Caffyn & Protz Group & Anor (No 2) - [2018] FamCAFC 199

FAMILY COURT OF AUSTRALIA

CAFFYN & PROTZ GROUP AND ANOR (NO. 2)

[2018] FamCAFC 199

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for costs by the second respondent against the applicant on an indemnity basis – Agreement as to costs previously reached between applicant and first respondent – Where the applicant has been wholly unsuccessful – No submissions made by the second respondent as to how costs should be calculated – Where the circumstances do not justify costs on an indemnity basis – Second respondents application for costs granted in the same amount as between the applicant and the first respondent.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive Company & Another v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Caffyn & Protz Group and Anor [2018] FamCAFC 147

APPELLANT:

Ms Caffyn

RESPONDENT:

Protz Group Pty Ltd & B Pty Ltd (in liquidation)

SECOND RESPONDENT:

Mr Caffyn

FILE NUMBER:

PAC

3892

2015

FIRST APPEAL NUMBER:

2018

SECOND APPEAL NUMBER:

2018

DATE DELIVERED:

23 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

17 July 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Not applicable

LOWER COURT MNC:

Not applicable

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

Mr O’Neil

COUNSEL FOR THE RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE RESPONDENT:

Lewarne & Goldsmith

Orders

The applicant wife pay the costs of the second respondent in relation to the applications in an appeal fixed in the sum $5,000.

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 & Protz Group and Anor (No. 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 72 and 82 of 2018
File Number: PAC 3892 of 2015

Ms Caffyn

Appellant

and

Protz Group Pty Ltd & B Pty Ltd (in liquidation)

First Respondent

and

Mr Caffyn

Second Respondent

REASONS FOR JUDGMENT

On 9 August 2018 two applications in an appeal filed by Ms Caffyn (“the wife”) were dismissed. The applications sought to extend time in which to appeal orders made by Rees J on 23 April 2018 and that an extant appeal against the orders of Rees J made on 26 April 2018 be expedited. The reasons for decision and the orders are to be found in Caffyn & Protz Group and Anor [2018] FamCAFC 147.
Both respondents sought orders…

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.

Continue reading Caffyn & Protz Group & Anor (No 2)

Details

AGLC: Caffyn & Protz Group & Anor (No 2) [2018] FamCAFC 199
Case: [2018] FamCAFC 199
Decision Date: 23 October 2018

CaseChat Overview and Summary

In the case of Caffyn & Protz Group & Anor (No 2), the Family Court was presented with a dispute involving an application for costs by the second respondent against the applicant, who was the wife. The case involved an appeal related to family law issues. The primary issue before the court was whether the second respondent was entitled to costs on an indemnity basis from the applicant, despite an existing agreement on costs between the applicant and the first respondent.

The court needed to decide whether the circumstances justified awarding costs to the second respondent on an indemnity basis, particularly given that the applicant had been wholly unsuccessful in her appeal. The second respondent did not provide any submissions on how the costs should be calculated, which presented a challenge for the court. The court assessed the need for indemnity costs based on the applicant's failure in the appeal and the absence of specific submissions from the second respondent.

After considering the application, the court ruled that the second respondent's application for costs should be granted, but not on an indemnity basis. Instead, the court ordered the applicant to pay the second respondent's costs in relation to the applications in an appeal, fixed at $5,000. This amount was consistent with the costs agreed upon between the applicant and the first respondent. The form of the order was noted to be subject to formal entry in the Court’s records.

Orders

Orders of the court

The applicant wife pay the costs of the second respondent in relation to the applications in an appeal fixed in the sum $5,000.

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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