Panwar and Panwar & Anor (No 2)

Case [2020] FamCA 724

FAMILY COURT OF AUSTRALIA

PANWAR & PANWAR AND ANOR (NO. 2) [2020] FamCA 724
FAMILY LAW – COSTS – applicant who successfully obtained leave under s 44(3) to bring a s 79 proceeding out of time seeking costs – applicant arguing she was wholly successful in the proceeding – consideration of costs questions – applicant not wholly successful in s 79 application – only leave to bring it has been granted – whether trustee was undertaking the legitimate discharge of his duty by opposing leave application – held, yes – costs ordered under s 117(1) and not otherwise.
Family Law Act 1975 (Cth) ss 44(3), 44(4), 75, 79, 117
Family Law Rules 2004 (Cth) r 19.18(1)
Statute of Gloucester 1278, 6 Edw 1
Andrews v Barnes (1888) 39 Ch D 133
Arkin & Blasberg [2019] FamCA 476
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Black v Black (2008) 38 Fam LR 503
Brott v Grey [2000] FCA 1836
Bunbury v Fuller [1853] 156 ER 47
Byrns v Davie [1991] 2 VR 568
Cachia & Hanes (1994) 179 CLR 403
Chen & Chen and Anor [2020] FamCA 602
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425
Corporation of Burford v Lenthall [1743] 26 ER 731
Cummings v Lewis & Ors (1993) 41 FCR 559
D.M.W. v C.G.W. (1982) 151 CLR 491
Dunworth & Falletti [2020] FamCA 178
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Garnet v Bradley [1878] 3 AC 944
Goodridge & Beadle (No 2) [2019] FamCA 786
Grassby v The Queen (1989) 168 CLR 1
Greedy & Greedy (1982) 8 Fam LR 669
Guild & Stasiuk (No 2) [2020] FamCA 564
Harlen & Hellyar (No 2) [2020] FamCA 413
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
Hearl & Digby [2020] FamCA 474
Holder & Holder [2020] FamCA 347
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
In the Marriage of Hogan (1986) 10 Fam LR 681
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
In the Marriage of Oriolo & Oriolo (1985) 10 Fam LR 665
In the Marriage of Tuck (1979) 7 Fam LR 492
In the Marriage of Waugh (1999) 27 Fam LR 63
In the Marriage of Wilson (1989) 13 Fam LR 205
In the Marriage of Yunghanns (1999) 24 Fam LR 400
Jones v Coxeter [1742] 26 ER 642
Kain & Kain and Ors [2020] FamCA 650
Karjala & Gallard [2020] FamCA 110
Kennon v Spry (2008) 238 CLR 366
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178
Latoudis v Casey (1990) 170 CLR 534
Mullen v De Bry (2006) 36 Fam LR 454
Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046
Norton & Locke (2013) 50 Fam LR 517
Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq)

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Panwar and Panwar & Anor (No 2) [2020] FamCA 724
Case
[2020] FamCA 724
Decision Date

CaseChat Overview and Summary

In the matter of *Panwar and Panwar & Anor (No 2)*, Justice Wilson of the Federal Circuit and Family Court of Australia considered an application by one of the parties for leave to commence a property settlement proceeding under section 79 of the *Family Law Act 1975* (Cth). The application sought to initiate a substantive property adjustment claim, which requires judicial permission in certain circumstances.

The central legal issue before the Court was whether the applicant had satisfied the threshold requirements for obtaining leave to commence the property settlement proceedings. This involved an assessment of the applicant's entitlement to bring such a claim, particularly in light of any relevant statutory provisions or established legal principles governing the commencement of these types of proceedings.

Justice Wilson dismissed the applicant's application for leave. The Court ordered that each party bear their own costs in relation to the application for leave to commence the section 79 proceeding. Furthermore, the Court reserved the determination of costs for the applicant's separate application for costs, indicating that this would be decided by the trial judge presiding over the substantive proceedings.

Orders

Orders of the court

1.

Paragraph 1 of the applicant’s application in a case dated 23 July 2020 is dismissed.

2.

All parties’ costs of and incidental to the applicant’s application for leave under s 44(3) of the Family Law Act to commence a proceeding under s 79 of the Family Law Act are his or her own costs under s 117(1) of the Family Law Act.

3.

Paragraph 2 of the applicant’s application in a case dated 23 July 2020 is dismissed.

4.

All parties’ costs of and incidental to the applicant’s application for costs are reserved to be determined by the learned trial judge.

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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