That the third named respondent L PTY LTD pay the wife’s costs of the summary dismissal proceedings in a sum to be agreed and in default of agreement, as assessed.
That all other applications by the parties for costs otherwise remain reserved to be determined by the trial judge.
I certify that it was appropriate to brief counsel including senior counsel for all parties.
IT IS NOTED that publication of this judgment under the pseudonym Simmons & Simmons is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT MELBOURNE
FILE NUMBER: MLF 1269 of 2005
MR SIMMONS
Applicant
And
MS SIMMONS
Respondent
And
R PTY LTD & L PTY LTD
Second and Third Named Respondents
REASONS FOR JUDGMENT
On 17 December 2008, I made the following order:
That any party seeking an order for costs file and serve any submissions relevant to the application for costs of the application to summarily dismiss the wife’s application no later than 16 January 2009” (emphasis mine).
In a submission on behalf of the husband, it is said that my order did not accurately reflect the order of Watt J made on 12 December 2008 just as his Honour was about to retire. Be that as it may, that was the order I made.
Watt J referred the substantive proceedings to me. His Honour had just delivered judgment on the application by a third party seeking summary dismissal. His Honour dismissed that application and the substantive proceedings are now awaiting final determination.
The substantive proceedings are between the husband and the wife but there are also joined R PTY LTD as the second respondent and L PTY LTD as the third respondent.
In relation to the summary dismissal application before Watt J, as best I can ascertain, the second…
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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AGLC
Mulvany v Lane [2009] FamCA 76
Case
[2009] FamCA 76
Decision Date
CaseChat Overview and Summary
In *Mulvany v Lane*, the wife sought orders for costs against the third respondent, L PTY LTD, following summary dismissal proceedings. The dispute concerned the wife's entitlement to costs arising from these proceedings. The matter came before Cronin J.
The primary legal issue before the court was whether L PTY LTD should be ordered to pay the wife's costs of the summary dismissal proceedings. The court was also required to determine the fate of other applications for costs made by the parties, and whether it was appropriate to certify the need for senior counsel.
Cronin J ordered that L PTY LTD pay the wife's costs of the summary dismissal proceedings, with the sum to be agreed or assessed. All other applications for costs were reserved for determination by the trial judge. His Honour also certified that it was appropriate for all parties to brief counsel, including senior counsel.
Orders
Orders of the court
1.
That the third named respondent L PTY LTD pay the wife’s costs of the summary dismissal proceedings in a sum to be agreed and in default of agreement, as assessed.
2.
That all other applications by the parties for costs otherwise remain reserved to be determined by the trial judge.
3.
I certify that it was appropriate to brief counsel including senior counsel for all parties.