Sholl and Bartlett - [2014] FCCA 283

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHOLL & BARTLETT

[2014] FCCA 283

Catchwords:
FAMILY LAW – Costs on an indemnity basis – consideration of s.117 – wife wholly unsuccessful – costs awarded.

Legislation:

Family Law Act 1975

Federal Court Rules 2001

JEL & DDF (No.2) (2001) FLC 93

Kohan & Kohan (1993) FLC 92-340
Mallet & Mallet (1984) FLC 91-507

Prantage & Prantage [2013] FamCAFC 105

Applicant:

MR SHOLL

Respondent:

MS BARTLETT

File Number:

MLC 3487 of 2010

Judgment of:

Judge McGuire

Hearing date:

19 February 2014

Date of Last Submission:

19 February 2014

Delivered at:

Melbourne

Delivered on:

3 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr O'Neill

Solicitors for the Applicant:

Best Wilson Family Lawyers

Solicitors for the Respondent:

Unrepresented

ORDERS

That the wife Ms Bartlett pay the costs of the husband Mr Sholl of and incidental to proceedings commenced 20 July 2010 on an indemnity basis and referred for assessment to the Costs Assessment Registrar of the Family Court of Australia in accordance with Chapter 19 Family Law Rules2004 and that the matter be transferred to the Family Court accordingly.
That otherwise all extant applications be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sholl & Bartlett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3487 of 2010

MR SHOLL

Applicant

And

MS BARTLETT

Respondent

REASONS FOR JUDGMENT

The only application prosecuted before me today is that by the husband Mr Sholl seeking costs on an indemnity basis against the wife and in a quantum of $93, 000.
The husband appears represented by Mr O’Neil, solicitor, from Rockhampton. Both appear by telephone link.
The wife has not appeared by herself or by Counsel today. This matter was listed by my order of the 27 November 2013 for hearing in respect of the husband’s application and also various applications filed by the wife. A direction was made that the wife attend in person. The matter came on at 10:00am whereupon my associate called the matter outside the Court. There was no answer to the call. In the circumstances of the background of this matter which will become apparent in these reasons, I stood the matter down to 11:45 am in case of the wife simply being delayed. My associate informed me that there was no contact by the wife with my chambers. There has been no message relayed from the National Enquiry Centre. I returned to court at 10:55am and had the matter again called. There was no answer to the call. Consequently, I determined to proceed on the husband’s application on an undefended basis. I am asked by the husband’s advocate to dismiss the wife’s various applications for want of prosecution.
The relevant substantive proceedings between these parties was in respect of property matters. The wife has in fact been the applicant in those proceedings which were commenced as long ago as 20 July 2010.
The parties were in a relationship…

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 Sholl and Bartlett

Details

AGLC: Sholl and Bartlett [2014] FCCA 283
Case: [2014] FCCA 283
Decision Date: 3 April 2014

CaseChat Overview and Summary

In *Sholl and Bartlett*, the husband, Mr Sholl, sought costs against the wife, Ms Bartlett, on an indemnity basis in relation to proceedings commenced on 20 July 2010. The matter was before Judge McGuire of the Family Court of Australia.

The central legal issue before the Court was whether the wife should be ordered to pay the husband's costs of and incidental to the proceedings on an indemnity basis. The Court was also required to determine the disposition of all other extant applications.

Judge McGuire ordered that the wife pay the husband's costs of and incidental to the proceedings commenced on 20 July 2010 on an indemnity basis, with the matter to be transferred to the Family Court for assessment by the Costs Assessment Registrar in accordance with Chapter 19 of the *Family Law Rules 2004*. All other extant applications were dismissed.

Orders

Orders of the court

That the wife Ms Bartlett pay the costs of the husband Mr Sholl of and incidental to proceedings commenced 20 July 2010 on an indemnity basis and referred for assessment to the Costs Assessment Registrar of the Family Court of Australia in accordance with Chapter 19 Family Law Rules 2004 and that the matter be transferred to the Family Court accordingly.

That otherwise all extant applications be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.