Mother made two counter-offers – consideration of principles regarding costs especially where there are offers of settlement – the Father’s penultimate offer of settlement regarding costs was one-sixth his ultimate costs – Full Court authority that refers to rejection of offers where doing so is more than just unwise but actually “imprudent” – Father sought as his primary position indemnity costs against the Mother – indemnity costs Application refused but a limited costs Order in keeping with the “generous” costs offer made by the Father in November 2023 made – payment of costs by the Mother to be made in six months.

Legislation: Family Law Act 1975 (Cth) ss.117, 117(2), 117(2A)(e) and (f)

Cases cited:
AON Risk Services Ltd v Australian National University (2009) 239 CLR 175
Browne v Green (2002) 29 Fam LR 428
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303
Harris & Harris (1991) 15 Fam LR 26
JEL v DDF (2001) 28 Fam LR 119
Lad & Gittings (2014) 52 Fam LR 71
Penfold v Penfold (1980) 144 CLR 311
Ressel & Morath [2023] FedCFamC1A 145

Stephens v Stephens (2011) 44 Fam LR 117

Division: Division 2 Family Law

Number of paragraphs: 32

Date of last submission/s: 10 June 2024

Date of hearing: 12 June 2024

Place: Canberra

Counsel for the Applicant Ms R. Dart

Solicitor for the Applicant Robinson + McGuinness Family Law

Counsel for the Respondent Ms M Davis

Solicitor for the Respondent Foster Johnson Lawyers

ORDERS

CAC 1659 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MOYLAND

Applicant

AND:
MS SHEARER

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

27 JUNE 2024

THE COURT ORDERS THAT:
1.The Mother is to pay the Father’s costs of and incidental to the substantive proceedings, fixed in the sum of $40,000, within 6 months of the date of these Orders, being by 27 December 2024.
2.The Mother is to pay the Father’s costs of and incidental to the Costs Application, filed by the Father on 18 April 2024, fixed in the sum of $2000, within 6 months of the date of these Orders, being by 27 December 2024.
3.Order 2 of Orders made 12 June 2024 reserving the costs of the parties in relation to the Mother’s Adjournment Application be discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court…

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: [2024] FedCFamC2F 864
Decision Date: 27 June 2024

CaseChat Overview and Summary

The case of Moyland & Shearer (No 3) involved a protracted legal dispute between Mr. Moyland and Ms. Shearer. The matter was heard in Division 2 of the Federal Circuit and Family Court of Australia, with the presiding judge being Judge W. J. Neville. The primary focus of the case was the determination of costs associated with the litigation, particularly considering the multiple offers of settlement made by Mr. Moyland and the counter-offers made by Ms. Shearer. The case hinged on the principles governing the awarding of costs, particularly in light of the offers of settlement that were made and rejected during the course of the litigation.

The legal issues before the court included the assessment of costs in light of the rejected offers of settlement and the principles governing such assessments. The court had to determine whether the rejection of settlement offers by Ms. Shearer was imprudent, and if so, what the implications of this were for the awarding of costs. Mr. Moyland sought indemnity costs against Ms. Shearer, arguing that her rejection of his offers was not only imprudent but also warranted a higher award of costs. The court had to weigh these arguments against the principles of fairness and the practicalities of the litigation.

In its decision, the court acknowledged the Full Court authority that emphasized the imprudence of rejecting offers of settlement under certain circumstances. While the court refused Mr. Moyland’s application for indemnity costs, it found that a limited costs order was appropriate. The court noted that Mr. Moyland's penultimate offer of settlement was substantially lower than his ultimate costs, indicating that his generous offer in November 2023 should be taken into account. The court therefore ordered that Ms. Shearer pay Mr. Moyland’s costs in the sum of $40,000 for the substantive proceedings and $2,000 for the costs application, with payment to be made within six months. The court also discharged an earlier order reserving the costs of the parties in relation to Ms. Shearer’s Adjournment Application.

Orders

Orders of the court

CAC 1659 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MOYLAND

Applicant

AND:

MS SHEARER

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

27 JUNE 2024

THE COURT ORDERS THAT:

1. The Mother is to pay the Father’s costs of and incidental to the substantive proceedings, fixed in the sum of $40,000, within 6 months of the date of these Orders, being by 27 December 2024.

2. The Mother is to pay the Father’s costs of and incidental to the Costs Application, filed by the Father on 18 April 2024, fixed in the sum of $2000, within 6 months of the date of these Orders, being by 27 December 2024.

3. Order 2 of Orders made 12 June 2024 reserving the costs of the parties in relation to the Mother’s Adjournment Application be discharged.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CAC 1659 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	27 June 2024
Catchwords:	FAMILY LAW – COSTS – multiple offers made by the Father during the course of the protracted litigation – Mother made two counter-offers – consideration of principles regarding costs especially where there are offers of settlement – the Father’s penultimate offer of settlement regarding costs was one-sixth his ultimate costs – Full Court authority that refers to rejection of offers where doing so is more than just unwise but actually “imprudent” – Father sought as his primary position indemnity costs against the Mother – indemnity costs Application refused but a limited costs Order in keeping with the “generous” costs offer made by the Father in November 2023 made – payment of costs by the Mother to be made in six months.
Legislation:	Family Law Act 1975 (Cth) ss.117, 117(2), 117(2A)(e) and (f)
Cases cited:	AON Risk Services Ltd v Australian National University (2009) 239 CLR 175 Browne v Green (2002) 29 Fam LR 428 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Harris & Harris (1991) 15 Fam LR 26 JEL v DDF (2001) 28 Fam LR 119 Lad & Gittings (2014) 52 Fam LR 71 Penfold v Penfold (1980) 144 CLR 311 Ressel & Morath [2023] FedCFamC1A 145 Stephens v Stephens (2011) 44 Fam LR 117
Division:	Division 2 Family Law
Number of paragraphs:	32
Date of last submission/s:	10 June 2024
Date of hearing:	12 June 2024
Place:	Canberra
Counsel for the Applicant	Ms R. Dart
Solicitor for the Applicant	Robinson + McGuinness Family Law
Counsel for the Respondent	Ms M Davis
Solicitor for the Respondent	Foster Johnson Lawyers

CAC 1659 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MOYLAND Applicant
AND:	MS SHEARER Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	27 JUNE 2024