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Walker and Morton (No 2)

Walker and Morton (No 2)

Case [2016] FamCA 1086 20 December 2016

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FAMILY COURT OF AUSTRALIA

WALKER & MORTON (NO 2)

[2016] FamCA 1086

FAMILY LAW – COSTS – Application by the wife that the husband pay the costs of their property and parenting proceedings on an indemnity basis – Consideration of s 117(2A) of the Family Law Act – Where the wife was wholly unsuccessful in the parenting proceedings – Where both parties were unsuccessful in regards to their respective applications for property settlement – Where extensive offers of settlement were exchanged between the parties – Where exceptional circumstances do not exist to warrant an order for indemnity costs – Orders made that the husband pay half of the wife’s costs of the proceedings as assessed or agreed.

Family Law Act 1975 (Cth), s 117(2A)
Family Law Rules 2004 (Cth) r 19.18

Prantage & Prantage (2013) 49 Fam LR 197
Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Hand & Bodilly [2013] FamCAFC 98
Australian Transport Insurance Pty Ltd & Anor v Graeme Phillips Road Transport Insurance Pty Ltd& Ors (1986) 71 ALR 287
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd & Ors (1988) 81 ALR 397

APPLICANT:

Ms Walker

RESPONDENT:

Mr Morton

FILE NUMBER:

SYC

1793

2012

DATE DELIVERED:

20 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

McDonell Milne Toltz Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Slater and Gordon

Orders

IT IS ORDERED

That the husband pay one half of the wife’s costs of the proceedings from 6 March 2013 to the conclusion of the trial as assessed or agreed, such payment to be made within 30 days of the assessment or agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walker & Morton (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1793 of 2012

Ms Walker

Applicant

And

Mr Morton

Respondent

REASONS FOR JUDGMENT

On 10 June 2016, Reasons were delivered and Orders made in proceedings for parenting orders and financial orders between Ms Walker (“the wife”) and Mr Morton (“the husband”).
The Orders made provided for the children to live with each parent on a week-about basis and for the property of the parties to be divided as to 75 per cent to the wife and 25 per cent to the husband. In these Reasons, the parties’ jointly owned former home…

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 Walker and Morton (No 2)

Details

AGLC: Walker and Morton (No 2) [2016] FamCA 1086
Case: [2016] FamCA 1086
Decision Date: 20 December 2016

CaseChat Overview and Summary

In *Walker and Morton (No 2)*, Rees J of the Family Court of Australia considered an application for costs following a trial concerning property settlement. The proceedings involved a husband and wife, and the dispute revolved around the allocation of legal costs incurred during the trial.

The primary legal issue before the court was whether the husband should be ordered to pay a portion of the wife's costs of the proceedings from a specific date until the conclusion of the trial. This required the court to consider the conduct of the parties during the litigation and whether any such conduct warranted a departure from the usual rule that each party bears their own costs.

Rees J determined that the husband should contribute to the wife's costs. The reasoning for this decision, though not fully detailed in the provided text, implies that the court found grounds to award costs against the husband based on the parties' conduct during the trial. The court applied principles relating to the exercise of discretion in awarding costs in family law proceedings, likely considering factors such as unreasonable behaviour or a failure to achieve a better outcome.

Consequently, the court ordered that the husband pay one half of the wife’s costs of the proceedings from 6 March 2013 to the conclusion of the trial, with payment to be made within 30 days of assessment or agreement.

Orders

Orders of the court

IT IS ORDERED

That the husband pay one half of the wife’s costs of the proceedings from 6 March 2013 to the conclusion of the trial as assessed or agreed, such payment to be made within 30 days of the assessment or agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.

Citations

AGLC Citation

Walker and Morton (No 2) [2016] FamCA 1086

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Cases cited in this decision · 12 of 12 shown

Hand & Bodilly
[2013] FamCAFC 98 Para 4

…In Hand & Bodilly [2013] FamCAFC 98 (“ Hand & Bodilly ”) the Full Court (per Faulks DCJ, Ryan and Watts JJ) considered the appropriateness of an order for indemnity costs, where party/party costs or solicitor/client costs could be ordered. In Hand & Bodilly, the difference between party/party costs and solicitor/cli…
Christie v Christie
[2007] FamCA 125 Para 1

…ave been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another case cited in argument was Australian Guarantee Corporation Ltd v De Jager [1984…
Bouras v Grandelis
[2005] NSWCA 463 Para 5

…er: 102.… Sometimes that discussion equates “solicitor and client” costs with “indemnity” costs but as Santow JA said in Bouras v Grandelis (2005) 65 NSWLR 214: 125. The weight of authority is that solicitor and client costs and indemnity costs are distinct, though the difference between them has been eroded by practi…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 8

…n Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal) ; Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 1

…). In their majority judgment, Thackray and Ryan JJ set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 (“ Colgate-Palmolive v Cussons ”) should continue to be applied in the Family Court of Australia.…
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3)
[1979] FCA 143 Para 1

…J said: That discretion is “absolute and unfettered”, but must be exercised judicially ( Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201 at 207). Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where…
Thors v Weekes
[1989] FCA 795 Para 8

…alse and the making of irrelevant allegations of fraud (both referred to by Walkerward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were c…
Re Wilcox, Ex parte Venture Industries Pty Ltd
[1996] FCA 1942 Para 2

…The relevant principles (as summarised by Cooper and Merkel JJ in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 at 156-157) were reproduced in Prantage at [82]: 82. … 1.Section 43 of the FCA confers an absolute and unfettered discretion on the Court to make orders as to costs but the discretion mu…
Andrews v Barnes
(1888) 39 ChD 133 Para 1

…the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another ca…
Forester v Read
(1870) 6 Ch App 40 Para 1

…de knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another case cited in argument was Australian…
Maitland Hospital v Fisher
268 ALR 1 Para 8

…When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive v Cussons at 257 where his Honour reviewed the authorities and said: 4. … The tests have been variously put. The Court of Appea…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 8

…ngation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal) ; Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
117(2A) 2 mentions (from Para 1)
Family Law Rules 2004 (Cth)
19.18 2 mentions (from Para 4)