Viola and Latham and Ors - [2016] FamCA 354

FAMILY COURT OF AUSTRALIA

VIOLA & LATHAM AND ORS

[2016] FamCA 354

FAMILY LAW – COSTS – Application for costs of proposed respondents arising out of the wife’s unsuccessful action for leave to bring proceedings on behalf of companies pursuant to s 237 of the Corporations Act 2001 (Cth) – whether the wife’s application was an application pursuant to the Corporations Act 2001 (Cth) or the Family Law Act 1975 (Cth) – held that the wife’s application is not an application incidental to the property proceedings between she and the husband – where the proposed respondents are not parties to the property proceedings – finding that costs should follow the event – interim orders made for the wife to pay the costs of the proposed second and third respondents forthwith

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)

Markoska & Markoska and Anor (Costs) [2011] FamCA 833; (2012) 46 Fam LR 598

APPLICANT:

Ms Viola

FIRST RESPONDENT:	Mr Latham
PROPOSED SECOND RESPONDENT:	Mr Baxter

PROPOSED THIRD RESPONDENT:

D Pty Ltd

PROPOSED FOURTH RESPONDENT:

E Pty Ltd

FILE NUMBER:

MLC

5668

2012

DATE DELIVERED:

16 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

In chambers (by written submissions)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Peters

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE FIRST RESPONDENT AND THE PROPOSED FOURTH RESPONDENT:

Mr S Hay

SOLICITOR FOR THE FIRST RESPONDENT AND THE PROPOSED FOURTH RESPONDENT:

Kennedy Partners

COUNSEL FOR THE PROPOSED
SECOND AND THIRD RESPONDENTS:

Dr E Boros

SOLICITOR FOR THE PROPOSED SECOND AND THIRD RESPONDENTS:

Norton Gledhill

Orders

IT IS ORDERED THAT

The wife pay the costs of the proposed second and third respondents of and incidental to the wife’s Application in a Case filed 18 December 2014, as amended on 16 January 2015 and further amended on 13 February 2015.
The costs in paragraph 1 herein be agreed within 21 days of the date of these orders, or failing agreement, be assessed forthwith on a party-party basis, and payable immediately upon agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Viola & Latham and Ors 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 5668 of 2012

Ms Viola
First Applicant

And

Mr Latham
First Respondent

And

Mr Baxter
Proposed Second Respondent

And

D Pty Ltd
Proposed Third Respondent

And

E Pty Ltd
Proposed Fourth Respondent

REASONS FOR JUDGMENT

On 6 October 2015 I dismissed the wife’s application pursuant to s 237 of the Corporations Act 2001 (Cth) (“the Corporations Act”) for leave to bring derivative proceedings against the husband, Mr Baxter (“the proposed second respondent”), D Pty Ltd (“the proposed third respondent”) and E Pty Ltd (“the proposed fourth respondent”) on behalf of B Pty Ltd (“B”) and C Pty Ltd (“C”). On that date I also made orders that on…

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 Viola and Latham and Ors

Details

AGLC: Viola and Latham and Ors [2016] FamCA 354
Case: [2016] FamCA 354
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the matter of *Viola and Latham and Ors*, heard before Macmillan J, the wife sought orders against the second and third respondents. The dispute concerned the costs associated with the wife's Application in a Case, which had been filed and subsequently amended on multiple occasions.

The primary legal issue before the court was the determination of liability for the costs incurred by the second and third respondents in relation to the wife's application.

Macmillan J ordered that the wife was to pay the costs of the second and third respondents. These costs were to be agreed upon within 21 days of the court's orders, or if agreement could not be reached, they were to be assessed forthwith on a party-party basis. The costs were to be payable immediately upon agreement or assessment.

Orders

Orders of the court

IT IS ORDERED THAT

The wife pay the costs of the proposed second and third respondents of and incidental to the wife’s Application in a Case filed 18 December 2014, as amended on 16 January 2015 and further amended on 13 February 2015.

The costs in paragraph 1 herein be agreed within 21 days of the date of these orders, or failing agreement, be assessed forthwith on a party-party basis, and payable immediately upon agreement or assessment.

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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