Catchwords: FAMILY LAW – Costs – de facto relationship – application for costs stemming from proceedings where a section 90RD declaration was sought – party has been wholly unsuccessful as regards the section 90RD declaration – absence of offers of settlement – party has not demonstrated an appropriately, responsible, outcome focused approach towards the address of the dispute – failure to engage in meaningful negotiation – failure to observe or act upon the objects of the Federal Circuit Court Rules being “the just, efficient and economical resolution of proceedings” – limit and discount of costs on basis of applicant’s litigious conduct and refusal to negotiate in circumstances where the parties jointly own property and their dispute must still be resolved.
Legislation:
Family Law Act 1975, ss.4AA, 13C, 43, 60I, 90RD, 90SM(1), 117
[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
AGLC
Peake & Benedict (Costs) [2014] FCCA 2723
Case
[2014] FCCA 2723
Decision Date
CaseChat Overview and Summary
In the matter of *Peake & Benedict (Costs)*, Judge Harman of the Supreme Court of New South Wales was required to determine the quantum and conditions of costs payable by Ms Benedict to Mr Peake. The dispute concerned the resolution of a property dispute between the parties, who were joint registered proprietors of the [E] property.
The primary legal issues before the Court were to fix the amount of costs to be paid by Ms Benedict to Mr Peake, and to establish the conditions and timing of that payment. Further, the Court was required to determine whether these costs should be secured by a charge over Ms Benedict's interest in the jointly owned property. The Court also needed to address the disposition of outstanding applications and the removal of related matters from the hearing list.
Judge Harman ordered that Ms Benedict pay Mr Peake's costs fixed at $25,000.00. These costs were to be payable within 28 days of the earliest of three events: the parties entering into a binding agreement resolving their dispute under the *Conveyancing Act 1919* (NSW) or the *Real Property Act 1900* (NSW), the making of court orders resolving the dispute, or the sale of the [E] property. The order stipulated that no interest would accrue on these costs if paid in compliance with this condition. Furthermore, the costs were made a charge upon Ms Benedict’s interest in the [E] property until paid in full. All extant applications and responses were dismissed, and all issues were removed from the list of cases awaiting hearing.
Orders
Orders of the court
1.
Ms Benedict shall pay the costs of Mr Peake fixed in the sum of $25,000.00.
2.
The above costs shall be payable by Ms Benedict to Mr Peake within 28 days of the parties entering into a binding agreement as to resolution of their dispute under the Conveyancing Act 1919 (NSW) or the Real Property Act 1900 (NSW), the making of orders by a Court resolving said dispute or the sale of the [E] property, whichever first occurs and provided that payment is made in compliance with this order interest shall not accrue.
3.
The above costs shall be, until paid in full (together with any interest as may accrue thereupon by operation of the above order) a charge upon Ms Benedict’s interest in the [E] property of which she and Mr Peake are joint registered proprietors.
4.
All extant applications and responses are dismissed.
5.
All issues are removed from the list of cases awaiting hearing.