Tang & Keats - [2016] FamCA 99

FAMILY COURT OF AUSTRALIA

TANG & KEATS

[2016] FamCA 99

FAMILY LAW – COSTS – order sought on a joint and several basis against solicitor and client where adjournment was necessitated by evidence not being comprehensively prepared.

Family Law Act 1975 (Cth)

Cassidy v Murray[1995] FamCA 91; (1995) FLC 92-633
Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Forster & Forster [2014] Fam CAFC 88
I and I (No 2) (1995) FLC 92-625
Minister for Immigration and Multicultural Affairs v Vadarlis (No 2) (2001) 188 ALR 143 citing with approval Cretazzo v Lombardi [1975] 13 SASR 4 and Chilli v Abbott (1981) 53 FLR 108
Munday and Bowman (1997) FLC 92-784
Prantage and Prantage [2013] FamCAFC 105
Re: Felton (1942) 60 WN (NSW) 16
Z & Limousin [2010] FamCAFC 59; (2010) FLC 93-433

APPLICANT:

Ms Tang

RESPONDENT:

Mr Keats

FILE NUMBER:

MLC

8207

2014

DATE DELIVERED:

25 February 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18, 19 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkins

SOLICITOR FOR THE APPLICANT:

Kennedy Guy Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hutchins

SOLICITOR FOR THE RESPONDENT:

Zeno Lawyers

Orders

That the wife and solicitor, Ms Gault, be jointly and severally liable for the husband’s costs thrown away fixed in the sum of $10,100.
That all extant applications for final orders be adjourned to commence as a two day hearing on 4 August 2016.
That the wife file and serve any affidavit material upon which she intends to rely by 4.00pm on 28 March 2016.
That the husband file and serve any affidavit he is so advised in reply to the affidavit material of the wife by no later than 4.00pm on 29 April 2016.
That each party have liberty to have subpoenae issued as they are so advised subject to the usual conditions that the solicitors certify that the evidence sought is relevant to the issues in dispute.
That the outlines of case (to the extent they are amended) be filed as required by the orders of 6 October 2015 but by 4.00pm on 1 August 2016.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tang & Keats has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8207 of 2014

Ms Tang

Applicant

And

Mr Keats

Respondent

REASONS FOR JUDGMENT

These reasons explain a costs order set out at their commencement.
The order requires that a litigant and her solicitor be jointly and severally liable for costs incurred by the other litigant for the reasons that follow.
Proceedings about the parties’ property and their children have been in the litigation system of this Court since 2014. The parenting proceedings…

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 Tang & Keats

Details

AGLC: Tang & Keats [2016] FamCA 99
Case: [2016] FamCA 99
Decision Date: 25 February 2016

CaseChat Overview and Summary

In the Family Court of Australia, Justice Cronin considered an application for costs against the wife and her solicitor, Ms Gault, in proceedings between a husband and wife. The dispute concerned costs thrown away, with the husband seeking an order for these costs against both the wife and her legal representative.

The central legal issue before the court was whether the wife and her solicitor should be held jointly and severally liable for the husband's costs thrown away. This required the court to consider the circumstances that led to the costs being incurred and the conduct of the parties, particularly the wife and her solicitor, in relation to those costs.

Justice Cronin reasoned that the wife and Ms Gault were jointly and severally liable for the husband's costs thrown away, fixing this amount at $10,100. The court also made directions regarding the adjournment of applications for final orders, setting a two-day hearing for 4 August 2016. Further orders stipulated timelines for the filing and service of affidavit material by both the wife and the husband, and allowed for the issuance of subpoenas subject to usual conditions. The court certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

That the wife and solicitor, Ms Gault, be jointly and severally liable for the husband’s costs thrown away fixed in the sum of $10,100.

That all extant applications for final orders be adjourned to commence as a two day hearing on 4 August 2016.

That the wife file and serve any affidavit material upon which she intends to rely by 4.00pm on 28 March 2016.

That the husband file and serve any affidavit he is so advised in reply to the affidavit material of the wife by no later than 4.00pm on 29 April 2016.

That each party have liberty to have subpoenae issued as they are so advised subject to the usual conditions that the solicitors certify that the evidence sought is relevant to the issues in dispute.

That the outlines of case (to the extent they are amended) be filed as required by the orders of 6 October 2015 but by 4.00pm on 1 August 2016.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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