Munayallan & Ors and I Pty Ltd & Anor - [2019] FamCA 765

FAMILY COURT OF AUSTRALIA

MUNAYALLAN AND ORS & I PTY LTD AND ANOR

[2019] FamCA 765

FAMILY LAW – COSTS – Circumstances justifying order – Where the wife and third party seek costs arising out of an unsuccessful application by the company – Where the court found that the company was the alter ego of the husband – Where the company was seeking effectively the same relief that it was pursuing in a civil claim in the Supreme Court – Where the court found that the application was an abuse of process – Orders.

Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules2004 (Cth) rr 19.08(1), 19.08(3), 19.18(1), 19.18(3)

Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage (2013) FLC 93-544
Re Wilcox; Ex-parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
Sanderson v Blyth Theatre Company (1903) 2 KB 533
Simmons v Rockdale City Council (No 2) (2014) NSWSC 1275

1st APPLICANT:

Ms Munayallan

2nd APPLICANT:

Mr Phong and Ms Phong

1st RESPONDENT:

I Pty Ltd

2nd RESPONDENT:

Mr Scott

FILE NUMBER:

SYC

2010

DATE DELIVERED:

23 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 August 2019

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

No appearance

SOLICITOR FOR THE 1ST APPLICANT:

No appearance

COUNSEL FOR THE 2ND APPLICANT:

No appearance

SOLICITOR FOR THE 2ND APPLICANT:

No appearance

COUNSEL FOR THE 1ST RESPONDENT:

No appearance

SOLICITOR FOR THE 1ST RESPONDENT:

No appearance

COUNSEL FOR THE 2ND RESPONDENT:

No appearance

SOLICITOR FOR THE 2ND RESPONDENT:

No appearance

Orders

That I Pty Ltd and Mr Scott be jointly and severally liable for the costs of Ms Munayallan (“the wife”) and Mr Phong and Ms Phong as follows:-
(a)The sum of FOUR THOUSAND EIGHT HUNDRED DOLLARS ($4,800) to be paid to the wife by 4.00 pm on 18 December 2019;
(b)Such sum as may be agreed or in default of agreement as may be determined on a taxation of the costs of Mr and Ms Phong calculated on an indemnity costs basis within sixty (60) days of the taxation determination.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Munayallan & Scott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SYC 59 of 2010

Ms Munayallan

First Applicant

And

Mr Phong and Ms Phong

Second Applicant

I Pty Ltd

First Respondent

And

Mr Scott
Second Respondent

REASONS FOR JUDGMENT

Introduction

On 18 June 2019 orders were made dismissing an…

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: [2019] FamCA 765
Decision Date: 23 October 2019

CaseChat Overview and Summary

The proceeding before Berman J concerned a dispute involving Ms Munayallan (the wife), Mr Phong and Ms Phong (the respondents), and I Pty Ltd and Mr Scott (the applicants). The precise nature of the underlying dispute is not detailed in the provided text, but the outcome relates to the allocation of costs.

The central legal issue before the court was the determination of liability for the costs incurred by the respondents in the proceeding. Specifically, the court was required to decide which parties were responsible for these costs and on what basis those costs should be assessed.

Berman J ordered that I Pty Ltd and Mr Scott be jointly and severally liable for the costs of Ms Munayallan and Mr and Ms Phong. The order stipulated a specific sum of $4,800 to be paid to the wife by a set date, and further directed that the costs of Mr and Ms Phong, to be agreed or taxed on an indemnity basis, were to be paid within sixty days of taxation determination.

Orders

Orders of the court

That I Pty Ltd and Mr Scott be jointly and severally liable for the costs of Ms Munayallan (“the wife”) and Mr Phong and Ms Phong as follows:-

(a) The sum of FOUR THOUSAND EIGHT HUNDRED DOLLARS ($4,800) to be paid to the wife by 4.00 pm on 18 December 2019;

(b) Such sum as may be agreed or in default of agreement as may be determined on a taxation of the costs of Mr and Ms Phong calculated on an indemnity costs basis within sixty (60) days of the taxation determination.

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

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

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