Bant and Clayton (Costs) (No 2) - [2016] FamCAFC 66

FAMILY COURT OF AUSTRALIA

BANT & CLAYTON (COSTS) (NO. 2)

[2016] FamCAFC 66

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where there was an adequate explanation for the father’s failure to file a Notice of Appeal within time – Where the father’s grounds of appeal were not devoid of merit – Where there is no justification for either party to be awarded costs on the basis of the conduct of the other of them – Where the mother was justified in opposing the application – Where the father was seeking an indulgence from the court – Where the financial circumstances of the parties do not justify an order for costs in favour of either of them – Each party to bear their own costs

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where it is apparent that the father could not have incurred any costs as a result of the mother’s discontinued application for an adjournment –Where it cannot be said that the mother’s discontinued application was wholly unsuccessful – No order for costs.

FAMILY LAW – APPEAL – COSTS – Where the father’s principal or primary grounds were not successful – Where success in two grounds cannot translate into an entitlement for all of the father’s costs to be paid – Where conduct justifying an order of costs has to be conduct in the appeal – Where the parties’ respective financial circumstances neither prevents nor justifies an order for costs in favour of either party – Where the father should receive 20 per cent of his costs and the mother should receive 80 per cent of her costs – Where the mother seeks her costs on an indemnity basis – Where the mother has not established any basis for indemnity costs to be ordered – Where the mother’s claim for costs on an indemnity basis is completely unfounded – Where costs certificates should ordered in relation to the discrete rehearing.

Family Law Act 1975 (Cth) – s 117
Federal Proceedings (Costs) Act 1981 (Cth) – s 8
Family Law Rules 2004 (Cth) – rr 19.08(3), 22.03 and 22.53(2)(b)

D & D (Costs) (No 2) (2010) FLC 93-435
Madin & Palis(Costs) [2016] FamCAFC 25

APPELLANT:

Mr Bant

RESPONDENT:

Ms Clayton

FILE NUMBER:

LEC

310

2013

APPEAL NUMBER:

2014

DATE DELIVERED::

3 May 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Tree JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 November 2013

LOWER COURT MNC:

[2013] FamCA 898

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC with Mr Williams

SOLICITOR FOR THE APPELLANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC with Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

GJ Legal Solicitors

Orders

Each party bear their own costs in relation to the appellant father’s application in an appeal filed on 7 March 2014 seeking an extension of time to file his Notice…

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

Case: [2016] FamCAFC 66
Decision Date: 3 May 2016

CaseChat Overview and Summary

In the case of Bant and Clayton, the appeal involved a dispute over costs between the parties, Bant (the appellant) and Clayton (the respondent). The initial matter pertained to family law, with Bant filing an application for an extension of time to file his Notice of Appeal on 7 March 2014, and Clayton subsequently filing an appeal on 3 October 2014, which she later discontinued. The court had to determine the appropriate allocation of costs between the parties for these proceedings.

The legal issues before the court included whether Bant was justified in his application for an extension of time, the merits of Clayton's appeal and its discontinuance, and the allocation of costs based on the conduct of the parties and their financial circumstances. The court needed to consider whether either party was entitled to costs due to the other's conduct, whether Clayton was justified in opposing Bant's application, and whether the financial circumstances of either party warranted an order for costs in their favour.

The court found that there was an adequate explanation for Bant's failure to file his Notice of Appeal within the required time, and his grounds of appeal were not devoid of merit. However, the court concluded that there was no justification for either party to be awarded costs based on the other's conduct. Clayton was justified in opposing Bant's application, and while Bant was seeking an indulgence from the court, his financial circumstances did not warrant an order for costs in his favour. Similarly, Clayton's financial circumstances did not justify an order for costs in her favour. Therefore, the court ordered each party to bear their own costs in relation to Bant's application for an extension of time, and there was no order as to the costs of Clayton's appeal or its discontinuance. The court also ordered Bant to pay 20% of Clayton's costs of the appeal, and Clayton to pay 80% of Bant's costs, with costs to be assessed on a party/party basis if not agreed upon. Finally, the court ordered that certificates be granted pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 in relation to the discrete rehearing.

Orders

Orders of the court

Each party bear their own costs in relation to the appellant father’s application in an appeal filed on 7 March 2014 seeking an extension of time to file his Notice of Appeal.

There be no order as to the costs of the respondent mother’s application in an appeal filed on 3 October 2014 and/or the discontinuance thereof.

The respondent mother pay to the appellant father 20 per cent of his costs of and incidental to the appeal, such costs to be assessed in default of agreement on a party/party basis.

The appellant father pay to the respondent mother 80 per cent of her costs of and incidental to the appeal, such costs to be assessed in default of agreement on a party/party basis.

Each party be granted a certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing confined by the terms of order (5) made in these proceedings on 25 November 2015.

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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