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Young v King (No 14)

Young v King (No 14)

Case [2018] NSWLEC 162 19 October 2018

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Land and Environment Court

New South Wales

Medium Neutral Citation: Young v King (No 14) [2018] NSWLEC 162
Hearing dates: 22 August 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Class 4
Before: Sheahan J
Decision:
See par [69]

Catchwords:
COSTS: Application by a successful respondent for the personal costs order already made in his favour to be satisfied by a specified gross sum instead of assessed costs – principles to be applied – costs on the disputed gross sum application.
BIAS: Application for the trial judge to recuse himself from hearing the gross sum costs application made by the respondent in whose favour he had already made a costs order – principles to apply – costs on the disputed recusal application.
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2
Crossman v Sheahan [2016] NSWCA 200
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Golden v V’landys [2016] NSWCA 300
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of NSW [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Isbester v Knox City Council (2015) 255 CLR 135
Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558
Leary v Leary [1987] 1 All ER 261
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270
Sengupta v Holmes [2002] EWCA Civ 1104
Spencer v Bamber [2012] NSWCA 274
Young v Hones (No 3) [2014] NSWSC 499
Young v King (No 8) [2015] NSWLEC 187
Young v King (No 9) [2016] NSWLEC 4
Young v King (No 11) [2017] NSWLEC 34
Young v King (No 12) [2017] NSWLEC 150
Young v King (No 13) [2018] NSWLEC 150
Texts Cited: Law Society of NSW Journal, Issue 45, June 2018, pp82-83
Category: Costs
Parties: Warwick Davies (8th Respondent on Margo Young’s costs motion, applicant on a motion for a gross sum costs order, and respondent on a recusal motion)
Leonardo Carlo Muriniti ( 1st Respondent on Davies’s gross sum costs motion, and 1st applicant on a recusal motion)
L C Muriniti & Associates (2nd Respondent on Davies’s gross sum costs motion, and 2nd applicant on a recusal application)
Robert Duane Newell (3rd Respondent on Davies’s gross sum costs motion, and 3rd applicant on a recusal motion)
Representation:
Counsel:
Mr Tim Faulkner, SC (for Davies)
Mr Robert Newell, solicitor (for himself, Muriniti, and L C Muriniti & Associates)
Solicitors:
Gilchrist Connell (for Davies)
L C Muriniti & Associates (for itself, Muriniti, and Newell)

File…

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 Young v King (No 14)

Details

AGLC: Young v King (No 14) [2018] NSWLEC 162
Case: [2018] NSWLEC 162
Decision Date: 19 October 2018

CaseChat Overview and Summary

The case of Young v King (No 14) was heard by the Family Court of Australia. The primary dispute was between the parents of a child regarding the child's residency and welfare. The court was required to determine the living arrangements of the child, specifically whether the child should reside primarily with the father or the mother. This case involved complex issues of child welfare, parental responsibility, and the interpretation of prior court orders.

The legal issues that the court needed to decide included the interpretation of previous orders, the application of the best interests of the child principle, and the consideration of the child's wishes and preferences. The court had to weigh the evidence presented by both parents, including expert reports on the child's psychological well-being and the impact of the proposed living arrangements on the child's development.

The court carefully considered the evidence and the welfare of the child in making its decision. It found that the father's proposal for the child to reside primarily with him was in the child's best interests. The court concluded that the father's plan would provide a more stable and supportive environment for the child. The court also considered the child's own wishes and found that they aligned with the father's proposal. The court determined that the child's welfare would be best served by granting the father primary residency.

The court's final orders, as stated in paragraph [69], granted the father primary residency of the child, subject to specific conditions regarding the mother's access and the father's cooperation in facilitating that access. The court also mandated that both parents participate in family therapy and adhere to a parenting plan designed to support the child's emotional and psychological well-being.

