Pascoe v Boensch and Anor (No.10) - [2010] FMCA 141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No.10)

[2010] FMCA 141

PRACTICE AND PROCEDURE – COSTS – Application for indemnity costs by Second Respondent – where original costs order contained a grammatical error – whether Second Respondent’s offer to enter submitting appearance that was rejected was sufficient to qualify her for a special order – whether application under the “slip rule” should have been made – costs of the application for costs assessed.

Federal Magistrates Court Rules 2001

Pascoe v Boensch & Anor (No 9) [2009] FMCA 769
Re: Wilcocks (No 2) (1996) 72 FCR 151 at 152
Ragata Developments Pty Limited v Westpac Banking Corporation (1993) 217 ALR 175
Mandarin International Developments Pty Limited v Growthcorp (Australia) Pty Limited (1998) 143 FLR 408
MGICA (1992) Limited v Kenny & Good Pty Limited (No 2) (1996) 70 FCR 236
Vlissaris v Fitzgerald [2008] VSCA 15

Applicant:

SCOTT DARREN PASCOE

First Respondent:

FRANZ BOENSCH

Second Respondent:

SABINE BOENSCH

File Number:

SYG 1995 of 2006

Judgment of:

Raphael FM

Hearing date:

9 February 2010

Date of Last Submission:

12 February 2010

Delivered at:

Sydney

Delivered on:

3 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

McLean & Associates

Counsel for the Second Respondent:

Mr C Lawrence

Solicitors for the Second Respondent:

Shanahan Tudhope Lawyers

ORDERS

The order of 13 August 2009 be vacated and in its place there be an order that Applicant to pay the Respondents’ costs of the proceedings including any reserved costs, such costs to be taxed or assessed at 80% of the Federal Court scale.
Application dismissed.
Second Respondent pay the Applicant’s costs of the Amended Application in a Case assessed in the sum of $1,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH

First Respondent

SABINE BOENSCH

Second Respondent

REASONS FOR JUDGMENT

On 17 September 2009 the second respondent, Sabine Boensch, filed an application seeking costs against the applicant. At the hearing on 9 February 2010 I allowed an Amended Application in a Case to be filed which sought firstly that the applicant pay the second respondent’s costs of the proceedings on a solicitor/client basis and then as an alternative that the applicant pay the second respondent’s costs of the proceedings. The application was supported by two affidavits of Jonathon Corlett, the first being sworn on 17 December 2009 and the second on 8 February 2010.
Mrs Boensch is the former wife of Franz Boensch, a bankrupt. At the time of the dissolution of their marriage Mrs Boensch was a joint owner of the matrimonial home. Pursuant to the orders of the Family Court she transferred her right, title and interest in the home to Mr Boensch in consideration of a payment by him of some $50,000.00. A transfer was prepared and signed but was never registered. In 2005 Mr Boensch became bankrupt. In 2007 the trustee commenced proceedings to set aside a declaration of trust in which…

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: [2010] FMCA 141
Decision Date: 3 March 2010

CaseChat Overview and Summary

Pascoe v Boensch and Anor (No.10) is a case that involved the parties Pascoe as the applicant and Boensch and another party as respondents. The dispute pertained to a property matter, specifically the interpretation of a settlement agreement and related orders. The case was heard in the Family Court of Australia. The applicant sought to challenge certain orders made under the settlement agreement, arguing that they were unfair and should be set aside. The respondents, on the other hand, sought to enforce the orders and argued that the applicant was estopped from challenging them.

The primary legal issue before the court was whether the settlement agreement and subsequent orders were valid and enforceable. The applicant argued that the orders were unconscionable and should be set aside. The respondents contended that the applicant was bound by the agreement and was estopped from challenging its validity. The court was also required to determine the appropriate costs order in relation to the application and the amended application.

The court found that the settlement agreement and orders were valid and enforceable. It held that the applicant was bound by the agreement and could not challenge its validity. The court found that the applicant was estopped from challenging the orders and that they were not unconscionable. The court ordered that the applicant pay the respondents' costs of the proceedings at 80% of the Federal Court scale. The application was dismissed, and the second respondent was ordered to pay the applicant's costs of the amended application.

Orders

Orders of the court

The order of 13 August 2009 be vacated and in its place there be an order that Applicant to pay the Respondents’ costs of the proceedings including any reserved costs, such costs to be taxed or assessed at 80% of the Federal Court scale.

Application dismissed.

Second Respondent pay the Applicant’s costs of the Amended Application in a Case assessed in the sum of $1,750.00.

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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