Byrd and Byrd and Ors - [2013] FamCAFC 35

FAMILY COURT OF AUSTRALIA

BYRD & BYRD AND ORS

[2013] FamCAFC 35

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was successful ─ Where the Court was of the opinion that the circumstances justified an order for costs to be made against the husband in favour of each of the appellants ─ Where the Court was of the opinion that there was not a sufficient evidentiary foundation to conclude that indemnity costs would be appropriate ─ Husband to pay the appellants’ costs of and incidental to the appeal on a party and party basis.

Family Law Act 1975 (Cth) s 117(2A)

APPELLANT

(SECOND RESPONDENT IN EA 53 OF 2012):

Ms Byrd

RESPONDENT

(FIRST RESPONDENT IN EA 53 OF 2012):

Mr Byrd

SECOND RESPONDENT

(APPELLANT IN EA 53 OF 2012):

Mr Y

THIRD RESPONDENT
(APPELLANT IN EA 53 OF 2012):

Ms D

FILE NUMBER:

SYC

767

2009

APPEAL NUMBERS:	EA	51	of	2012
EA	53	of	2012

DATE DELIVERED:

20 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray and Austin JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2012

LOWER COURT MNC:

[2012] FamCA 206

REPRESENTATION

COUNSEL FOR THE APPELLANT

(SECOND RESPONDENT IN EA 53 OF 2012):

Mr Simpson SC

SOLICITOR FOR THE APPELLANT

(SECOND RESPONDENT IN EA 53 OF 2012):

Newnhams Solicitors

COUNSEL FOR THE FIRST RESPONDENT

(FIRST RESPONDENT IN EA 53 OF 2012):

Mr Gould

SOLICITOR FOR THE FIRST

RESPONDENT (FIRST RESPONDENT

IN EA 53 OF 2012):

Gibsons Lawyers

COUNSEL FOR THE SECOND & THIRD RESPONDENT (APPELLANTS IN EA 53 OF 2012):

Mr Aldridge SC

SOLICITOR FOR THE SECOND & THIRD RESPONDENT (APPELLANTS IN EA 53 OF 2012):

Watts McCray

Orders

Mr Byrd pay the costs of Ms Byrd, Mr Y and Ms D of and incidental to the appeal as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Byrd & Byrd and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 51 of 2012 and EA 53 of 2012

File Number: SYC 767 of 2009

Ms Byrd

Appellant (Second Respondent in EA 53 of 2012)

And

Mr Byrd

First Respondent (First Respondent in EA 53 of 2012)

And

Mr Y

Second Respondent (Appellant in EA 53 of 2012)

And

Ms D

Third Respondent (Appellant in EA 53 of 2012)

REASONS FOR JUDGMENT

COSTS

When delivering judgment in the substantive appeal in this matter on 30 October 2012, the Court reserved the costs of the appeal. On 9 November 2012 Mr Y, the first appellant in EA 53 of 2012, and Ms D, the second appellant in EA 53 of 2012 (“the professional advisors”) sought that Mr Byrd, the respondent to the appeal (“the husband”) pay their costs of and…

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: [2013] FamCAFC 35
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an appeal in the case of Byrd and Byrd and Ors, which involved a dispute between Ms Byrd, Mr Byrd, Mr Y, and Ms D. The appeal was primarily about the costs incurred during the appeal process. The key issue the court had to decide was whether the husband, Mr Byrd, should be ordered to pay costs on a party and party basis or on an indemnity basis. The court was required to consider the financial circumstances of the parties and the principles governing indemnity costs awards. The court's reasoning was based on the fact that the appeal was successful for the appellants, and the husband had the financial capacity to pay the costs. However, the court found that there was not enough evidence to justify awarding indemnity costs. The court concluded that the circumstances warranted an order for costs against the husband in favour of each of the appellants on a party and party basis.

The court held that while the appeal was successful, the evidence did not support an order for indemnity costs. The court emphasised that the discretion to award indemnity costs required "exceptional circumstances," which were not demonstrated in this case. The court also noted that the appeal process was conducted competently and expeditiously, and the issue at hand was significant in principle. Therefore, the court made an order that Mr Byrd should pay the costs of Ms Byrd, Mr Y, and Ms D of and incidental to the appeal as agreed or assessed on a party and party basis. This decision reflects the court's view that the husband should bear the costs of the appeal but that the evidence did not support a higher burden of indemnity costs.

Orders