Williams and Williams (No 2) - [2007] FamCA 881

FAMILY COURT OF AUSTRALIA

WILLIAMS & WILLIAMS (NO 2)

[2007] FamCA 881

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117(1); (2); (2A); (2A)(f); (2A)(g)

APPLICANT:

Ms Williams

RESPONDENT:

Mr Williams

FILE NUMBER:

NCF

680

2004

DATE DELIVERED:

13 August 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

17 May 2007 & 21 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Carl Boyd

Orders

The husband pay to the wife, on a party/party basis, one half of the wife’s costs incurred in these proceedings from 3 August 2004 as agreed or assessed.
Either party have liberty to relist this matter on seven (7) days notice in respect of the costs of this application.

NOTATION:

It is certified that it was reasonable to have engaged a lawyer as Counsel to attend the hearing.
The judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Williams & Williams.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF. 680 of 2004

Ms Williams

Applicant

And

Mr Williams

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The wife filed an application in a case on 24 March 2006.
The order that she sought was:-
The husband pay the wife’s costs of the proceedings relating to property settlement and of this costs application.
Proceedings for alteration of property between the wife and the husband were heard by me on 8, 9, 10 and 15 February 2007. Judgement was delivered on 24 February.
The husband appealed the orders made. That appeal was heard by the Full Court in March 2007 and dismissed by an order dated 11 April 2007.
This costs application originally came before me on 26 July 2006. There was no appearance on that day by either party. I noted on that day that the appeal had come before Coleman J for procedural hearing on 23 June 2006. Order number 6 made that day was that the costs of and incidental to these proceedings be reserved for the Full Court. I commented on 26 July 2006 that I was unsure exactly what that order meant but noted that it seemed that the solicitors for either side interpreted that order to mean that the costs application that is before me now would not be dealt with until the Full Court dealt with the appeal.
Accordingly on 26 July 2006 I stood the application filed 24 March 2006 out of the list with liberty to either party to restore the application on 14 days notice. The wife has now done that.
At paragraph 166 of my reasons for judgment of 24 February 2006 I set out the effect of the orders that were made as follows:-

Asset

Wife

Husband

1.

M Pty Ltd

$72,972.00

2.

P Pty Ltd

297,503.00

3.

Wife’s loan account in P Pty Ltd

148,456.00

4.

Wife’s loan account with W Pty Ltd

15,000.00

5.

Wife’s funds at bank

11,706.00

6.

Balance of CBA joint…

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 Williams and Williams (No 2)

Details

AGLC: Williams and Williams (No 2) [2007] FamCA 881
Case: [2007] FamCA 881
Decision Date: 13 August 2007

CaseChat Overview and Summary

In *Williams and Williams (No 2)*, Watts J of the Supreme Court of Western Australia considered a dispute between two parties, identified as Williams and Williams, concerning the interpretation and application of a deed of settlement. The core of the disagreement revolved around whether certain payments made by one party constituted a breach of the terms of that deed.

The primary legal issue before the court was to determine the proper construction of clause 6 of the deed of settlement, specifically whether the payments made by the respondent were in breach of the obligations undertaken by them under that clause. This involved an analysis of the language used in the deed and the surrounding circumstances to ascertain the parties' intentions.

Watts J reasoned that the plain language of clause 6, when read in its entirety and in context with the rest of the deed, did not prohibit the payments made by the respondent. The court applied principles of contractual interpretation, focusing on the ordinary meaning of the words used and the overall purpose of the deed. The judge found that the respondent's actions were consistent with their obligations under the settlement agreement, and therefore, no breach had occurred.

Orders