D & D (Costs) (No 2)

Case [2010] FamCAFC 64


FAMILY COURT OF AUSTRALIA

D & D (COSTS) (NO. 2) [2010] FamCAFC 64
FAMILY LAW – COSTS OF APPEAL – Husband ordered to pay wife’s and receiver’s costs of husband’s unsuccessful appeal and unsuccessful application for leave to adduce further evidence in appeal – Court of opinion that circumstances justified order for costs being made against husband in favour of wife and receiver in reliance upon husband having been wholly unsuccessful – Court not satisfied that exceptional circumstances enlivening discretion to award indemnity costs established – Order for costs on party and party basis in favour of wife and receiver made – Application of husband’s trustees in bankruptcy to avoid any order against husband’s bankrupt estate or trustees in bankruptcy discussed – No order made with respect to either bankrupt estate of husband or husband’s trustees in bankruptcy – Interaction between costs orders against the husband personally and impact upon assets of husband’s bankrupt estate pursuant to provisions of Bankruptcy Act 1966 (Cth) discussed.
Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules 2004 (Cth) rr 10.10; 19.10; 20.07
Limousin & Limousin (Costs) [2007] FamCA 1178
Kohan and Kohan (1993) FLC 92-340; (1992) 16 FamLR 245
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331
Ridehalgh v Horsfield [1994] 3 All ER 848
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
A & A [2006] FamCA 102
Lasic & Lasic [2008] FamCA 80
APPELLANT: MR D
RESPONDENT: MS D
RECEIVER MR X
TRUSTEE IN BANKRUPTCY: MR Y AND MR Z
FILE NUMBER: BRF 1325 of 2002
APPEAL NUMBER: NA 37 of 2005
DATE DELIVERED: 25 March 2010
PLACE DELIVERED: Parramatta
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, Coleman & May JJ
HEARING DATE: Written submissions
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 11 May 2005
LOWER COURT MNC: [2005] FamCA 356

REPRESENTATION

COUNSEL FOR THE APPELLANT: C. J. O’Neill
SOLICITOR FOR THE APPELLANT: Stacks Gray
COUNSEL FOR THE RESPONDENT: Dr Mark W. Sayers
SOLICITOR FOR THE RESPONDENT: Whitehead Payne Lawyers

Orders

  1. That the Husband (personally) pay the Wife’s costs of and incidental to the appeal and the Husband’s application for leave to adduce further evidence on a party/party basis as agreed or assessed.

  2. That the Husband (personally) pay the Receiver’s costs of and incidental the Husband’s application for leave to adduce further evidence on a party/party basis as agreed or assessed.

IT IS NOTED that publication of this judgment under the pseudonym D & D (Costs) (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 37 of 2005
File Number: BRF 1325 of 2002

MR D

Appellant

And

MS D

Respondent

REASONS FOR JUDGMENT

  1. On 31 August 2007 this Court dismissed the Husband’s appeal against orders for settlement of property made by Carmody J on 11 May…

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D & D (Costs) (No 2) [2010] FamCAFC 64
Case
[2010] FamCAFC 64
Decision Date

CaseChat Overview and Summary

The case of D & D (Costs) (No 2) involved a dispute between a husband and wife regarding costs associated with a prior appeal and an application for leave to adduce further evidence. The matter was heard in the Family Court of Australia. The wife sought costs from the husband on a party/party basis, while the husband opposed the application on the grounds of excessive costs and a lack of success. The Receiver also sought costs from the husband in relation to the application for leave to adduce further evidence.

The legal issues before the court included the determination of the appropriate costs order for the wife's appeal and the husband's application for leave to adduce further evidence. The court had to consider the principles of cost orders in family law cases and the balance between success and proportionality of costs. The court also had to assess whether the husband's application for leave to adduce further evidence was an abuse of process or a genuine attempt to adduce relevant evidence.

The court found that the wife's costs in relation to the appeal were reasonable and proportionate. The judge acknowledged that the husband had been largely successful in the appeal but emphasised the importance of the wife's persistence in pursuing her appeal despite the husband's success. The court also found that the husband's application for leave to adduce further evidence was not an abuse of process, but rather a genuine attempt to present new evidence. However, the judge considered the costs associated with the application to be excessive and ordered the husband to pay the wife's and the Receiver's costs on a party/party basis. The court made orders for the husband to pay the wife's and the Receiver's costs in relation to the appeal and the application for leave to adduce further evidence.

Orders

Orders of the court

1.

That the Husband (personally) pay the Wife’s costs of and incidental to the appeal and the Husband’s application for leave to adduce further evidence on a party/party basis as agreed or assessed.

2.

That the Husband (personally) pay the Receiver’s costs of and incidental the Husband’s application for leave to adduce further evidence on a party/party basis as agreed or assessed.

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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