Barry and Dalrymple (Costs)

[2011] FamCA 365

FAMILY COURT OF AUSTRALIA

BARRY & DALRYMPLE (COSTS) [2011] FamCA 365

FAMILY LAW - COSTS – In circumstances where the evidence on either side was less than entirely satisfactory and where extensive cross-examination of witnesses was not unreasonable in the circumstances of the case, not established that the applicant’s conduct of the trial justifies an order for costs – Not established that the applicant’s claim was necessarily entirely unmeritorious or that the fact that it was wholly unsuccessful has significance given the nature of the claim under s 90RD and the limited jurisprudence in respect of such claims – No order for costs.

Family Law Act 1975 (Cth) s 90RD, s 117(1), s 117(2A)

Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588

APPLICANT: Mr Barry

RESPONDENT: Mr Dalrymple

FILE NUMBER: PAC 2365 of 2010

DATE DELIVERED: 23 May 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Michael Brown

SOLICITOR FOR THE APPLICANT: Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr David Brown SC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

1. That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Barry & Dalrymple (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2365 of 2010

Mr Barry

Applicant

And

Mr Dalrymple

Respondent

REASONS FOR JUDGMENT

Costs

Introduction

1. For reasons which it then provided, on 15 December 2010 the Court dismissed the application of Mr Barry (“the applicant”) seeking a declaration against Mr Dalrymple (“the respondent”) pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”).

2. The respondent, in reliance upon submissions dated 22 December 2010 sought an order for costs of and incidental to the proceedings. The applicant opposed any order for costs being made against him.

3. The principles which govern the application for costs are not in doubt, as the submissions of Senior Counsel for the respondent and those of the applicant’s attorney of 23 December 2010 confirm.

4. The general rule expressed in s 117(1) of the Act is that each party to proceedings bear his or her own costs unless the Court is of the opinion that the circumstances justify the making of a costs order. That issue is informed by reference to the factors referred to in s 117(2A) of the Act.

5. Senior Counsel for the respondent submitted, correctly in the Court’s view, that s 117(2A)(a) “compels the Court to have regard to the financial circumstances of each of the parties to the proceedings”. The respondent relied upon the sum of $36,500 being owed to him by the applicant in relation to the attempted purchase by the applicant of a motorcycle. However, those monies are able to be pursued by the respondent at law. This Court having dismissed the applicant’s claim for relief under…