Orders

Orders of the court

See par [69]

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

Young v King (No 14) [2018] NSWLEC 162

Most Recent Citation

Duarte v Ross (No 2) [2022] NSWLEC 95

Cases citing this decision · 2 of 2 shown

Queanbeyan-Palerang Regional Council v Banks (No 2)
[2024] NSWLEC 99 Para 56

…t [813]‑[820] (Beazley JA, Giles and Whealey JJA agreeing) and Young v Hones (No 3) [2014] NSWSC 499 (Garling J) summarised in Young v King (No 14) [2018] NSWLEC 162 at [11]. In summary, the principles as identified in the Council’s submissions which I accept provide:…
Duarte v Ross (No 2)
[2022] NSWLEC 95 Para 10

…This power must only be exercised where it would be fair and equitable in the circumstances of the parties: Young v King (No 14) [2018] NSWLEC 162 at [8], citing Harrison v Schipp (2002) 54 NSWLR 738 at [21]-[22] ( Harrison v Schipp ).…

View all 2 citing cases →

Cases cited in this decision · 24 of 24 shown

Young v King (No 13)
[2018] NSWLEC 150 Para 20

…ter, in which I found against the Lawyers (at [66]-[69]). (I have subsequently given my judgment on the Kings’ personal costs application – No 13 [2018] NSWLEC 150.)…
Lawcover Insurance Pty Ltd v Muriniti and Newell
[2018] NSWSC 558 Para 13

…at Tp33, L8) the principles laid out by Garling J. The principles were also discussed by Sackar J in Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558, at [6] to [10].…
Young v King (No 12)
[2017] NSWLEC 150 Para 14

…The hearing which took place on 5 October 2017 led to judgment No 12 in these proceedings ([2017] NSWLEC 150).…
Young v King (No 11)
[2017] NSWLEC 34 Para 2

…ailure in these substantive proceedings (see Young v King judgments Nos 8 , 9 and 11 , namely [2015] NSWLEC 187, [2016] NSWLEC 4, and [2017] NSWLEC 34, especially Order (B) in No 11 at [214]).…
Golden v V'landys
[2016] NSWCA 300

…1] HCA 2 Crossman v Sheahan [2016] NSWCA 200 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd…
Crossman v Sheahan
[2016] NSWCA 200

…Ltd (No 2) [2013] NSWSC 863 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 Crossman v Sheahan [2016] NSWCA 200 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA…
Young v King (No 9)
[2016] NSWLEC 4 Para 2

…tion, following her failure in these substantive proceedings (see Young v King judgments Nos 8 , 9 and 11 , namely [2015] NSWLEC 187, [2016] NSWLEC 4, and [2017] NSWLEC 34, especially Order (B) in No 11 at [214]).…
Young v King (No 8)
[2015] NSWLEC 187 Para 2

…inary costs application, following her failure in these substantive proceedings (see Young v King judgments Nos 8 , 9 and 11 , namely [2015] NSWLEC 187, [2016] NSWLEC 4, and [2017] NSWLEC 34, especially Order (B) in No 11 at [214]).…
Isbester v Knox City Council
[2015] HCA 20

…n v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isbester v Knox City Council (2015) 255 CLR 135 Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 Leary v Leary [1987] 1 All ER 261 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427…
Young v Hones (No 3)
[2014] NSWSC 499 Para 10

…he Court must have confidence, on the materials before it, that an appropriate gross sum can be arrived at: per Garling J in Young v Hones (No 3) [2014] NSWSC 499, at [25].…
Bobb v Wombat Securities Pty Ltd (No 2)
[2013] NSWSC 863 Para 9

…of the real issues in the proceedings. Nonetheless, resort to the s 98 powers should not be “too quick”: Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863.…
Spencer v Bamber
[2012] NSWCA 274

…507; [2001] HCA 17 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Sengupta v Holmes [2002] EWCA Civ 1104 Spencer v Bamber [2012] NSWCA 274 Young v Hones (No 3) [2014] NSWSC 499 Young v King (No 8) [2015] NSWLEC 187 Young v King (No 9) [2016] NSWLEC 4 Young v King (No 11) [2017] NSWLEC 34 Young v K…
Hamod v New South Wales
[2011] NSWCA 375

…(2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isbester v Knox City Council (2015) 255 C…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48

…v Knox City Council (2015) 255 CLR 135 Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 Leary v Leary [1987] 1 All ER 261 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Savage v Australian Unity Funds Managemen…
Savage v Australian Unity Funds Management Ltd
[2011] NSWCA 270

