Thanh and Anor and Grimshaw - [2015] FCCA 612

FEDERAL CIRCUIT COURT OF AUSTRALIA

THANH & ANOR & GRIMSHAW

[2015] FCCA 612

Catchwords:
FAMILY LAW – Costs – summary judgment application – where one party was wholly unsuccessful – indemnity costs sought – costs ordered in terms of Schedule 1 to the Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001, r.21.01, Schedule 1
Federal Circuit Court of Australia Act1999, s.86

Bigg v Suzi (1998) FLC 95-799
Bolinger v Ivy [2008] FamCA 274
Braithwaite & Braithwaite [2007] FamCA 468
Brown v Brown [1998] FamCA 115
Browne v Green (2002) FLC 93-115
Cachia v Hanes [1994] 179 CLR 403

Collins & Collins (1985) FLC 91-60
Grimshaw & Thanh & Anor [2014] FCCA 2614

In the Marriage of Fisher (1990) 13 Fam LR 806
In the Marriage of Harris (1987) FLC 91-822
In the Marriage of Murray (1990) FLC 92-173
In the Marriage of Rouse (1981) FLC 91-073
JEL & DDF (No.2) (2001) FLC 93-083
Kohan & Kohan (1993) FLC 92-340
Korsky v Bright & Anor (2007) FamCA 245
Latoudis v Casey(1990) 170 CLR 534
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311
Robinson & Higginbotham (1991) FLC 92-209

Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

Applicants:

MS THANH & MR THANH

Respondent:

MR GRIMSHAW

File Number:

SYC 7444 of 2013

Judgment of:

Judge Kemp

Date of Last Submission:

19 February 2015

Delivered at:

Sydney

Delivered on:

20 March 2015

REPRESENTATION

Solicitors for the Applicants:

Watts McCray

The Respondent appeared in person

ORDERS

(1)The respondent, Mr Grimshaw, pay the applicants the sum of $10,339.00 in respect of costs, within 60 days of today’s date.
(2)The matter be removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7444 of 2013

MS THANH & MR THANH

Applicants

And

MR GRIMSHAW

Respondent

REASONS FOR JUDGMENT

Introduction

The applicants filed an application on 5 December 2014 in which they sought an order for costs.
On 8 December 2014, the Court made the following orders in respect of the applicants’ costs application:
1. The applicants in the costs application (being the respondents in the substantive application) file and serve any written submissions within 5 weeks of today’s date.
2. The respondent to the costs application (being the applicant in the substantive application) file and serve any written submissions in response 5 weeks after compliance with order 1 above.
Since at least 12 March 2014, when the applicants (being the respondents in the substantive proceedings) filed their Response, they have sought that the respondent (being the applicant in the substantive proceedings) pay their costs on an indemnity basis.
The applicants rely on the following:
a)The affidavits of the first applicant (“the mother”):
i)Sworn 11 March 2014 and filed 12 March…

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.

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Details

Case: [2015] FCCA 612
Decision Date: 20 March 2015

CaseChat Overview and Summary

In the matter of *Thanh and Anor v Grimshaw*, heard before Judge Kemp, the applicants sought to recover damages from the respondent. The precise nature of the dispute leading to the claim for damages is not detailed in the provided text, however, the outcome indicates a resolution concerning costs.

The central legal issue before the court was the determination of costs payable by the respondent to the applicants.

Judge Kemp ordered that the respondent, Mr Grimshaw, pay the applicants the sum of $10,339.00 in respect of costs. This payment was to be made within 60 days of the date of the order. Furthermore, the court ordered that the matter be removed from the active pending cases list, signifying the conclusion of proceedings.

Orders

Orders of the court

(1) The respondent, Mr Grimshaw, pay the applicants the sum of $10,339.00 in respect of costs, within 60 days of today’s date.

(2) The matter be removed from the active pending cases list.

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.