Naiman & Naiman - [2021] FedCFamC2F 638

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naiman & Naiman [2021] FedCFamC2F 638

File number(s): SYC 6945 of 2018

Judgment of: JUDGE B SMITH

Date of judgment: 2 December 2021

Catchwords: FAMILY LAW – Property – costs – subpoena on family trust controlled by wife’s parents by husband – objection by trust – objection entirely unsuccessful – a party properly advised should have known that they had no chance of success – indemnity costs awarded – Compliance costs payable by husband to family trust for compliance – Wife’s costs.

Legislation:
Evidence Act 1995 (Cth), s.140

Family Law Act 1975, Part.VIIIAB, ss.75(2), 117

Cases cited:
Clements and Clements [2019] FamCA 585
Colgate Palmolive v Cussons (1993) 118 ALR 248
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Kohan & Kohan [1992] FamCA 116; (1992) 16 Fam LR 245
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Markoska v Markoska (Costs) [2011] FamCA 833

Munday v Bowman (1997) 22 FamLR 321

Division: Division 2 Family Law

Number of paragraphs: 39

Date of hearing: 6 October 2020

Place: Sydney

Counsel for the Applicant: Ms Coulton

Solicitor for the Applicant: O’Sullivan Legal

Counsel for the Respondent: Mr Blackah

Solicitor for the Respondent: Atkinson Vinden

Solicitor for the Independent Children's Lawyer: Legal Aid NSW

Counsel for the Other: Ms Reid

Solicitor for the Other: Lander & Rogers
ORDERS

SYC 6945 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NAIMAN

Applicant

AND:
MS NAIMAN

Respondent

AND:
AND:

INDEPENDENT CHILDREN'S LAWYER

K LIMITED

Other

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

2 DECEMBER 2021

THE COURT ORDERS THAT:
1.Within 90 days K Ltd, acting as trustee of the K Trust, pay the Applicant the sum of $25,000.00 in respect of his costs.
2.Within 90 days the Applicant pay to K Ltd, acting as trustee of the K Trust, the sum of NZD$2,600.00 in respect of their compliance costs.
3.Within 90 days the Applicant pay to the Respondent the sum of $660.00 in respect of her costs.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Naiman & Naiman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975

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 Naiman & Naiman

Details

AGLC: Naiman & Naiman [2021] FedCFamC2F 638
Case: [2021] FedCFamC2F 638
Decision Date

CaseChat Overview and Summary

In the case of Naiman and Naiman, the husband, Mr Naiman, issued a subpoena on a family trust controlled by the wife's parents, K Limited acting as trustee of the K Trust. The Trust objected to the subpoena, arguing that the documents were irrelevant and that the subpoena was tantamount to fishing. The husband argued that the Trust was a financial resource of the wife and that the subpoena was relevant to the proceedings. The Court dismissed the Trust's objection and ordered the Trust to pay the husband's costs. The Court also ordered the husband to pay the Trust's compliance costs and the wife's costs.

The legal issues the Court was required to decide were whether the Trust was a financial resource of the wife, whether the subpoena was relevant, and whether the Trust's objection was reasonable. The Court found that the Trust was a financial resource of the wife and that the subpoena was relevant. The Court also found that the Trust's objection was unreasonable and that the Trust had no reasonable prospect of success. The Court therefore ordered the Trust to pay the husband's costs on an indemnity basis.

The Court's reasoning was based on the principle that costs should not follow the event as a matter of course, but that the Court may make an order for costs where the justice of the matter requires it. The Court noted that the Trust was represented by experienced family lawyers who should have known that the question of whether the Trust was a financial resource was going to be in issue. The Court also noted that the Trust had a superior financial position to the husband and that the Trust's objection was unreasonable. The Court therefore ordered the Trust to pay the husband's costs on an indemnity basis, taking into account the late service of the court book and the Trust's compliance costs.

The final orders of the Court were that the Trust pay the husband's costs in the amount of $25,000, the husband pay the Trust's compliance costs in the amount of NZD$2,600, and the husband pay the wife's costs in the amount of $660. The Court noted that the parties could set off the costs against each other if they wished.

Orders