FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peterson & Davis (No 5) [2023] FedCFamC1F 587
File number: PAC 1208 of 2016 Judgment of: CAMPTON J Date of judgment: 14 July 2023 Catchwords: FAMILY LAW – COSTS – Where the de facto husband and his parents seek costs of the first instance proceedings, in circumstances where they were unsuccessful at first instance and then successful on appeal in a claim relating to the beneficial ownership of two real properties – Consideration of the factors at s 117(2A) of the Family Law Act 1975 (Cth) as are relevant – Where the conduct of the parties at first instance is a compelling factor weighing against the exercise of a costs discretion – Application dismissed. Legislation: Bankruptcy Act 1966 (Cth) s 58
Family Law Act 1975 (Cth) ss 90SM, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, r 12.13
Cases cited: Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Collins and Collins (1985) FLC 91-603; [1985] FamCA 15
Davis & Peterson [2023] FedCFamC1A 13
Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41
Luadaka v Luadaka (1998) FLC 92-830; [1998] FamCA 1520
Madden and Madden (1979) FLC 90-710; [1979] FamCA 72
Peterson & Davis (No 3) [2022] FedCFamC1F 650
The Cleaning Doctor NSW Pty Ltd v Fonseca [2023] NSWCA 110
Tuck and Tuck (1981) FLC 91-021; [1979] FamCA 33
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 9 June 2023 Place: Sydney The Applicant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Cook Solicitor for the Second Respondent: Hammond Nguyen Turnbull Counsel for the Third and Fourth Respondents: Mr Ng Solicitor for the Third and Fourth Respondents: McEvoy Legal ORDERS
PAC 1208 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PETERSON
Applicant
AND: MR DAVIS
First Respondent
MR CUSSON
Second Respondent
MR B DAVIS (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 JULY 2023
THE COURT NOTES:
A.For the purpose of these orders:
(a)Ms Peterson shall be referred to as “the applicant”;
(b)Mr Davis shall be referred to as “the respondent”;
(c)Mr Cusson shall be referred to as “the trustee”; and
(d)Mr B Davis and Ms Davis shall be referred to collectively as the “third and fourth respondents”.
THE COURT ORDERS THAT:
1.Within seven days of the date of these orders, the trustee shall do all such acts and things to cause the amount payable to the respondent from the proceeds of sale of the property at C Street, Suburb B, NSW (“the Suburb B proceeds”) pursuant to Order 6 made on 31 August 2022, to be deposited to an account as nominated in writing by the respondent.
2.For the purpose of implementation of Order 1, within three days of the date of these orders, the respondent shall advise the solicitors for the trustee…
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CaseChat Overview and Summary
The court found that the conduct of the parties at the first instance was a significant factor against awarding costs. Despite the de facto husband and his parents being successful on appeal, the court determined that their conduct during the initial proceedings was not such that it warranted the exercise of a costs discretion in their favour. The court further noted that the respondent had remained self-represented since his former solicitors filed a Notice of Ceasing to Act. The court concluded that there was insufficient evidence to support the claim for costs incurred by the respondent, and that any costs claimed for the respondent's own time in preparing the case were not recoverable under section 117 of the Act.
The court dismissed the application for costs, noting that the application was necessitated by the trustee’s failure to comply with the final orders. However, the court found that there was no evidence to ground a finding on the quantum of costs claimed. Consequently, the application for costs was refused. In addition, the court dismissed the respondent's application for costs of and incidental to his Application-Enforcement filed on 9 November 2022, as it was unclear what, if any, legal costs he had incurred in preparing and prosecuting the relief.
In conclusion, the court ordered that the trustee must deposit the amount payable to the respondent from the proceeds of the sale of the property at C Street, Suburb B, NSW, into an account nominated by the respondent. The court also dismissed several other applications filed by the parties, including the Application in a Proceeding filed by the trustee and the respondent, and the Response to the Application in a Proceeding filed by the applicant. The form of the order is subject to review and potential variation.
Orders
Orders of the court
PAC 1208 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PETERSON
Applicant
AND:
MR DAVIS
First Respondent
MR CUSSON
Second Respondent
MR B DAVIS (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 JULY 2023
THE COURT NOTES:
A. For the purpose of these orders:
(a) Ms Peterson shall be referred to as “the applicant”;
(b) Mr Davis shall be referred to as “the respondent”;
(c) Mr Cusson shall be referred to as “the trustee”; and
(d) Mr B Davis and Ms Davis shall be referred to collectively as the “third and fourth respondents”.
THE COURT ORDERS THAT:
1. Within seven days of the date of these orders, the trustee shall do all such acts and things to cause the amount payable to the respondent from the proceeds of sale of the property at C Street, Suburb B, NSW (“the Suburb B proceeds”) pursuant to Order 6 made on 31 August 2022, to be deposited to an account as nominated in writing by the respondent.
2. For the purpose of implementation of Order 1, within three days of the date of these orders, the respondent shall advise the solicitors for the trustee in writing as to the name of the nominated financial institution, the account name, BSB and account number into which the monies are to be deposited.
3. Save and except as provided for in these orders, the following applications are dismissed:
(a) The Application in a Proceeding filed by the trustee on 28 September 2022;
(b) The Application-Enforcement filed by the respondent on 9 November 2022;
(c) The Application in a Proceeding filed by the trustee on 28 December 2022;
(d) The Application in a Proceeding filed by the third and fourth respondents filed 31 March 2023;
(e) The Application in a Proceeding filed by the respondent on 26 May 2023; and
(f) The Response to the Application in a Proceeding filed by the applicant on 9 June 2023.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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