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Stanbury & Stanbury

Stanbury & Stanbury

Case [2021] FamCA 600 13 August 2021

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FAMILY COURT OF AUSTRALIA
Stanbury & Stanbury [2021] FamCA 600

File number(s): SYC 2960 of 2018

Judgment of: ALTOBELLI J

Date of judgment: 13 August 2021

Catchwords: FAMILY LAW – COSTS – where non-party liquidators of company owned by the husband and wife sought to be joined to proceedings but filed a Notice of Discontinuance before being formally joined – where husband and wife sought costs against the liquidators – consideration of right of indemnity – costs order made.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498; [2015] FCA 1281

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71

Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274

Silvia v Brodyn Pty Ltd (2007) 25 ACLC 385; [2007] NSWCA 55

Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick [2020] FCA 1755

Number of paragraphs: 24

Date of last submission/s: 21 May 2021

Date of hearing: 21 May 2021

Place: Sydney

Counsel for the First Applicant: Mr Fermanis

Solicitor for the First Applicant: Gramelis Attorneys

Solicitor Advocate for the Second Applicant: Ms Felicio

Solicitor for the Second Applicant: Felicio Law Firm

Counsel for the Respondent: Mr Skinner

Solicitor for the Respondent: JHK Legal
ORDERS

SYC 2960 of 2018

BETWEEN:
MS STANBURY

First Applicant

MR STANBURY

Second Applicant

AND:
MR D AND MR C AS LIQUIDATORS OF B PTY LTD ACN: … (IN LIQ)

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:
1.The Respondent pay the First and Second Applicants’ costs of and incidental to the Application in a Case filed by the Respondent on 25 March 2021 as agreed or as assessed, noting that the Respondent is entitled to a right of indemnity against the assets of B Pty Ltd ACN ….

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanbury & Stanbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:

The…

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 Stanbury & Stanbury

Details

AGLC: Stanbury & Stanbury [2021] FamCA 600
Case: [2021] FamCA 600
Decision Date: 13 August 2021

CaseChat Overview and Summary

In the matter of *Stanbury & Stanbury*, Altobelli J of the Family Court of Australia considered an application for costs brought by the First and Second Applicants against the respondents, who were the non-party liquidators of B Pty Ltd. The liquidators had sought to be joined to the proceedings but subsequently filed a Notice of Discontinuance before they were formally joined. The Applicants sought costs against the liquidators in relation to the discontinued application.

The central legal issue before the court was whether the Applicants were entitled to an order for costs against the liquidators, notwithstanding the liquidators' discontinuance of their application to be joined. This involved considering the general principles of costs in family law proceedings and the specific circumstances of non-party costs orders, particularly in relation to liquidators and their rights of indemnity.

Altobelli J reasoned that while liquidators generally have a right of indemnity against the assets of the company they are liquidating, this right does not automatically shield them from personal liability for costs in all circumstances. The court applied the principles governing costs, noting that a party seeking costs against a non-party, such as a liquidator, must demonstrate a sufficient basis for such an order. In this instance, the court found that the Applicants were entitled to their costs of and incidental to the application filed by the Respondent on 25 March 2021.

The court ordered that the Respondent liquidators pay the First and Second Applicants’ costs of and incidental to the application filed by the Respondent on 25 March 2021, as agreed or as assessed. Crucially, the order noted that the Respondent liquidators were entitled to a right of indemnity against the assets of B Pty Ltd, thereby acknowledging the source from which those costs would ultimately be drawn.

Orders

Orders of the court

SYC 2960 of 2018

BETWEEN:

MS STANBURY

First Applicant

MR STANBURY

Second Applicant

AND:

MR D AND MR C AS LIQUIDATORS OF B PTY LTD ACN: … (IN LIQ)

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1. The Respondent pay the First and Second Applicants’ costs of and incidental to the Application in a Case filed by the Respondent on 25 March 2021 as agreed or as assessed, noting that the Respondent is entitled to a right of indemnity against the assets of B Pty Ltd ACN ….

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

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 17.02 Family Law Rules 2004 (Cth).

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.

