Sutton and Lasko and Ors (No.2) - [2019] FCCA 2684

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTTON & LASKO & ORS (No.2)

[2019] FCCA 2684

Catchwords:
FAMILY LAW – Application in a Case – no prospect of success – indemnity costs.

Legislation:

Family Law Act 1975 (Cth), ss.106B

Cases cited:

Ad Astra Institute Proprietary Limited v Australian Skills Quality Authority [2019] AATA 2514

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 255

In the Marriage of Heath (No 2) (1984) 9 Fam LR 642

Applicant:

MR SUTTON

First Respondent:

MS LASKO

Second Respondent:

MS THOMPSON

Third Respondent:

MR FINCH

Fourth Respondent:

COMPANY C PTY LTD

File Number:

MLC 9211 of 2017

Judgment of:

Judge McNab

Hearing date:

23 August 2019

Date of Last Submission:

23 August 2019

Delivered at:

Melbourne

Delivered on:

23 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Vohra SC

Solicitors for the Applicant:

Marshalls + Dent + Wilmoth

Counsel for the First Respondent:

Dr Ingleby

Solicitors for the First Respondent:

Berger Kordos Lawyers

Counsel for the Second Respondent:

Mr Wilson QC

Solicitors for the Second Respondent:

PCL Lawyers

Counsel for the Third and Fourth Respondents:

Ms Fisken

Solicitors for the Third and Fourth Respondents:

Lampe Family Lawyers

ORDERS

The Second Respondent pay costs forthwith fixed in the sum of:
(a)$29,400 to the First Respondent; and
(b)$63,400 to the Third and Fourth Respondents.
The funds held by PCL lawyers pursuant to the undertaking given to the Court and recorded in the Court Orders of 20 June 2019 be released to pay the costs ordered in Order 1.
The costs of the Applicant be reserved.
The Application in a Case filed 19 June 2019 and the amended Application in a Case filed 28 June 2019 by the Second Respondent be dismissed.
Order 2 of the Minute of Orders in the Interim Orders of 20 June 2019 and Order 2 of the Interim Orders of 12 July 2019 be discharged.
The Third and Fourth Respondents be removed as parties to these proceedings pursuant to rule 11.04(1) of the Federal Circuit Court Rules 2011 (Cth).
The matter be adjourned with priority to the Federal Circuit Court of Australia in Melbourne on 2 March 2020 at 10am for Final Hearing, with an estimated hearing time of 5 days.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
The further hearing of the Application in a Case filed by the First Respondent on 21 August 2019 be adjourned to the Federal Circuit Court of Australia in Melbourne on 16 September 2019 at 11am.
On or before 12 September 2019 the Husband file and serve an affidavit:
(a)in specific response to the third sentence of paragraph 72(e) of and Annexure -36 to the affidavit of Mr A sworn 2 August 2019;

BY CONSENT THAT:

(b)deposing to all knowledge as to…

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.

Keep reading for free

Create a free CaseChat account to read Sutton and Lasko and Ors (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCCA 2684
Decision Date: 23 August 2019

CaseChat Overview and Summary

In *Sutton and Lasko and Ors (No.2)*, Judge McNab of the Federal Circuit Court of Australia considered an application by the Second Respondent, which was dismissed. The proceedings involved the First Respondent, the Second Respondent, and the Third and Fourth Respondents, with the Applicant's costs being reserved.

The court was required to determine the disposition of applications filed by the Second Respondent, the removal of the Third and Fourth Respondents as parties, the payment of costs, and the future conduct of the proceedings, including the scheduling of a final hearing and interim procedural steps.

The court ordered that the Second Respondent pay the costs of the First Respondent and the Third and Fourth Respondents, with these costs to be paid from funds held by PCL lawyers. The Second Respondent's applications were dismissed, and certain interim orders were discharged. The Third and Fourth Respondents were removed as parties to the proceedings. The matter was adjourned for a final hearing, with specific directions given for the filing and service of affidavits and financial statements by the Husband and the Second Respondent in response to an application filed by the First Respondent.

Orders

Orders of the court

The Second Respondent pay costs forthwith fixed in the sum of:

(a) $29,400 to the First Respondent; and

(b) $63,400 to the Third and Fourth Respondents.

The funds held by PCL lawyers pursuant to the undertaking given to the Court and recorded in the Court Orders of 20 June 2019 be released to pay the costs ordered in Order 1.

The costs of the Applicant be reserved.

The Application in a Case filed 19 June 2019 and the amended Application in a Case filed 28 June 2019 by the Second Respondent be dismissed.

Order 2 of the Minute of Orders in the Interim Orders of 20 June 2019 and Order 2 of the Interim Orders of 12 July 2019 be discharged.

The Third and Fourth Respondents be removed as parties to these proceedings pursuant to rule 11.04(1) of the Federal Circuit Court Rules 2011 (Cth).

The matter be adjourned with priority to the Federal Circuit Court of Australia in Melbourne on 2 March 2020 at 10am for Final Hearing, with an estimated hearing time of 5 days.

The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

The further hearing of the Application in a Case filed by the First Respondent on 21 August 2019 be adjourned to the Federal Circuit Court of Australia in Melbourne on 16 September 2019 at 11am.

10.

On or before 12 September 2019 the Husband file and serve an affidavit:

(a) in specific response to the third sentence of paragraph 72(e) of and Annexure -36 to the affidavit of Mr A sworn 2 August 2019;

BY CONSENT THAT:

(b) deposing to all knowledge as to any bank account held by him in Bank B and in particular whether he has ever held an account with Bank B ending …;

(d) any affidavit(s) upon which the Husband relies in response to the Application in a Case filed by the First Respondent Wife on 21 August 2019.

11.

On or before 12 September 2019, the Second Respondent file and serve any affidavit(s) upon which she relies in response to the Application in a Case filed by the First Respondent on 21 August 2019.

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.