Bailey and Bailey (No 3) - [2018] FamCA 857

FAMILY COURT OF AUSTRALIA

BAILEY & BAILEY (NO 3)

[2018] FamCA 857

FAMILY LAW – COSTS – Application by husband seeking an order for costs on a party/party basis – wife did not engage in the settlement process and rejected an offer which would have left her in a better financial position had it have been accepted – Orders made that the wife pay a proportion of the husband’s costs on a party/party basis.

Family Law Act 1975 (Cth) s 117

Cachia v Hanes (1994) 179 CLR 403
Catlin & Catlin [2018] FamCA 235
Lenardi & Lenardi (No. 2) [2011] FamCA 604

APPLICANT:

Mr Bailey

RESPONDENT:

Ms Bailey

FILE NUMBER:

HBC

958

2016

DATE DELIVERED:

24 October 2018

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart - Chambers

JUDGMENT OF:

Benjamin J

HEARING DATE:

7 September 2018 by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Blissenden Lawyers

SOLICITOR FOR THE APPLICANT:

Mr R Blissenden

COUNSEL FOR THE RESPONDENT:

Dobson Mitchell & Allport

SOLICITOR FOR THE RESPONDENT:

Mr M Trezise

Orders

The wife pay to the husband his partial legal costs in the sum of $30,000.
Such costs to be paid as follows:-
(a) the first instalment of $10,000 on or before 1 November 2019;
(b) the second instalment of $10,000 on or before 1 November 2020; and
(c) the third and final instalment of $10,000 on or before 1 November 2021.
All extant applications are dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Bailey & Bailey (No. 3) 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 HOBART

FILE NUMBER: HBC 958 of 2016

Mr Bailey

Applicant

And

Ms Bailey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Bailey (‘the husband’) and Ms Bailey (‘the wife’) were engaged in property proceedings in this Court. Those proceedings were heard in late January 2018 and reasons were published in May 2018.
It was a complex property matter involving consideration of pastoral properties upon which the husband conducted his pastoral business. These properties are held in a trust.
After final orders were made the husband filed an application seeking costs in relation to the substantive property application filed by him and this costs application. That application was opposed.
Shortly after that application was filed the wife caused a response to be filed opposing any costs order. Directions were made in the context of a different matter…

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 Bailey and Bailey (No 3)

Details

AGLC: Bailey and Bailey (No 3) [2018] FamCA 857
Case: [2018] FamCA 857
Decision Date: 24 October 2018

CaseChat Overview and Summary

In *Bailey and Bailey (No 3)*, Benjamin J of the Family Court of Australia considered an application for costs following proceedings between the wife and the husband. The specific nature of the dispute leading to this costs application is not detailed in the provided text, but it is clear that the court was tasked with determining the appropriate orders regarding legal costs.

The primary legal issue before the court was the quantum and terms of payment of the husband's partial legal costs. The court was also required to consider whether it was reasonable to engage counsel to attend the proceedings, as this would impact the scope of recoverable costs. Furthermore, the court had to determine the fate of extant applications made by the parties.

Benjamin J ordered that the wife pay to the husband his partial legal costs in the sum of $30,000. These costs were to be paid in three equal instalments of $10,000, with the first due on 1 November 2019, the second on 1 November 2020, and the final instalment on 1 November 2021. The court also certified that, pursuant to Rule 19.50 of the *Family Law Rules 2004* (Cth), it was reasonable to engage counsel to attend. All extant applications before the court were dismissed.

Orders

Orders of the court

The wife pay to the husband his partial legal costs in the sum of $30,000.

Such costs to be paid as follows:-

(a) the first instalment of $10,000 on or before 1 November 2019;

(b) the second instalment of $10,000 on or before 1 November 2020; and

All extant applications are dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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

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.