BAGHTI & BAGHTI - [2013] FamCAFC 194

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI

[2013] FamCAFC 194

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks to appeal orders made by Fowler J on 20 September 2013 – where the husband seeks that the hearing of the appeal be vacated and the appeal be consolidated and heard with appeal number EA 118 of 2012 – where the appeal is opposed by the wife – where the wife seeks that the application be dismissed – where there is no utility in the appeal given that the business the subject of the orders made on 20 September 2013 has been sold and the net proceeds of sale have been distributed – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – Where the wife seeks costs on a party/party and indemnity basis – where the appellant neither consents to nor opposes the making of costs on that basis – costs ordered on a party/party and indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 17.02

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

APPELLANT:

Mr Baghti

RESPONDENT:	Ms Baghti
FILE NUMBER:	SYC	2145	of		2009

APPEAL NUMBER:

143

2013

DATE DELIVERED:	12 November 2013
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland,
Ainslie-Wallace & Stevenson JJ

HEARING DATE:

12 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 September 2013

LOWER COURT MNC:

[2013] FamCA 734

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Millist-Spendlove

SOLICITOR FOR THE APPLICANT:

Demir Legal

COUNSEL FOR THE RESPONDENT:

Mr Lawson

SOLICITOR FOR THE RESPONDENT:

SWAAB Attorneys

Orders

Appeal number EA 143 of 2013 be dismissed.
The appellant husband pay the costs of the respondent wife of and incidental to the appeal such costs in default of agreement to be assessed up to and including

4 November 2013 on a party/party basis and thereafter on an indemnity basis

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 143 of 2013
File Number: SYC 2145 of 2009

Mr Baghti

Appellant

And

Ms Baghti

Respondent

EX TEMPORE REASONS FOR JUDGMENT

We have before us the amended notice of appeal filed by the husband on

31 October 2013 appealing against orders made by Justice Fowler on

20 September 2013.
Also before us today is an application in an appeal filed by the husband on

7 November 2013, supported by an affidavit in which the husband seeks that the hearing of the appeal be vacated, and the appeal in effect be consolidated with and heard with appeal number EA 118 of 2012. Appeal number EA 118 of 2012 is an appeal which is currently awaiting listing.
There is a…

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 BAGHTI & BAGHTI

Details

AGLC: BAGHTI & BAGHTI [2013] FamCAFC 194
Case: [2013] FamCAFC 194
Decision Date: 12 November 2013

CaseChat Overview and Summary

In the matter of Baghti & Baghti, the husband sought to appeal against orders made by Fowler J on 20 September 2013. The husband filed an amended notice of appeal and applied to vacate the hearing of the appeal and consolidate it with appeal number EA 118 of 2012. The wife opposed the application, arguing that there was no utility in the appeal as the business subject to the orders had been sold and the net proceeds distributed. The court was required to determine whether the appeal should be dismissed due to its lack of utility and whether the wife was entitled to costs on a party/party and indemnity basis.

The court considered the issue of the appeal's utility and found that there was none, given that the business subject to the orders had been sold and the net proceeds distributed. The court also noted that the husband neither opposed nor consented to the wife's application for costs on a party/party and indemnity basis. The court found that the wife was entitled to costs on the basis she sought.

The appeal was dismissed, and the appellant husband was ordered to pay the costs of the respondent wife of and incidental to the appeal. The costs were to be assessed up to and including 4 November 2013 on a party/party basis and thereafter on an indemnity basis. The court found that there was no utility in the appeal, and the husband had not opposed the wife's application for costs, which was therefore granted.

Orders

Orders of the court

Appeal number EA 143 of 2013 be dismissed.

The appellant husband pay the costs of the respondent wife of and incidental to the appeal such costs in default of agreement to be assessed up to and including

4 November 2013 on a party/party basis and thereafter on an indemnity basis

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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