Murray & Murray (No 6) - [2020] FamCA 223

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO. 6)

[2020] FamCA 223

FAMILY LAW – COSTS – Where there were no special or unusual features as would attract an order for indemnity costs – Where the husband’s asserted impecuniosity is not a bar to the making of a costs order – Where, taking into account all considerations pursuant to s 117(2A) Family Law Act, it is just to make a partial party/party costs order– Where an order is made for the repayment by the husband of half valuation fees.

Family Law Act 1975 (Cth) s117

Bhatt & Acharya (Costs) [2017] FamCAFC 71
Murray & Murray (No. 3) [2019] FamCA 846
Lenova & Lenova (Costs) [2011] FamCAFC 141
Muldoon & Carlyle (2012) FLC 93-513
Munday v Bowman (1997) FLC 92-784

APPLICANT:

Ms Murray

RESPONDENT:

Mr Murray

FILE NUMBER:

SYC

5665

2014

DATE DELIVERED:

1 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

25 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The husband pay to the wife at the same time as the payment referred to in order 2, one half of payments made directly to valuers by the wife, one half being in the sum of $32,064.
The husband pay 70% of the wife’s legal costs and other disbursements, of and incidental to these proceedings on a party/party basis as agreed or if not agreed, as assessed, within 28 days of such agreement or assessment.

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 Murray & Murray 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 SYDNEY

FILE NUMBER: SYC 5665 of 2014

Ms Murray

Applicant

And

Jonathan Murray

Respondent

REASONS FOR JUDGMENT

Introduction

The wife filed an Application in a Case on 16 December 2019 in which she seeks an order that the husband pay costs of the proceedings on an indemnity basis which, in her supporting affidavit filed 16 December 2019, she quantifies in the sum of $383,553.90.
The wife sought and obtained leave to amend her application to seek, in the alternative, an order that the husband pay the wife’s costs of and incidental to these proceedings on a party/party basis as agreed or if not agreed, as assessed, within 28 days.
The wife’s application is in effect to obtain an order for costs not only for the substantive property proceedings but for all applications including all interlocutory applications. Ultimately the issues of child support…

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 Murray & Murray (No 6)

Details

AGLC: Murray & Murray (No 6) [2020] FamCAFC 223
Case: [2020] FamCA 223
Decision Date: 1 April 2020

CaseChat Overview and Summary

In *Murray & Murray (No 6)*, the Family Court of Australia considered an application for costs following proceedings between a husband and wife. The dispute centred on the wife's claim for a contribution towards valuation fees and a partial party/party costs order.

The primary legal issues before the court were whether the husband's asserted impecuniosity presented a barrier to a costs order, and what order for costs, if any, would be just and equitable under section 117(2A) of the *Family Law Act 1975* (Cth). The court also had to determine the appropriate proportion of the wife's legal costs and disbursements to be paid by the husband, and the extent of the husband's contribution to the valuation fees.

Watts J reasoned that the husband's financial circumstances, while relevant, did not preclude a costs order. Applying the principles of section 117(2A) of the *Family Law Act*, which requires consideration of all relevant factors including the parties' financial circumstances, the court found it just to make a partial party/party costs order. The court determined that the husband should pay 70% of the wife's legal costs and disbursements.

Consequently, the court ordered the husband to pay one half of the valuation fees directly to the wife, amounting to $32,064, at the same time as the payment of costs. The husband was also ordered to pay 70% of the wife's legal costs and other disbursements on a party/party basis, to be agreed or assessed, within 28 days of such agreement or assessment.

Orders

Orders of the court

The husband pay to the wife at the same time as the payment referred to in order 2, one half of payments made directly to valuers by the wife, one half being in the sum of $32,064.

The husband pay 70% of the wife’s legal costs and other disbursements, of and incidental to these proceedings on a party/party basis as agreed or if not agreed, as assessed, within 28 days of such agreement or assessment.

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

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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