Preiss & Preiss (No 4) - [2018] FamCA 1050

FAMILY COURT OF AUSTRALIA

PREISS & PREISS (NO. 4)

[2018] FamCA 1050

FAMILY LAW – COSTS – where the husband indicates by substantive application that he intends to bring an application under section 79A of the Family Law Act 1975 (Cth) to set aside property orders and the wife brings an interlocutory application for summary dismissal – where the husband seeks an adjournment of the summary dismissal application which is refused but he was given an opportunity to file written submissions in defence of his position – where the husband fails to file written submissions and the judgment dismissing his application for substantive relief is made – costs order made – where the wife seeks indemnity costs – where the circumstances do not justify a departure from the usual rule.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Preiss & Preiss (No. 3) [2018] FamCA 945

APPLICANT:

Ms Preiss

RESPONDENT:

Mr Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

11 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

SOLICITOR FOR THE RESPONDENT:

Go To Court Law

Orders

The husband pay the wife’s costs associated with the application for summary dismissal as and from 5 October 2018 by agreement, and in default of agreement, as assessed.
That the respective applications by way of written submission filed on 30 November and 7 December 2018 are otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Preiss & Preiss (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10148 of 2014

Ms Preiss

Applicant

And

Mr Preiss

Respondent

REASONS FOR JUDGMENT

By written submission filed 30 November 2018, Ms Preiss (“the wife”) seeks an order for costs against Mr Preiss (“the husband”) as a result of both the orders made on 20 November 2018[1] and the husband’s decision not to proceed with an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”).
[1] [2018] FamCA 945
The husband opposes any order for costs being made, but in the event that such an order is made, it is submitted that it should be on a party and party basis from 5 October 2018; being the day upon which the husband was to file his amended application.
It is trite to say that in proceedings under the Act, s 117 of the Act provides that each party…

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 Preiss & Preiss (No 4)

Details

AGLC: Preiss & Preiss (No 4) [2018] FamCA 1050
Case: [2018] FamCA 1050
Decision Date: 11 December 2018

CaseChat Overview and Summary

In *Preiss & Preiss (No 4)*, Cronin J of the Family Court of Australia considered applications by the husband and wife concerning costs and the dismissal of their respective written submissions.

The central legal issue before the court was the appropriate orders to be made regarding the costs of an application for summary dismissal, and the dismissal of further written submissions filed by the parties.

Cronin J ordered that the husband pay the wife’s costs associated with the application for summary dismissal from 5 October 2018, by agreement or assessment. The court further ordered that the respective applications by way of written submission filed on 30 November and 7 December 2018 be dismissed.

Orders

Orders of the court

The husband pay the wife’s costs associated with the application for summary dismissal as and from 5 October 2018 by agreement, and in default of agreement, as assessed.

That the respective applications by way of written submission filed on 30 November and 7 December 2018 are otherwise dismissed.

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

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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