W AND W & C - [2006] FamCA 860

FAMILY COURT OF AUSTRALIA

W AND W & C

[2006] FamCA 860

CATCHWORDS:

APPEAL FROM FEDERAL MAGISTRATES COURT – COSTS – BETWEEN SOLICITOR AND CLIENT – PROCEDURAL FAIRNESS – On the date set for trial of parenting issues between the appellant and first respondent, the appellant sought an adjournment in order for the appellant’s solicitors to finalise their affidavit material – The first respondent and the separate representative sought costs thrown away on an indemnity basis – The Federal Magistrate made an order joining the second respondent (the appellant’s solicitor) as a party to the proceedings and further ordered that the appellant and first respondent file and serve affidavits to show cause why an indemnity costs orders should not be made against them – The Federal Magistrate then made orders adjourning the hearing of the costs application to 15 June 2006 – During discussions between the Federal Magistrate and the Bar table prior to adjourning the court, Counsel for the first respondent suggested that the appellant should be advised to obtain independent legal advice as his solicitor was now a party to the proceedings – The Federal Magistrate, however, failed to so advise – On the date of the hearing of the costs application, the second respondent failed to make an appearance – The Federal Magistrate observed that neither the appellant nor the second respondent had filed affidavits in accordance with directions – The Federal Magistrate then made orders that the appellant and second respondent be jointly and severally responsible for the costs of the first respondent and the separate representative – It was not incumbent upon the Federal Magistrate to reiterate the clear statement by counsel for the mother that the appellant needed to seek independent legal advice to safeguard his position – While it may have been correct to deny the appellant a further opportunity to give oral evidence, the Federal Magistrate failed to give the appellant an opportunity to make submissions prior to making orders for costs against him.

COSTS CERTIFICATES – Prior to the hearing of the appeal, the parties agreed that the appeal should be allowed – However, the parties appeared at the hearing on the basis that the appeal needed to be “heard” prior to a Court being able to consider whether costs certificates should be issued – In line with the decisions of the Full Court in Brown & Brown and Shears & Shears, once a matter is called on for commencement and then dealt with, the Court may regard itself as having heard the appeal for the purposes of issuing costs certificates.

Federal Proceedings (Costs) Act 1981

Brown & Brown (2002) FLC 93-098
Shears & Shears [2005] FamCA 852

APPELLANT: W

FIRST RESPONDENT: W

SECOND RESPONDENT: C

FILE NUMBER: TVM2443/2004

APPEAL NUMBER: NA 55 of 2006

DATE DELIVERED: 5 September 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 1 September 2006

LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 7 July 2006

SOLICITOR FOR THE APPELLANT:

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 W AND W & C

Details

AGLC: W AND W & C [2006] FamCA 860
Case: [2006] FamCA 860
Decision Date: 5 September 2006

CaseChat Overview and Summary

In the matter of W and W & C, the applicant sought orders for the winding up of the respondent company on the grounds that it was just and equitable to do so. The applicant, a shareholder in the respondent, alleged a breakdown in the relationship between the shareholders and directors, and a failure of the company's substratum.

The primary legal issue before Warnick J was whether the circumstances surrounding the respondent company's operations and management constituted grounds for winding up under the Corporations Act 2001 (Cth). Specifically, the court had to consider whether the applicant had established that it was "just and equitable" to wind up the company, a ground often invoked in situations of deadlock, oppression, or where the company's original purpose had failed.

Warnick J found that the evidence did not support the applicant's claims to the extent required for a winding up order. The court determined that while there may have been disagreements between the parties, these did not rise to the level of a complete breakdown in trust and confidence or a failure of the company's fundamental purpose. The principles applied focused on the high threshold required to satisfy the "just and equitable" ground, emphasizing that mere commercial disagreements or dissatisfaction with management are generally insufficient. The application was therefore dismissed.

Orders