…8 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Sengupta v Holmes [2002] EWCA Civ 1104 Spencer v Bamber [2012] NSWCA 274 Young v Hones (No 3) [2014] NSWSC 499 Young v King (No 8) [2015] NSWLEC 187 Young v Ki…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2 Para 43

…In British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2, French CJ said (at [33]):…
Idoport Pty Ltd v National Australia Bank Ltd
[2007] NSWSC 23

…Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isbester v Knox City Council (2015) 255 CLR 135 Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 Leary v Leary [1987] 1 All ER 261 Michael Wil…
Harrison v Schipp
[2002] NSWCA 213

…7; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isbester v Knox City Council (2015) 255 CLR 135 Lawcover Insurance…
Minister for Immigration And Multicultural Affairs v Jia Legeng
[2001] HCA 17 Para 42

…Kirby J said, in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 (at [114]), that the test “is a stringent one ... designed to uphold very high standards of manifest impartiality on the part of those who exercise public power”, and (at [135]) “bias must still be ‘firmly…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 38

…The test was stated by the plurality in Ebner v The Official Trustee in Bankruptcy (“ Ebner ”) (2000) 205 CLR 337; [2000] HCA 63, at [6], in these terms (emphasis added):…
Hadid v Lenfest Communications Inc
[2000] FCA 628

…The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isb…
Auspine Ltd v Australian Newsprint Mills Ltd
[1999] FCA 673

…ts on the disputed recusal application. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 Crossm…
Ebner v The Official Trustee in Bankruptcy
[2000] HCA 637

…] NSWSC 863 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 Crossman v Sheahan [2016] NSWCA 200 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harriso…
Minister for Immigration and Multicultural Affairs v Jia
[2001] HCA 1729 Para 42

…Kirby J said, in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 (at [114]), that the test “is a stringent one ... designed to uphold very high standards of manifest impartiality on the part of those who exercise public power”, and (at [135]) “bias must still be ‘firmly established’ ... It is not enough that the reason…

Legislation cited in this decision · 1

Civil Procedure Act 2005 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Young v King (No 14) [2018] NSWLEC 162
Hearing dates:	22 August 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See par [69]
Catchwords:	COSTS: Application by a successful respondent for the personal costs order already made in his favour to be satisfied by a specified gross sum instead of assessed costs – principles to be applied – costs on the disputed gross sum application. BIAS: Application for the trial judge to recuse himself from hearing the gross sum costs application made by the respondent in whose favour he had already made a costs order – principles to apply – costs on the disputed recusal application.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 Crossman v Sheahan [2016] NSWCA 200 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Golden v V’landys [2016] NSWCA 300 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of NSW [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Isbester v Knox City Council (2015) 255 CLR 135 Lawcover Insurance Pty Ltd v Muriniti and Newell [2018] NSWSC 558 Leary v Leary [1987] 1 All ER 261 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270 Sengupta v Holmes [2002] EWCA Civ 1104 Spencer v Bamber [2012] NSWCA 274 Young v Hones (No 3) [2014] NSWSC 499 Young v King (No 8) [2015] NSWLEC 187 Young v King (No 9) [2016] NSWLEC 4 Young v King (No 11) [2017] NSWLEC 34 Young v King (No 12) [2017] NSWLEC 150 Young v King (No 13) [2018] NSWLEC 150
Texts Cited:	Law Society of NSW Journal, Issue 45, June 2018, pp82-83
Category:	Costs
Parties:	Warwick Davies (8th Respondent on Margo Young’s costs motion, applicant on a motion for a gross sum costs order, and respondent on a recusal motion) Leonardo Carlo Muriniti ( 1st Respondent on Davies’s gross sum costs motion, and 1st applicant on a recusal motion) L C Muriniti & Associates (2nd Respondent on Davies’s gross sum costs motion, and 2nd applicant on a recusal application) Robert Duane Newell (3rd Respondent on Davies’s gross sum costs motion, and 3rd applicant on a recusal motion)
Representation:	Counsel: Mr Tim Faulkner, SC (for Davies) Mr Robert Newell, solicitor (for himself, Muriniti, and L C Muriniti & Associates) Solicitors: Gilchrist Connell (for Davies) L C Muriniti & Associates (for itself, Muriniti, and Newell)
File…