Peck and Peck (No.3) - [2017] FCCA 2357

FEDERAL CIRCUIT COURT OF AUSTRALIA

PECK & PECK (No.3)

[2017] FCCA 2357

Catchwords:
FAMILY LAW – Application by the husband for costs following property trial – consideration of offers made and rejected – conduct of husband in running his case on contribution issues to the assets and in particular an (omitted) fund which was out of line with all Full Court authority and High Court authority – Court’s time wasted in doing so and the subsequent unnecessary costs incurred in pointing out erroneous submissions on the law and the facts – Husband’s application for costs dismissed.

Legislation:

Family Law Act 1975, s.117(2)

Federal Circuit Court Rules2001
Federal Proceedings (Costs) Act 1981

Cases cited:

Collins and Collins (1985) FLC 91-603
Penfold v Penfold (1980) FLC 90-800
Mallet and Mallet (1984) FLC 91-587
Fields and Smith [2015] FamCAFC 57
Johnston & Johnston [2004] FamCA 556
Harris & Harris (1987) FLC 91-822

Applicant:

MS PECK

Respondent:

MR PECK

File Number:

PAC 4459 of 2014

Judgment of:

Judge Willis

Hearing date:

27 July 2016

Date of Last Submission:

24 July 2017

Delivered at:

Cairns

Delivered on:

30 October 2017

REPRESENTATION

Solicitors for the Applicant:

JT Legal Practice

Solicitors for the Respondent:

Thomas Henry Bray Lawyer

ORDERS

That the Husband’s application for costs is dismissed.
All outstanding applications are removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Peck & Peck (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

PAC 4459 of 2014

MS PECK

Applicant

And

MR PECK

Respondent

REASONS FOR JUDGMENT

This is an application for costs by the husband Mr Peck (“the husband”). These proceedings commenced with an application for the finalisation of property matters between the parties filed by the wife Ms Peck (“the wife”) on 4 June 2015.
The property application was heard on 27 July 2016 in Parramatta. Written submissions were filed on 10 and 17 October 2016 after I ordered that the parties obtain a single expert report in relation to the value of the husband’s (employer omitted) superannuation. My reasons for judgment were delivered on 3 July 2017. On that date orders were made for any application of legal costs to be filed within 28 days of the date of this order and any submissions in response were to be filed within 28 days of being served. I also gave a separate decision dismissing an application by both parties for a costs certificate under the Federal Proceedings (Costs) Act 1981.
An application for costs of the proceedings has been filed by the husband on 24 July 2017 seeking a costs order in the sum of $10,220.00 in accordance with the Federal Circuit Court Rules2001. The wife was due to file submissions in response by no later than 21 August 2017. The wife has failed to file any submissions in response or contact the Court at all.
On 1 September 2017 an email…

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 Peck and Peck (No.3)

Details

AGLC: Peck and Peck (No.3) [2017] FCCA 2357
Case: [2017] FCCA 2357
Decision Date: 30 October 2017

CaseChat Overview and Summary

In the matter of *Peck and Peck (No.3)*, Judge Willis of the Federal Circuit and Family Court of Australia considered an application for costs by the Husband. The specific nature of the underlying dispute between the parties, beyond the context of a costs application, is not detailed in the provided text.

The central legal issue before the court was whether the Husband was entitled to an order for costs. This required the court to assess the circumstances surrounding the proceedings and determine if an award of costs was warranted in favour of the Husband.

Judge Willis dismissed the Husband's application for costs. The court also ordered that all outstanding applications be removed from the pending cases list, effectively bringing an end to the matters before the court.

Orders

Orders of the court

That the Husband’s application for costs is dismissed.

All outstanding applications are removed from the pending cases list.

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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