Caffyn and Caffyn and Anor

Case [2018] FamCAFC 259

FAMILY COURT OF AUSTRALIA

CAFFYN & CAFFYN AND ANOR [2018] FamCAFC 259
FAMILY LAW – APPEAL – COSTS – Application for costs of a discontinued appeal – Where the discontinued appeal sought to challenge consent property orders – Financial circumstances of the parties – Conduct of the parties – Whether the discontinued appeal was wholly unsuccessful – Consideration of other relevant matters under s 117(2A)(g) of the Family Law Act 1975 (Cth) – Wife ordered to pay the husband’s costs of the discontinued appeal – Where the costs cannot be quantified – Costs as agreed or assessed on a party/party basis.
Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 22.42
Anderson & Anderson (1982) FLC 91-251; [1982] FamCA 36
Bant v Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Bhatt & Acharya (Costs) [2017] FamCAFC 71
Caffyn & Protz [2018] FamCA 499
Caffyn & Protz Group (No. 2) [2018] FamCAFC 199
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Parke & the Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8
Tsay & Lou (No. 2) [2018] FamCAFC 245
APPLICANT: Mr Caffyn
FIRST RESPONDENT: Ms Caffyn
SECOND RESPONDENT: Mr Protz as liquidator of B Pty Ltd (in liq)
FILE NUMBER: PAC 3892 of 2015
APPEAL NUMBER: EA 72 of 2018
DATE DELIVERED: 19 December 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge, Austin & McClelland JJ
HEARING DATE: 27 November 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT ORDERS MADE: 26 April 2018

REPRESENTATION

THE APPLICANT: In person
THE FIRST RESPONDENT: In person
THE SECOND RESPONDENT: Did not participate

Orders

  1. The wife pay the husband’s costs of the discontinued appeal EA 72 of 2018, other than those which were the subject of a costs order made on 23 October 2018 or those relating to this application, such costs to be paid within 28 days of those costs being agreed or assessed on a party/party basis. 

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 Caffyn & Caffyn and Anor 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 72 of 2018
File Number: PAC 3892 of 2015

Mr…

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Caffyn and Caffyn and Anor [2018] FamCAFC 259
Case
[2018] FamCAFC 259
Decision Date

CaseChat Overview and Summary

Caffyn and Caffyn and Anor involved a dispute between the husband and wife regarding costs incurred in a discontinued appeal. The wife had previously discontinued an appeal, EA 72 of 2018, and the court was required to determine the costs associated with this action. The primary legal issue was whether the wife should be ordered to pay the husband's costs of the discontinued appeal, and if so, in what amount and under what conditions. The court had to consider the circumstances of the discontinued appeal and the costs incurred by the husband, excluding those already subject to a previous costs order or relating to this specific application.

The court found that the wife should be responsible for the husband's costs of the discontinued appeal, excluding those specified in the previous costs order or those pertaining to the current application. The reasoning was based on the wife's decision to discontinue the appeal, which led to the husband incurring costs. The court considered it appropriate to order the wife to pay these costs to mitigate the financial impact on the husband. The order specified that the costs were to be paid within 28 days of being agreed upon or assessed on a party/party basis.

The final orders required the wife to pay the husband's costs of the discontinued appeal, excluding those already subject to a previous costs order or those relating to this application. The payment was to be made within 28 days of the costs being agreed upon or assessed. The form of the order was subject to entry in the court's records. This decision provided clarity on the financial responsibilities arising from the discontinued appeal and ensured that the husband's costs were appropriately addressed.

Orders

Orders of the court

1.

The wife pay the husband’s costs of the discontinued appeal EA 72 of 2018, other than those which were the subject of a costs order made on 23 October 2018 or those relating to this application, such costs to be paid within 28 days of those costs being agreed or assessed on a party/party basis.

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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