Bhatt & Acharya (Costs)

Case [2017] FamCAFC 71

FAMILY COURT OF AUSTRALIA

BHATT & ACHARYA (COSTS) [2017] FamCAFC 71
FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks his costs of a discontinued appeal – Where the appeal, having been discontinued, was wholly unsuccessful – Where offers of settlement had been rejected by the respondent – The parties’ conduct of the proceedings – Financial positions of the parties – Respondent ordered to pay the applicant’s costs of the discontinued appeal and the application for costs.
Family Law Act 1975 (Cth) s 117
Lenova & Lenova (Costs) [2011] FamCAFC 141
APPLICANT: Mr Bhatt
RESPONDENT: Ms Acharya
FILE NUMBER: SYC 5732 of 2015
APPEAL NUMBER: EA 62 of 2016
DATE DELIVERED: 22 March 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Thackray, Aldridge & Watts JJ
HEARING DATE: 22 March 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 27 April 2016
LOWER COURT MNC: [2016] FamCA 374

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice and Mr Reeves
SOLICITORS FOR THE APPLICANT: Doolan Wagner Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Avery-Williams
SOLICITORS FOR THE RESPONDENT: Coutts Solicitors & Conveyancers

Orders

  1. The respondent be granted leave to rely upon the Response to an Application in an Appeal and affidavit filed 21 March 2017.

  2. The respondent pay the applicant’s costs of the appeal, including the cost of the application for costs, as agreed or in default of agreement as assessed.

  3. The costs payable pursuant to Order 2 be payable upon finalisation of the substantive proceedings for property settlement and from the wife’s entitlement if any.  

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 Bhatt & Acharya 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 62  of 2016
File Number: SYC 5732 of 2015

Mr Bhatt

Applicant

And

Ms Acharya

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J  

  1. By an Application in an Appeal filed on 14 March 2017 Mr Bhatt (“the applicant”) seeks an order for the payment of his costs of a discontinued appeal.

  2. On 29 April 2016 Ms Acharya (“the respondent”) filed a Notice of Appeal against interim property and spousal maintenance orders made by Loughnan J on 27 April 2016.

  3. The appeal proceeded in the usual course.  The respondent filed and served her Summary of Argument on 29 August 2016 and the applicant filed his Summary of Argument in reply on 5 October 2016.  The appeal was allocated a hearing date of 22 March…

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Bhatt & Acharya (Costs) [2017] FamCAFC 71
Case
[2017] FamCAFC 71
Decision Date

CaseChat Overview and Summary

The case involved Bhatt and Acharya, with the latter appealing against a decision related to the costs of the proceedings. The matter was heard in the Family Court of Australia. Acharya sought leave to rely on certain documents and also appealed the costs order. The court had to determine whether Acharya should be granted leave to rely on the documents in question and whether the costs awarded should be paid from the wife's entitlement.

The primary legal issue was whether the respondent should be allowed to rely on the Response to an Application in an Appeal and the accompanying affidavit filed on 21 March 2017. The court considered the procedural aspects of the application, including the relevance and admissibility of the documents. The secondary issue was the appropriate party responsible for the payment of the costs, including whether the costs should be deducted from the wife's entitlement. The court had to balance the principles of fairness and the statutory provisions governing costs in family law proceedings.

The court found that the respondent should be granted leave to rely on the documents in question. The court held that the documents were relevant and admissible for the purposes of the appeal. Regarding the costs, the court ordered that the respondent pay the applicant's costs of the appeal, including the cost of the application for costs, either as agreed or assessed if an agreement could not be reached. The court ruled that the costs should be payable upon finalisation of the substantive proceedings for property settlement and should be deducted from the wife's entitlement if any. The form of the order was subject to the entry of the order in the court's records.

Orders

Orders of the court

1.

The respondent be granted leave to rely upon the Response to an Application in an Appeal and affidavit filed 21 March 2017.

2.

The respondent pay the applicant’s costs of the appeal, including the cost of the application for costs, as agreed or in default of agreement as assessed.

3.

The costs payable pursuant to Order 2 be payable upon finalisation of the substantive proceedings for property settlement and from the wife’s entitlement if any.

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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