Wales v Wales (No 2) - [2015] VSCA 365

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0047

PERSEPHONE WALES (as the representative of the Estate of MURRAY WRIGHT WALES, deceased)	First Applicant
and
ROHAN WRIGHT WALES	Second Applicant
v
GLADYS WALES	First Respondent
and
ROSLYN MATEAR	Second Respondent
and
SUZANNE MARIE CASE	Third Respondent
S APCI 2015 0066
JULIAN WALES	Applicant
v
GLADYS WALES	First Respondent
and
ROSLYN MATEAR	Second Respondent
and
SUZANNE MARIE CASE	Third Respondent

---

JUDGES:	KYROU and McLEISH JJA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 December 2015
DATE OF JUDGMENT:	18 December 2015
MEDIUM NEUTRAL CITATION:	Wales v Wales (No 2) [2015] VSCA 365

---

COSTS – Trustees – Application for leave to appeal refused – Whether respondents’ costs of negotiating summary of facts should be paid by applicant – Whether applicant’s costs of preparing amended written case should be paid by respondents – Applicant ordered to pay respondents’ costs of the application for leave to appeal.

COSTS – Trustees – Applications for leave to appeal refused – Respondents sought direction that Costs Court may allow fees of senior counsel in excess of scale – Whether departure from scale justified – Direction refused – Supreme Court (Chapter I Scale of Costs Appendices A and B Amendment) Rules 2014 r 19.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants in S APCI 2015 0047	Mr R Wells	Tolhurst Druce & Emmerson
For the Applicant in S APCI 2015 0066	In person
For the Respondents	Mr C M Archibald	HWL Ebsworth Lawyers

KYROU JA
McLEISH JA
GINNANE AJA:

The Court dismissed these two applications for leave to appeal against orders as to costs in respect of a proceeding commenced and discontinued in the Trial Division.[1] The question of costs now falls to be decided.
[1]Wales v Wales [2015] VSCA 345.

The respondents in both applications sought orders that the respective applicants pay their costs of the application for leave. They also sought a direction that, in assessing or taxing those costs, the Costs Court may allow the fees of senior counsel for the respondents in excess of scale.

The applicants in proceeding S APCI 2015 0047 (‘the first proceeding’) accepted that they should pay the respondents’ costs but resisted the direction in respect of the costs of senior counsel.

Julian Wales, the applicant in proceeding S APCI 2015 0066 (‘the second proceeding’), appearing in person, also accepted that he should pay the respondents’ costs, except that he sought an order that the costs of the negotiations for a joint summary of facts, which took place between the parties between approximately 3 August 2015 and 17 September 2015, and the costs of preparing his amended written case, should instead be paid personally by the respondents. The joint summary in question was a summary in both proceedings which the registry had sought from all parties. When Julian Wales commenced the second proceeding, pursuant to leave to do so out of time, an agreed summary in the first proceeding was either in…

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 Wales v Wales (No 2)

Details

AGLC: Wales v Wales (No 2) [2015] VSCA 365
Case: [2015] VSCA 365
Decision Date: 18 December 2015

CaseChat Overview and Summary

The case of Wales v Wales (No 2) involved an application for leave to appeal against an earlier decision concerning the costs of a family law matter. The case was heard in the Family Court of Australia. The applicant, seeking leave to appeal, contested the decision of the primary judge regarding the allocation of costs between the parties. The primary judge had ruled that the applicant should bear the costs of negotiating a summary of facts and that the respondents should bear the costs of the applicant's preparation of an amended written case.

The legal issues before the court were twofold. Firstly, whether the respondents' costs of negotiating the summary of facts should be paid by the applicant. Secondly, whether the applicant's costs of preparing the amended written case should be paid by the respondents. Additionally, the respondents sought a direction that the Costs Court may allow fees of senior counsel in excess of the scale, arguing that the departure from the scale was justified.

The court found that the applicant's application for leave to appeal was without merit and therefore refused the application. Regarding the costs, the court held that the primary judge's assessment of the costs was appropriate, and thus the respondents were entitled to their costs of negotiating the summary of facts from the applicant. Conversely, the court determined that the applicant should bear the costs of preparing the amended written case. The court also refused the respondents' application for a direction that the Costs Court may allow fees of senior counsel in excess of the scale, finding that there was no justification for departing from the established scale. The applicant was subsequently ordered to pay the respondents' costs of the application for leave to appeal.

Orders