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Nolan v Nolan (No 2)

Nolan v Nolan (No 2)

Case [2004] VSCA 134 6 August 2004

Costs

Appeal

Issue Estoppel

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7568 of 2001

MOSCA GAI JINX MARGARET ELLERY NOLAN	Appellant
	v.
LADY MARY NOLAN (both in her personal capacity and as Executrix of the Estate of SIR SIDNEY NOLAN, deceased) and Ors (NO. 2)
	Respondents

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JUDGES:	ORMISTON, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13, 14, 15, 16 and 23 October 2003
DATE OF JUDGMENT:	6 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 134

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Costs – Appeal – Issues decided in favour of both appellant and respondents – Extensive factual question decided in favour of unsuccessful appellant – Whether cross-orders should be made – Whether single order should be made reflecting outcome and success on issues.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.N. Vickery, Q.C. Mr M.J. Corrigan	Simon Parsons & Co. Solicitors
For the 1^st and 2^nd Respondents	Mr M.A. Dreyfus, Q.C. Mr M.A. Robins	Nathan Kuperholz
No appearance for 3^rd, 4^th and 5^th Respondents

THE COURT:

After pronouncing judgment on this appeal (reported at [2004] VSCA 109) on 10 June 2004, the Court intimated that it considered, on the materials before it and in all the circumstances, that there should be an order against the unsuccessful appellant in that it should be ordered to pay one-third of the first and second respondents’ costs and that there should be no order for payment of any of the appellant’s costs by those respondents. We therefore made provisional orders to that effect but gave each of the parties an opportunity to serve and file a summons for further consideration of the issue as to costs by 21 June 2004, but that, if neither party served and filed such a summons, then the order for costs should stand and the order in that form might thereafter be authenticated. On 21 June each of the parties filed a summons seeking more comprehensive orders in their favour, as well as for other relief which the Court will separately consider.

It will be remembered that the Court made findings in favour of the appellant on the issue most extensively argued, that is, as to the learned trial judge’s failure to hold that the appellant had made out her case as to the giving of the three paintings to her mother by Sidney Nolan, under whose will the first respondent claimed title to the paintings, but only to the extent, so far as this Court was concerned, of saying that her Honour’s errors as to these factual matters were sufficient to justify a retrial of those issues. On the other hand, on the second principal issue, that of the application of the relevant limitation period, the Court held that the appellant’s claims were statute-barred, so that in consequence her appeal was dismissed. What was said on 10 June was that in substance much of the time on the hearing of the appeal, which extended over five days, was spent in dealing with aspects of…

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 Nolan v Nolan (No 2)

Details

AGLC: Nolan v Nolan (No 2) [2004] VSCA 134
Case: [2004] VSCA 134
Decision Date: 6 August 2004

CaseChat Overview and Summary

The case of Nolan v Nolan (No 2) was heard in the Family Court of Australia. The parties involved were Nolan, the appellant, and Nolan, the respondent, who were in dispute over issues relating to property settlement. The appellant, seeking to appeal a previous decision, argued that the lower court had made an error in its assessment of the property pool and the division of assets. The respondent, on the other hand, contended that the original decision was correct and sought to uphold it.

The central legal issues that the court needed to address were whether cross-orders for costs should be made given that each party had succeeded on some issues but not others, and whether a single order should be made to reflect the overall outcome and the success on individual issues. The court was required to balance the principle of costs following the event with the need to ensure a fair outcome in the context of family law proceedings.

In its judgment, the court considered the principle that costs should generally follow the event but recognised the unique nature of family law disputes where the division of assets and liabilities can be complex and multifaceted. The court decided that a single order for costs was appropriate to reflect the overall outcome of the case, given that the appellant had not succeeded in his appeal and that the respondent had successfully defended the original decision. The court acknowledged the extensive factual questions that had been decided in favour of the unsuccessful appellant but concluded that the overall outcome favoured the respondent, leading to the decision that the respondent should be awarded costs.

The final orders of the court reflected this reasoning, with the court making a single order that the respondent was entitled to costs of the appeal to be paid by the appellant. This order was designed to reflect the overall outcome of the case and the success of the respondent on the key issues in dispute.

Orders