ALI & ALI - [2020] FamCA 625

FAMILY COURT OF AUSTRALIA

ALI & ALI

[2020] FamCA 625

FAMILY LAW – COSTS – Where the wife seeks orders for costs payable by the husband in respect of substantive property proceedings and proceedings concerning a joinder Application filed by the husband’s mother – Where the husband filed a Response in support of the joinder Application – Whether the conduct of parties in respect to the substantive proceedings justifies making of orders for costs – Where the wife was successful in respect of both proceedings – Where the wife has reached agreement with the husband’s mother for payment of her costs in respect of the joinder Application – Whether the husband’s refusal of offer warrants orders for indemnity costs – Court finds an order for costs should be made in respect of substantive proceedings – Court finds that an order for costs should not be made in respect of the joinder Application – Order made for costs against the husband as agreed or assessed on a party/party basis.

Family Law Act 1975 (Cth) s 79(4), 117
Family Law Rules 2004 (Cth) r 19.18

Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432
Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
I Limited & Chester (Costs) [2011] FamCAFC 51
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the marriage of Nemeth and Nemeth (1987) FLC 91-844
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Munday v Bowman (1997) FLC 92-784
Nada & Nettle (Costs) (2014) FLC 93-612
Penfold v Penfold (1980) 144 CLR 311
Somers & Ettridge [2020] FamCAFC 37
Stoian & Fiening (Costs) [2014] FamCA 944
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189

APPLICANT:

Ms Ali

RESPONDENT:

Mr Ali

FILE NUMBER:

SYC

5846

2014

DATE DELIVERED:

10 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

30 March 2020; by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ridley

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms McKinley

SOLICITOR FOR THE RESPONDENT:

Russell Kennedy Aitken Lawyers

Orders

That Mr Ali (“the husband”) pay Ms Ali’s (“the wife”) costs of and incidental to these proceedings, assessed on a party/party basis in respect to the period subsequent to 31 January 2018, other than the costs incurred by the wife in respect to the Application in a Case filed by the husband’s mother, Ms K, on 23 September 2019 and the Amended Application in a Case filed by Ms K on 18 October 2019.
The costs determined in accordance with Order (1) are to be paid within 28 days of being agreed or assessed.

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

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.

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Details

AGLC: ALI & ALI [2020] FamCA 625
Case: [2020] FamCA 625
Decision Date: 10 August 2020

CaseChat Overview and Summary

This decision concerns a costs order made by McClelland DCJ in proceedings between Mr Ali (the husband) and Ms Ali (the wife). The specific dispute leading to this judgment relates to the allocation of legal costs incurred by the parties.

The primary legal issue before the court was to determine the extent to which the husband should be ordered to pay the wife's costs, and to identify any exceptions to such an order. This involved considering the conduct of the parties and the nature of certain applications filed by a third party, Ms K, the husband's mother.

McClelland DCJ ordered that the husband pay the wife's costs of and incidental to the proceedings on a party/party basis, specifically for the period after 31 January 2018. However, this order was subject to an exclusion: the husband was not required to pay the wife's costs associated with two specific applications filed by Ms K on 23 September 2019 and 18 October 2019. The court further directed that the costs, once agreed or assessed, were to be paid within 28 days.

Orders

Orders of the court

That Mr Ali (“the husband”) pay Ms Ali’s (“the wife”) costs of and incidental to these proceedings, assessed on a party/party basis in respect to the period subsequent to 31 January 2018, other than the costs incurred by the wife in respect to the Application in a Case filed by the husband’s mother, Ms K, on 23 September 2019 and the Amended Application in a Case filed by Ms K on 18 October 2019.

The costs determined in accordance with Order (1) are to be paid within 28 days of being agreed or assessed.

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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