Teh and Muir - [2017] FamCA 472

FAMILY COURT OF AUSTRALIA

TEH & MUIR

[2017] FamCA 472

FAMILY LAW – COSTS – Between parties – Where the respondent seeks an order for costs – Where the applicant has been wholly unsuccessful in the proceedings – Where it is appropriate to award costs – Where to order indemnity or party/party costs – Where an order for party/party costs in made in favour of the respondent.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 19.08, 19.09, 19.18

APPLICANT:

Ms Teh

RESPONDENT:

Ms Becke as case guardian for Mr Muir

FILE NUMBER:

ADC

1922

2014

DATE DELIVERED:

2 June 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

2 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance by Litigant

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Culshaw Miller Lawyers

Orders

I fix the costs of the respondent to the proceedings being Ms Becke as Case Guardian for Mr Muir in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000).
That the applicant pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) for and on behalf of the respondent’s costs to the Trust Account of Culshaw Miller Lawyers or as may be otherwise directed by the respondent’s Case Guardian on or before 4 pm on 15 July 2017.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teh & Muir 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 ADELAIDE

FILE NUMBER: ADC 1922 of 2014

Ms Teh

Applicant

And

Ms Becke as Case Guardian for Mr Muir

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application, filed on 2 June 2014, the applicant in the proceedings Ms Teh (“Ms Teh”), sought orders for the enforcement of a binding financial agreement that she entered with Mr Muir (“the respondent”).
A Response was filed on 13 June 2014 by Ms Becke who sought that the binding financial agreement be set aside. Ms Becke is the case guardian for Mr Muir and was appointed by order of the Guardianship Board on 15 April 2014.

BACKGROUND

The short background to the matter is that the parties met in 2003. The applicant and her son spent some time in the respondent’s home before returning to City D in China. Following communication between the parties, the applicant and her son returned to Australia in 2010 with the intention of remaining in Australia on a more permanent basis.
The applicant contends that she and Mr Muir were at all relevant times in a de facto relationship. The case guardian asserts that at no time was the applicant in a de facto relationship with Mr Muir but rather, she and her son were mere boarders in the respondent’s home. It is alleged by the applicant that the de facto relationship existed between 26 January 2010 and 14 April 2014 and…

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 Teh and Muir

Details

AGLC: Teh and Muir [2017] FamCA 472
Case: [2017] FamCA 472
Decision Date: 2 June 2017

CaseChat Overview and Summary

In *Teh and Muir*, heard before Berman J, the applicant sought to recover costs from the respondent, Ms Becke, who was acting as Case Guardian for Mr Muir. The dispute concerned the quantum of costs to be awarded to the respondent.

The central legal issue before the court was the determination of a reasonable sum for the respondent's costs in the proceedings.

Berman J considered the submissions of the parties and fixed the costs of the respondent, Ms Becke as Case Guardian for Mr Muir, at $100,000. The applicant was ordered to pay this sum to the trust account of Culshaw Miller Lawyers, or as otherwise directed by the respondent's Case Guardian, by 4 pm on 15 July 2017.

Orders

Orders of the court

I fix the costs of the respondent to the proceedings being Ms Becke as Case Guardian for Mr Muir in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000).

That the applicant pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) for and on behalf of the respondent’s costs to the Trust Account of Culshaw Miller Lawyers or as may be otherwise directed by the respondent’s Case Guardian on or before 4 pm on 15 July 2017.

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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