Southern & Southern - [2017] FamCA 128

FAMILY COURT OF AUSTRALIA

SOUTHERN & SOUTHERN AND ORS

[2017] FamCA 128

FAMILY LAW – PRACTICE AND PROCEDURE – Disjoinder.
FAMILY LAW – COSTS – Order made on party/party basis.

Family Law Act 1975 (Cth)

B Proprietary Limited & K (2008) CAFC 113
Wayne & Dillion & Dillion (2008) FamCAFC 204

APPLICANT:

Mr Southern

1^st RESPONDENT:

Ms Southern

2^nd RESPONDENT:

B & C Trustee in Bankruptcy

3^rd RESPONDENT:

D Pty Ltd

4^th RESPONDENT:

E Pty Ltd

INTERVENORS:

Mr F Southern and Ms G Southern

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

LEC

629

2011

DATE DELIVERED:

27 February 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

27 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Pellandine, Jensens Solicitors & Attorneys

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Balzamo of Counsel

SOLICITOR FOR THE 1^ST RESPONDENT:

Hannigans Solicitors

2^ND RESPONDENT:

No appearance

COUNSEL FOR THE 3^RD RESPONDENT:

Ms Oakley of Counsel

SOLICITOR FOR THE 3^RD RESPONDENT:

SS Lawyers Pty Ltd

COUNSEL FOR THE 4^TH RESPONDENT:

Mr Balzamo of Counsel

SOLICITOR FOR THE 4^TH RESPONDENT:

Hannigans Solicitors

COUNSEL FOR THE INTERVENORS:

Ms Oakley of Counsel

SOLICITOR FOR THE INTERVENORS:

SS Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

UPON NOTIFICATION BY THE THIRD RESPONDENT that it intends filing a Notice of Discontinuance as noted IT IS ORDERED BY CONSENT THAT

D Pty Ltd pay E Pty Ltd costs of and incidental to the proceedings in an amount as agreed between the parties or, failing agreement, as assessed on a party and party basis.

AND IT IS FURTHER ORDERED THAT

E Pty Ltd be removed as a party to the proceedings.
The Applicant pay E Pty Ltd’s costs of and incidental to the interim Application (contained within the Response to Further Second Amended Initiating Application filed 2 November 2016) on a party and party basis in an amount agreed between the parties and, failing agreement, as assessed on a party and party basis.
The Applicant pay those costs within 28 days of either the finalisation of the proceedings (being those between the Applicant and First Respondent in which the Applicant seeks to set aside the Binding Financial Agreement) by the making of consent orders or by way of order made following trial.

IT IS NOTED THAT

(A)D Pty Ltd intends to file a Notice of Discontinuance in relation to the orders sought against E Pty Ltd as contained within the Response to Further Second Amended Initiating Application filed on 29 November 2016.
(B)The Interveners intend to file a Notice of Discontinuance in relation to the relief sought in Clauses 4 and 5 of the Response to Initiating Application filed on 25 October 2015.

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 <pseudonym

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 Southern & Southern

Details

AGLC: Southern & Southern [2017] FamCA 128
Case: [2017] FamCA 128
Decision Date: 27 February 2017

CaseChat Overview and Summary

In the matter of *Southern & Southern*, Hogan J dealt with an application concerning costs and the removal of a party from proceedings. The dispute involved D Pty Ltd and E Pty Ltd, with E Pty Ltd being a third respondent. The proceedings concerned an application by the Applicant to set aside a Binding Financial Agreement.

The court was required to determine the appropriate orders regarding the costs of E Pty Ltd, which had indicated its intention to discontinue its involvement. Specifically, the court needed to decide who would bear E Pty Ltd's costs and on what basis those costs would be assessed.

Hogan J ordered by consent that D Pty Ltd pay E Pty Ltd's costs of and incidental to the proceedings, to be agreed or assessed on a party and party basis. Furthermore, E Pty Ltd was to be removed as a party to the proceedings. The Applicant was also ordered to pay E Pty Ltd's costs related to an interim application, also to be agreed or assessed on a party and party basis, with payment due within 28 days of the finalisation of the main proceedings.

Orders

Orders of the court

UPON NOTIFICATION BY THE THIRD RESPONDENT that it intends filing a Notice of Discontinuance as noted IT IS ORDERED BY CONSENT THAT

D Pty Ltd pay E Pty Ltd costs of and incidental to the proceedings in an amount as agreed between the parties or, failing agreement, as assessed on a party and party basis.

AND IT IS FURTHER ORDERED THAT

E Pty Ltd be removed as a party to the proceedings.

The Applicant pay E Pty Ltd’s costs of and incidental to the interim Application (contained within the Response to Further Second Amended Initiating Application filed 2 November 2016) on a party and party basis in an amount agreed between the parties and, failing agreement, as assessed on a party and party basis.

The Applicant pay those costs within 28 days of either the finalisation of the proceedings (being those between the Applicant and First Respondent in which the Applicant seeks to set aside the Binding Financial Agreement) by the making of consent orders or by way of order made following trial.

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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