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.
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.
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
On 31 August 2007 this Court dismissed the Husband’s appeal against orders for settlement of property made by Carmody J on 11 May…
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 D & D (Costs) (No 2)
Sign in free to access the full text
Details
AGLC
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.