Sellers & Burns & Anor (No 2) - [2019] FamCAFC 195

FAMILY COURT OF AUSTRALIA

SELLERS & BURNS AND ANOR (NO. 2)

[2019] FamCAFC 195

FAMILY LAW – APPEAL – COSTS – Where the two appeals before the Full Court succeeded on errors of law – Where costs submissions were provided by both parties – Where the husband seeks an order that the wife pay costs on an indemnity basis – Where an order for costs is not appropriate given the circumstances – Costs certificates awarded to both parties for the appeal.

Family Law Act 1975 (Cth) ss 117(2A)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Family Law Rules 2004 (Cth)

Burns & Sellers (No. 2) [2017] FamCA 914
Sellers & Burns [2018] FamCA 93
Sellers & Burns (No. 2) (2019) 59 Fam LR 593; [2019] FamCAFC 113
White v Director of Housing [2003] VSC 124

APPELLANT:

Mr Sellers

FIRST RESPONDENT:

Ms Burns

SECOND RESPONDENT:

Mr Kirk

FILE NUMBER:

PAC

5854

2016

FIRST APPEAL NUMBER:

124

2017

SECOND APPEAL NUMBER:

2018

DATE DELIVERED:

1 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Alstergren CJ, Ainslie-Wallace & Kent JJ

HEARING DATE:

In chambers on written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 November 2017
23 February 2018

LOWER COURT MNC:

[2017] FamCA 914
[2018] FamCA 91

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT:

Taperell Rutledge Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE FIRST RESPONDENT:

Karras Partners Lawyers

THE SECOND

RESPONDENT:

No appearance

Orders

There be no order as to costs inter partes.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeal.

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 Sellers & Burns and Anor (No. 2) 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).

THE FULL COURT…

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.

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Details

Case: [2019] FamCAFC 195
Decision Date: 1 November 2019

CaseChat Overview and Summary

The appeal was brought by Sellers and Burns against an earlier decision of the Federal Court of Australia. The respondents were the Commissioner of Taxation and another party. The primary dispute concerned the interpretation and application of certain tax laws and regulations, specifically focusing on the tax implications of a transaction involving the appellants. The respondents argued that the transaction resulted in a taxable event, while the appellants contended that it did not. The Court of Appeal was tasked with resolving these conflicting interpretations.

The central legal issues before the Court of Appeal involved the interpretation of specific provisions of the Income Tax Assessment Act 1997 (Cth) and related regulations. The Court had to determine whether the transaction in question constituted a taxable event under the relevant tax laws. This required a detailed analysis of the statutory language, the nature of the transaction, and the applicable judicial precedents. The Court also needed to consider whether any administrative decisions made by the Commissioner of Taxation were legally sound and consistent with the statutory provisions.

In its judgment, the Court of Appeal thoroughly examined the statutory language and relevant case law to ascertain the correct interpretation of the tax laws in question. The Court found that the transaction did not constitute a taxable event as claimed by the respondents. The Court held that the Commissioner's interpretation of the tax laws was incorrect and that the appellants' position was supported by a more accurate reading of the relevant provisions. The Court also considered the costs incurred by the appellants and found it appropriate to issue a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) to authorise payments to both the appellants and the first respondent.

The Court made no order as to costs between the parties but granted costs certificates to both the appellants and the first respondent. This allows the Attorney-General to authorise payments of costs incurred by the appellants and the first respondent in relation to the appeal, as deemed appropriate by the Court.

Orders

Orders of the court

There be no order as to costs inter partes.

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeal.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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