Starkey v Starkey - [2009] FamCA 54

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY (COSTS)

[2009] FamCA 54

FAMILY LAW – COSTS – PROPERTY – Costs Case Guardians – Injunctive Relief – Application wholly unsuccessful – Application where court has no jurisdiction – Indemnity costs – Costs order against case guardians personally

Family Law Act 1975 (Cth) ss 4(e), 79, 114(1)(a), 117(1), 117(2A),
Family Court Rules 2004 Rule 6.13

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
JEL v DDF (No 2) (2001) FLC 93-083
Johnson v Johnson (No 2) (Costs) (2000) FLC 93-040
Kohan (1992) 16 FamLR 245
Latoudis v Casey (1990) 170 CLR 534
Munday v Bowman (1997) 22 FamLR 321
Penfold v Penfold (1980) FLC 90-800
Vodeniciotis v Vodeniciotis (1979) FLC 90-61

APPLICANT:

Mr Starkey

CASE GUARDIANS FOR APPLICANT:

Mr C and Mr T

RESPONDENT:

Ms Starkey

FILE NUMBER:

LEC

245

2007

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Murphy J

WRITTEN SUBMISSIONS RECEIVED:

By husband 23 December 2008

By wife in reply 27 January 2009
By wife in further reply 1 February 2009

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Somerville Laundry Lomax

SOLICITORS FOR THE RESPONDENT:

S & P Lawyers

Orders

1)The applicant husband, through his case guardians, pay the respondent’s costs of and incidental to the application in a case filed by the husband on 12 November 2008 and dismissed by order of the Court on 16 December 2008 to be agreed or assessed on a party and party basis.
2)The applicant husband pay the respondent’s costs of and incidental to the application for costs, to be agreed or assessed on a party and party basis.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 245 of 2007

MR STARKEY

Applicant

And

MR C AND MR T

Case Guardians for the Applicant

And

MS STARKEY

Respondent

REASONS FOR JUDGMENT
COSTS

On 16 December 2009 I dismissed an application in a case and paragraph two of the Further Amended Application filed on 12 November 2008 each of which were filed on behalf of the husband through his case guardians.
The claims were dismissed by me for want of jurisdiction.
This is the determination of an application for costs made on behalf of the respondents. That application seeks costs on an indemnity basis. An order is also sought that the case guardians pay such costs personally.
This matter has been subject to significant litigation already. I have delivered previous reasons for Judgment in respect of aspects of that litigation.
The substantive proceedings are in respect of an application by the husband through his case guardians for property settlement pursuant to s 79 of the Act. As I have commented in previous reasons for Judgment, a significant undercurrent in that dispute, which has at its heart a very lengthy marriage between the husband and the wife, is an internecine family dispute…

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 Starkey v Starkey

Details

AGLC: Starkey v Starkey [2009] FamCA 54
Case: [2009] FamCA 54
Decision Date: 5 February 2009

CaseChat Overview and Summary

In *Starkey v Starkey*, Murphy J of the Federal Circuit Court of Australia considered an application for costs following the dismissal of a case filed by the applicant husband on 12 November 2008. The respondent wife sought an order for costs.

The primary legal issue before the Court was whether the applicant husband should be ordered to pay the respondent wife's costs of and incidental to the dismissed application, and also the costs of the subsequent application for costs.

Murphy J ordered that the applicant husband, through his case guardians, pay the respondent wife's costs of and incidental to the application filed on 12 November 2008, which was dismissed on 16 December 2008. These costs were to be agreed or assessed on a party and party basis. Furthermore, the applicant husband was ordered to pay the respondent wife's costs of and incidental to the application for costs, also to be agreed or assessed on a party and party basis.

Orders

Orders of the court

1) The applicant husband, through his case guardians, pay the respondent’s costs of and incidental to the application in a case filed by the husband on 12 November 2008 and dismissed by order of the Court on 16 December 2008 to be agreed or assessed on a party and party basis.

2) The applicant husband pay the respondent’s costs of and incidental to the application for costs, to be agreed or assessed on a party and party basis.

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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