Ahmed and Abdou - [2018] FamCA 648

FAMILY COURT OF AUSTRALIA

AHMED & ABDOU

[2018] FamCA 648

FAMILY LAW – COSTS – Where application for costs – Where wife’s application to restrain the husband’s solicitors from further acting was dismissed – Where wife totally unsuccessful – Consideration of applicable principles – Where general rule as to costs displaced – Where wife ordered to pay husband’s costs as agreed or assessed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18, Sch 3

Abdou & Ahmed [2018] FamCA 396
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Ahmed

RESPONDENT:

Ms Abdou

FILE NUMBER:

PAC

5203

2017

DATE DELIVERED:

17 August 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By Written Submission

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Withstand Lawyers
SOLICITOR FOR THE RESPONDENT:	Ross Hill & Associates

Orders

That the wife pay the husband’s costs of and incidental to the application determined by order made on 1 June 2018 and of this costs application such costs to be as agreed within one month from this date or otherwise as assessed.
That such costs be paid by the wife to the husband or as he may otherwise direct in writing within one month from the date of final orders for property adjustment.

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 Ahmed & Abdou 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 PARRAMATTA

FILE NUMBER: PAC 5203 of 2017

Mr Ahmed

Applicant

And

Ms Abdou

Respondent

REASONS FOR JUDGMENT

The application for determination is the husband’s application for costs arising from an order made on 1 June 2018 dismissing the wife’s application that sought an order restraining the husband’s solicitors from continuing to act for him.
These reasons for judgement assume familiarity with reasons for judgement delivered on 1 June 2018 in respect to that application: Abdou & Ahmed [2018] FamCA 396.

Costs

Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which…

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 Ahmed and Abdou

Details

AGLC: Ahmed and Abdou [2018] FamCA 648
Case: [2018] FamCA 648
Decision Date: 17 August 2018

CaseChat Overview and Summary

In *Ahmed and Abdou*, Foster J of the Federal Circuit Court of Australia considered an application for costs following earlier orders made on 1 June 2018 concerning property adjustment. The dispute centred on the wife's liability for the husband's costs associated with both the initial application and a subsequent costs application.

The primary legal issue before the court was the determination of which party should bear the costs of the proceedings. This involved assessing the conduct of the parties and the overall merits of the applications brought before the court.

Foster J ordered that the wife pay the husband's costs of and incidental to the application determined on 1 June 2018, as well as the costs of the current costs application. These costs were to be agreed between the parties within one month, or otherwise assessed. The wife was directed to pay these costs to the husband, or as he might direct in writing, within one month of the final property adjustment orders being made.

Orders

Orders of the court

That the wife pay the husband’s costs of and incidental to the application determined by order made on 1 June 2018 and of this costs application such costs to be as agreed within one month from this date or otherwise as assessed.

That such costs be paid by the wife to the husband or as he may otherwise direct in writing within one month from the date of final orders for property adjustment.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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