Peterson & Davis (No 5)

Case [2023] FedCFamC1F 587


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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AGLC
Peterson & Davis (No 5) [2023] FedCFamC1F 587
Case
[2023] FedCFamC1F 587
Decision Date

CaseChat Overview and Summary

In the matter of Peterson & Davis (No 5), the parties involved were Ms Peterson, Mr Davis, Mr Cusson, and Mr and Ms B Davis. The dispute centred on the beneficial ownership of two properties, with the case culminating in an appeal where the initial findings were overturned. The legal issues before the court included whether the de facto husband and his parents were entitled to costs from the first instance proceedings, given their success on appeal. The court was required to consider the relevant factors under section 117(2A) of the Family Law Act 1975 (Cth) and assess the conduct of the parties during the initial proceedings.

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

Insofar as the respondent pressed an application for costs of and incidental to his Application‑Enforcement filed 9 November 2022, that application will also be refused. I accept that the application was necessitated by the trustee’s failure to comply with the final orders. However, both the application itself and the affidavit in support filed on the same day record that the documents were prepared by the applicant himself (rather than a solicitor). A Notice of Ceasing to Act was filed by the respondent’s former solicitors on 10 November 2022 (the day after his enforcement application was filed). The respondent has remained self-represented since that date. He appeared himself before me at the hearing on 30 June 2023. It is unclear what, if any, legal costs he has incurred in the preparation and prosecution of the relief. There is no evidence to ground a finding on this issue. To the extent that the quantum claimed is for costs of the respondent’s own time in preparing his case, those costs are not recoverable for the purpose of s 117 of the Act (see Cachia v Hanes (1994) 179 CLR 403). This aspect of his Application-Enforcement filed 9 November 2022 will be refused. Orders will be made dismissing the Application-Enforcement filed 9 November 2022.CONCLUSION For all of the above reasons, orders shall be made as set out at the forefront of this judgment.

Ratio Decidendi

Legal Principle Established

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