FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bulow & Bulow (No. 2) [2022] FedCFamC1A 25
Appeal from: Bulow & Bulow (No. 5) [2021] FedCFamC2F 166 Appeal number(s): NAA 57 of 2021 File number(s): ADC 1674 of 2014 Judgment of: AUSTIN J Date of judgment: 24 February 2022 Catchwords: FAMILY LAW – APPEAL – COSTS – Where costs orders were previously made in relation to a trial completed in 2017 – Where the orders required the appellant to pay some interlocutory costs, but otherwise provided for each party to bear their own costs – Where the costs order was duly paid – Where the matter proceeded to trial for a second time after an appeal which did not disturb the prior costs orders – Where the wife filed an application for costs in relation to the first trial – Where the primary judge made a mistake of fact, wrongly believing that a portion of the interlocutory costs was still outstanding and determined the application – Where the husband appeals from that order – Where the appealed order is irreconcilable with the order for costs already paid – Where the appealed order is repugnant to the order that each party shall bear their own costs – Appeal allowed – Re-exercise – Appealed order set aside and the wife’s costs application dismissed – Husband granted a costs certificate in relation to the appeal. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Cases cited: Bulow & Bulow (2019) FLC 93-885; [2019] FamCAFC 3
Bulow & Bulow [2022] FedCFamC1A 19
Number of paragraphs: 27 Date of hearing: 24 February 2022 Place: Newcastle (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 57 of 2021
ADC 1674 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BULOW
Appellant
AND: MS BULOW
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 made on 13 October 2021 is set aside.
3.The Application in a Case filed by the respondent on 18 December 2017 and all Responses filed by the appellant in answer thereto are dismissed.
4.The appellant is granted a costs certificate pursuant to the provisions of s 9 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 the appellant in respect of the disbursements incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record…
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- Bulow & Bulow (No. 2) [2022] FedCFamC1A 25
- Case
- [2022] FedCFamC1A 25
- Decision Date
CaseChat Overview and Summary
The legal issues before the court revolved around the interpretation and enforcement of the costs orders. Specifically, the court had to determine whether the wife's application for costs in relation to the first trial was valid, given that the original orders already provided for the husband to pay certain interlocutory costs and that each party was to bear their own costs otherwise. The wife’s application was considered in light of the prior costs orders and the fact that the husband had already complied with the interlocutory costs order. The court also had to address whether the subsequent costs order made during the second trial was consistent with the original orders and whether it was appropriate for the husband to be ordered to pay additional costs.
The court found that the primary judge had made an error in fact by believing that a portion of the interlocutory costs was still outstanding, leading to the mistaken determination of the wife's costs application. This error rendered the subsequent costs order irreconcilable with the original orders already paid and repugnant to the directive that each party bear their own costs. Consequently, the appeal was allowed, the erroneous order was set aside, and the wife's costs application was dismissed. Additionally, the husband was granted a costs certificate in relation to the appeal, recognising the appropriateness of reimbursing him for the costs incurred in pursuing the appeal.
The final orders of the court were that the appeal was allowed, the mistaken order regarding the wife's costs application was set aside, and the application itself was dismissed. The husband was also granted a costs certificate for the appeal, allowing for potential reimbursement of his legal expenses. This outcome ensured that the original costs orders were upheld and that the husband was not unjustly burdened with additional costs beyond what had already been determined and paid.
Orders
Orders of the court
NAA 57 of 2021
ADC 1674 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR BULOW
Appellant
AND:
MS BULOW
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. Order 1 made on 13 October 2021 is set aside.
3. The Application in a Case filed by the respondent on 18 December 2017 and all Responses filed by the appellant in answer thereto are dismissed.
4. The appellant is granted a costs certificate pursuant to the provisions of s 9 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 the appellant in respect of the disbursements incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Background
Background to the litigation
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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