Crowley and Pappas & Anor (Costs) - [2014] FamCA 477

FAMILY COURT OF AUSTRALIA

CROWLEY & PAPPAS AND ANOR (COSTS)

[2014] FamCA 477

FAMILY LAW – COSTS – Applicant sought an order that the first respondent pay his costs of the proceedings and if so whether costs should be on an indemnity basis – Order that fist respondent pay applicant’s costs up to 15 August 2014 on a party/party basis – Order that the first respondent pay the applicant’s costs from 16 August 2014 on an indemnity basis – Such costs to include the costs of the applicant in respect of the costs application

FAMILY LAW – COSTS – Applicant sought an order that the second respondent pay his costs as and from when the second respondent became involved in the proceedings – Application dismissed

Family Law Act 1975 (Cth) ss 117(2), and 117(2A)

Foots v Southern Cross Mines Management Pty Ltd (2007) 234 CLR 52

APPLICANT:

Mr Crowley

1st RESPONDENT:

Mr Pappas

2nd RESPONDENT:

Mrs Pappas

INTERVENOR:

FILE NUMBER:

TVC

1044

2011

DATE DELIVERED:

4 July 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Keegan

SOLICITOR FOR THE APPLICANT:

Ross Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

No appearance

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT:

Mr O’Kane

SOLICITOR FOR THE 2ND RESPONDENT:

Kevin O’Kane & Co

Orders

Mr Pappas (the first respondent) pay the costs of Mr Crowley (the applicant) of these proceedings.
Such costs to be calculated:-
(a)up to 15 August 2012 on a party/party basis; and
(b)as and from 16 August 2012 on an indemnity basis (to be assessed in accordance with the Family Law Rules but on an hourly rate set out in the costs agreements referred to in the reasons and barrister’s fees referred to in the exhibits referred to in the reasons); and
(c)such costs to include the costs of the applicant in respect of the costs application.
The application that the second respondent pays the costs of the applicant is dismissed.
All outstanding applications in a case are dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: TVC 1044 of 2011

Mr Crowley

Applicant

And

Mr Pappas
First Respondent

And

Mrs Pappas

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Crowley (“the applicant”) and Mr Pappas (“the first respondent”) have been engaged in proceedings in this Court relating to property. Those proceedings were commenced in December 2011.
There have been two substantive parts to the proceedings in the Family Court. The first being a determination by Tree J in October 2013 (following a hearing in June 2013) declaring that the parties were in a de facto…

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.

Keep reading for free

Create a free CaseChat account to read Crowley and Pappas & Anor (Costs) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCA 477
Decision Date: 4 July 2014

CaseChat Overview and Summary

In *Crowley and Pappas & Anor (Costs)*, Benjamin J of the Family Court of Australia considered an application by Mr Crowley (the applicant) for orders that Mr Pappas (the first respondent) and the second respondent pay his costs of the proceedings. The applicant sought costs against the first respondent on a party/party basis and, alternatively, on an indemnity basis. The applicant also sought costs against the second respondent from the time it became involved in the proceedings.

The primary legal issues before the court were whether the first respondent should be ordered to pay the applicant's costs, and if so, whether those costs should be awarded on a party/party or indemnity basis. Additionally, the court was required to determine whether the second respondent should be ordered to pay the applicant's costs.

Benjamin J reasoned that the first respondent should pay the applicant's costs, but with a distinction in the basis of assessment. Costs up to 15 August 2012 were ordered to be paid on a party/party basis. However, from 16 August 2012 onwards, costs were to be paid on an indemnity basis, with the hourly rates to be determined by reference to the costs agreements and barrister's fees exhibited to the proceedings. This approach reflected a shift in the court's view of the conduct of the proceedings from that date. The application for costs against the second respondent was dismissed.

Consequently, the court ordered that Mr Pappas pay the applicant's costs of the proceedings, assessed as described above, including the costs of the costs application itself. The application against the second respondent was dismissed, and all outstanding applications in the case were also dismissed. The court certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

Mr Pappas (the first respondent) pay the costs of Mr Crowley (the applicant) of these proceedings.

Such costs to be calculated:-

(a) up to 15 August 2012 on a party/party basis; and

(b) as and from 16 August 2012 on an indemnity basis (to be assessed in accordance with the Family Law Rules but on an hourly rate set out in the costs agreements referred to in the reasons and barrister’s fees referred to in the exhibits referred to in the reasons); and

The application that the second respondent pays the costs of the applicant is dismissed.

All outstanding applications in a case are dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

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.