Citations

AGLC Citation

Stanbury & Stanbury [2021] FamCA 600

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick
[2020] FCA 1755 Para 20

…The question of public importance is a relevant one. In the recent decision of Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick [2020] FCA 1755 Markovic J at [53] accepted the proposition that where directors breached their duties owed to a company, it is a matter of public importance that they be…
Parke & The Estate of the Late A Parke
[2016] FamCAFC 248

…3 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274 Silvia v Brodyn Pty Ltd (2007) 25 ACLC 385; [2007] NSWCA 55…
Commissioner of Taxation v Warner (No 2)
[2015] FCA 1281

…– costs order made. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498; [2015] FCA 1281 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 In the Marriage of I & I (No. 2 ) (…
Medlon & Medlon (No. 6) (Indemnity Costs)
[2015] FamCAFC 157

…FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re Wilson Lovatt & Sons Ltd [19…
Commissioner of Taxation v Warner
[2015] FCA 659 Para 21

…In Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498, Perry J explored the circumstances in which any order as to costs should specify that the costs be paid as an expense in the liquidation and not by the liquidators personally. At [39] Perry J records: [39] The relevant principles, as id…
Silvia v Brodyn Pty Ltd
[2007] NSWCA 55 Para 1

…t out in Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274 and adopted by cases such as Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498 and Silvia v Brodyn Pty Ltd (2007) 25 ACLC 385 is to make a costs order against the liquidators personally, with their liability not limited to the amount of assets held by the company…
Mead v Watson
[2005] NSWCA 133

…(No. 2 ) (1995) FLC 92-625; [1995] FamCA 80 In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Pe…
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another
[2005] FamCA 158

…15) 244 FCR 498; [2015] FCA 1281 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 In the Marriage of I & I (No. 2 ) (1995) FLC 92-625; [1995] FamCA 80 In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC…
Adsett, N. v Berlouis, H
[1992] FCA 549 Para 18

…h his Honour relied as setting out the relevant principles was that of the Full Federal Court (Northrop, Wilcox and Cooper JJ) in Adsett v Berlouis (1992) 37 FCR 201. [12] In that case, the Court in a joint judgment (at 211) approved the following passage from the judgment of Bowen LJ in In re Beddoe; Downes v Cotta…
Adsett v Berlouis
[1992] FCA 368 Para 18

…decision upon which his Honour relied as setting out the relevant principles was that of the Full Federal Court (Northrop, Wilcox and Cooper JJ) in Adsett v Berlouis (1992) 37 FCR 201. [12] In that case, the Court in a joint judgment (at 211) approved the following passage from the judgment of Bowen LJ in In re Beddoe; Dow…
Penfold v Penfold
[1980] HCA 4

…-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274 Silvia v Brodyn Pty Ltd (2007) 25 ACLC 385; [2007] NSWCA 55 Tonks, in the matter of Ambient Rail Pty Ltd (in li…
[1993] FAMCA 71
[1993] FAMCA 71

…LR 123; [2005] FamCA 158 In the Marriage of I & I (No. 2 ) (1995) FLC 92-625; [1995] FamCA 80 In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the La…
[1995] FAMCA 80
[1995] FAMCA 80

…or A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 In the Marriage of I & I (No. 2 ) (1995) FLC 92-625; [1995] FamCA 80 In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 Medlon & Medlon (No. 6) (Indemnity Costs) (201…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
117 2 mentions (from Para 4)
Family Law Rules 2004 (Cth)
1 mention

File number(s):	SYC 2960 of 2018
Judgment of:	ALTOBELLI J
Date of judgment:	13 August 2021
Catchwords:	FAMILY LAW – COSTS – where non-party liquidators of company owned by the husband and wife sought to be joined to proceedings but filed a Notice of Discontinuance before being formally joined – where husband and wife sought costs against the liquidators – consideration of right of indemnity – costs order made.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Commissioner of Taxation v Warner (No 2) (2015) 244 FCR 498; [2015] FCA 1281 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80 In the Marriage of McAlpin (1993) FLC 92-411; [1993] FamCA 71 Mead v Watson (2005) 23 ACLC 718; [2005] NSWCA 133 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274 Silvia v Brodyn Pty Ltd (2007) 25 ACLC 385; [2007] NSWCA 55 Tonks, in the matter of Ambient Rail Pty Ltd (in liq) v Fishwick [2020] FCA 1755
Number of paragraphs:	24
Date of last submission/s:	21 May 2021
Date of hearing:	21 May 2021
Place:	Sydney
Counsel for the First Applicant:	Mr Fermanis
Solicitor for the First Applicant:	Gramelis Attorneys
Solicitor Advocate for the Second Applicant:	Ms Felicio
Solicitor for the Second Applicant:	Felicio Law Firm
Counsel for the Respondent:	Mr Skinner
Solicitor for the Respondent:	JHK Legal

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	13 AUGUST 2021