Bulow & Bulow (No. 2)

Case [2022] FedCFamC1A 25

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

Clayton v Bant (2020) 95 ALJR 34; [2020] HCA 44
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 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…

Continue reading Bulow & Bulow (No. 2)

Sign in free to access the full text

Details
AGLC
Bulow & Bulow (No. 2) [2022] FedCFamC1A 25
Case
[2022] FedCFamC1A 25
Decision Date

CaseChat Overview and Summary

In Bulow & Bulow (No. 2), the Federal Circuit and Family Court of Australia addressed an appeal concerning costs orders from a family law dispute. The matter originated from a property settlement between the parties, which was initially determined in 2017. The original orders included a specific provision for the husband to pay the wife’s costs amounting to $11,889 related to some interlocutory disputes. However, the orders also stipulated that each party was to bear their own costs for the proceedings, except for any transfer costs necessary to implement the orders. The husband subsequently appealed against the property settlement orders, but the appeal was only partially successful, with certain orders being set aside while others, including the interlocutory costs order, remained intact.

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

Both parties were unrepresented in the appeal. The wife resisted the appeal but, for the reasons which follow, it must succeed.Background Property settlement orders were first made between the parties on 22 November 2017. The orders were structured to incorporate, within Order 1(a), an award of costs in favour of the wife against the husband in the total sum of $11,889 which related to some separate interlocutory disputes earlier in the proceedings. Aside from the specific provision for such interlocutory costs, another order was made requiring the parties to otherwise bear their own costs of the proceedings in these terms:3. As and from the making of these orders:…b.The parties each pay their own costs of and incidental to these proceedings SAVE AND EXCEPT the costs of any transfer necessary to give effect to these orders as otherwise provided for herein; The husband appealed against the property settlement orders and the appeal was allowed in January 2019 against some, but not all, of the orders (Bulow & Bulow (2019) FLC 93-885). Orders 1(a) and 2 were set aside in the appeal, but the remaining orders were affirmed. The Full Court expressly noted the order for interlocutory costs was not discharged, despite Order 1(a) being set aside, saying:A.An order that the husband pay the wife's costs in the sum of $11,889 was not the subject of a specific order by Judge Heffernan but rather was incorporated within Paragraph 1 (a)(i) of the orders made on 22 November 2017. The order for costs remains undisturbed by these orders. In December 2017, while that appeal was still pending, the wife filed an application seeking an order against the husband for her costs of and incidental to the entire first-instance proceedings. Her costs application was evidently in direct conflict with Order 3(b) made in November 2017 concerning the overall costs of those proceedings, which order eventually survived the appeal, and therefore had to be and should have been summarily dismissed. However, the impropriety of the wife’s application was not identified, then or since, by anyone other than the husband. The wife’s costs application was successively adjourned to April 2018, November 2018 and February 2019, by which time the result of the appeal was then known. The application was again adjourned until April 2019 to allow for a conciliation conference but, when the property settlement dispute failed to settle, it progressed to trial for a second time in August 2020. In the meantime, the outstanding costs application related to the first trial lay dormant. Orders were made on 15 March 2021 (but amended under the slip rule on 12 April 2021) to determine the property settlement proceedings for a second time. The husband’s appeal from those orders was recently dismissed by the Full Court on 18 February 2022 (Bulow & Bulow [2022] FedCFamC1A 19). Among the orders made at first-instance in March 2021 was this:2.Nunc pro tunc, the husband is to pay the costs of the wife in the amount of ELEVEN THOUSAND, EIGHT HUNDRED AND EIGHTY NINE DOLLARS ($11,889.00) nothing noting that paying of this amount has already been effected by the parties in compliance with orders 1(a)(i) and (ii) of the orders of Judge Heffernan dated 21 November 2017.

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.