Roland and ARGENTO & Anor - [2019] FamCA 550

FAMILY COURT OF AUSTRALIA

ROLAND & ARGENTO AND ANOR

[2019] FamCA 550

FAMILY LAW – PRACTICE AND PROCEDURE – Rule 6.15 Family Law Rules 2004 (Cth) – Where legal representative of deceased party makes application to be substituted in the proceedings – Where consideration of applicable principles – Whether proper for substitution order to be made – Where order made for substitution

FAMILY LAW – PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Where application made for security for costs against legal representative substituted for deceased party – Where consideration of applicable principles –Where application dismissed

Family Law Act 1975 (Cth) s 79, 117
Family Law Rules 2004 (Cth) r 6.15

Limousin & Limousin (Security for Costs) [2007] FamCA 1179
Luadaka & Luadaka (1998) FamCA 1520
Murdoch & Brown (No 2) [2013] FamCA 732
S (deceased) & S [2002] FamCA 1281
Strelys, G.F. and Strelys, E.R. [1987] FamCA 54
Strelys & Strelys; Lukaitis (Executor) [1988] FamCA 1

APPLICANT:

Mr Roland

RESPONDENT:

Ms Argento

INTERVENOR:

Mr Medland

FILE NUMBER:

PAC

2474

2013

DATE DELIVERED:

15 August 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Norris Sommers Maait Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy Solicitor

SOLICITOR FOR THE INTERVENOR:

Ms Nguyen

Orders

That pursuant to Rule 6.15 of the Family Law Rules 2004 (Cth) Mr F as legal representative of the deceased husband Mr Roland be substituted for the deceased husband as a party in these proceedings.
That the wife’s application for security for costs is dismissed.
That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days and upon completion of submissions judgment reserved to chambers.

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 Roland & Argento 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 PARRAMATTA

FILE NUMBER: PAC 2474 of 2013

Mr Roland

Applicant

And

Ms Argento

Respondent

REASONS FOR JUDGMENT

During the course of protracted property proceedings as between the applicant husband and respondent wife the applicant husband died in 2016.
An interlocutory issue has arisen as to the further conduct of the proceedings with an order being sought under the provisions of rule 6.15 of the Family Law Rules 2004 (Cth). That Rule provides:
Death of 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 Roland and ARGENTO & Anor

Details

AGLC: Roland and ARGENTO & Anor [2019] FamCA 550
Case: [2019] FamCA 550
Decision Date: 15 August 2019

CaseChat Overview and Summary

In the matter of Roland and Argento & Anor, Foster J of the Family Court of Australia considered an application by the legal representative of a deceased husband to be substituted as a party in the proceedings. The wife also made an application for security for costs against the substituted legal representative.

The court was required to determine whether it was appropriate to make an order substituting the legal representative for the deceased husband pursuant to Rule 6.15 of the Family Law Rules 2004 (Cth). Additionally, the court had to consider the principles applicable to an application for security for costs made against a legal representative who has been substituted for a deceased party.

Foster J reasoned that Rule 6.15 of the Family Law Rules 2004 (Cth) provided the necessary authority for the substitution of the legal representative for the deceased husband. The court found that the substitution was proper in the circumstances. Regarding the application for security for costs, the court dismissed the wife's application, applying the relevant legal principles governing such applications in this context.

Consequently, the court ordered that Mr F, as the legal representative of the deceased husband, be substituted as a party in the proceedings. The wife's application for security for costs was dismissed. The court also made directions regarding the filing of written submissions for any application for costs.

Orders

Orders of the court

That pursuant to Rule 6.15 of the Family Law Rules 2004 (Cth) Mr F as legal representative of the deceased husband Mr Roland be substituted for the deceased husband as a party in these proceedings.

That the wife’s application for security for costs is dismissed.

That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days and upon completion of submissions judgment reserved to chambers.

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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