Peterson & Davis and Ors - [2020] FamCA 994

FAMILY COURT OF AUSTRALIA
Peterson & Davis and Ors (No. 2) [2020] FamCA 994

File number(s): PAC 1208 of 2016

Judgment of: FOSTER J

Date of judgment: 27 November 2020

Catchwords: FAMILY LAW – COSTS – Where application for costs arising from adjournment of final hearing – Where little had been done by or on behalf of the first respondent to prepare the matter for hearing – Order made that the first respondent pay the costs of the applicant and second respondent.

Legislation:
Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160

Collins and Collins (1985) FLC 91-603

Greedy and Greedy (1982) FLC 91-250

Hawkins & Roe (2012) 47 Fam LR 526

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Luadaka v Luadaka (1998) FLC 92-830

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Peterson & Davis and Ors [2020] FamCA 723

Number of paragraphs: 21

Date of last submission/s: 31 August 2020

Date of hearing: 10 and 11 August 2020

Place: Parramatta

Counsel for the Applicant: Mr George

Solicitor for the Applicant: Williamson & Learmonth Solicitors

Counsel for the First Respondent: The First Respondent appeared in person

Solicitor for the First Respondent: Ms Hitchen of Adams & Partners Lawyers

Counsel for the Second Respondent: Mr Marshall SC and Mr Eardley

Solicitor for the Second Respondent: Mercantile Legal Services

Counsel for the Third Respondent: Mr Allen

Solicitor for the Third Respondent: McEvoy Legal

Counsel for the Fourth Respondent: Mr Allen

Solicitor for the Fourth Respondent: McEvoy Legal

ORDERS

PAC 1208 of 2016

BETWEEN:
MS PETERSON

Applicant

AND:
MR DAVIS

First Respondent

MR CUSSON

Second Respondent

MR B DAVIS

Third Respondent

(and others named in the Schedule)

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

27 NOVEMBER 2020

THE COURT ORDERS THAT:
1.The first respondent Mr Davis pay the costs of the applicant and second respondent being costs thrown away by reason of the adjournment of the hearing of these proceedings on 11 August 2020 with the quantum of such costs to be as agreed between the parties within 14 days from this date or otherwise as assessed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:

The application for determination is an application in relation to costs arising from the adjournment of the final hearing 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 Peterson & Davis and Ors

Details

AGLC: Peterson & Davis and Ors [2020] FamCA 994
Case: [2020] FamCA 994
Decision Date: 27 November 2020

CaseChat Overview and Summary

In *Peterson & Davis*, Foster J of the Family Court of Australia considered an application for costs arising from the adjournment of a final hearing. The dispute concerned the quantum of costs to be paid by the first respondent, Mr Davis, to the applicant and the second respondent, following an adjournment on 11 August 2020.

The central legal issue before the Court was whether the first respondent should be ordered to pay the costs thrown away by reason of the adjournment, and if so, on what basis. This required the Court to consider the conduct of the parties in relation to the preparation for the hearing.

Foster J reasoned that little had been done by or on behalf of the first respondent to prepare the matter for hearing. Consequently, the Court ordered that the first respondent pay the costs of the applicant and second respondent thrown away by the adjournment. The quantum of these costs was to be agreed between the parties within 14 days, or otherwise assessed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The first respondent Mr Davis pay the costs of the applicant and second respondent being costs thrown away by reason of the adjournment of the hearing of these proceedings on 11 August 2020 with the quantum of such costs to be as agreed between the parties within 14 days from this date or otherwise as assessed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 1208 of 2016
Judgment of:	FOSTER J
Date of judgment:	27 November 2020
Catchwords:	FAMILY LAW – COSTS – Where application for costs arising from adjournment of final hearing – Where little had been done by or on behalf of the first respondent to prepare the matter for hearing – Order made that the first respondent pay the costs of the applicant and second respondent.
Legislation:	Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.18
Cases cited:	Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Collins and Collins (1985) FLC 91-603 Greedy and Greedy (1982) FLC 91-250 Hawkins & Roe (2012) 47 Fam LR 526 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Luadaka v Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Peterson & Davis and Ors [2020] FamCA 723
Number of paragraphs:	21
Date of last submission/s:	31 August 2020
Date of hearing:	10 and 11 August 2020
Place:	Parramatta
Counsel for the Applicant:	Mr George
Solicitor for the Applicant:	Williamson & Learmonth Solicitors
Counsel for the First Respondent:	The First Respondent appeared in person
Solicitor for the First Respondent:	Ms Hitchen of Adams & Partners Lawyers
Counsel for the Second Respondent:	Mr Marshall SC and Mr Eardley
Solicitor for the Second Respondent:	Mercantile Legal Services
Counsel for the Third Respondent:	Mr Allen
Solicitor for the Third Respondent:	McEvoy Legal
Counsel for the Fourth Respondent:	Mr Allen
Solicitor for the Fourth Respondent:	McEvoy Legal

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	27 NOVEMBER 2020