Delwyn and Delwyn - [2016] FamCA 879

FAMILY COURT OF AUSTRALIA

DELWYN & DELWYN

[2016] FamCA 879

FAMILY LAW – COSTS – Application for indemnity costs in respect of the wife’s discontinued application to set aside consent orders as to property under s79A – Where discussion of general principles – Where there are justifying circumstances for a costs order to be made – Whether there are grounds for awarding indemnity costs – Costs order made on indemnity basis.

Family Law Act 1975 (Cth) ss 79A, 117, (2) & (2A),

Family Law Rules 2004 (Cth) rr 19.18

Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
D & D (Costs) (No. 2) [2010] FamCAFC 64
Fennessy & Gregorian [2009] FamCAFC 44

Hawkins & Roe [2012] FamCAFC 77

Joyce & Fante [2013] FamCAFC 141

Limousin & Limousin [2007] FamCAFC 1178

Penfold v Penfold (1980) 144 CLR 311

Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Ms Delwyn

RESPONDENT:

Mr Delwyn

FILE NUMBER:

PAC

5121

2015

DATE DELIVERED:

14 October 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 June 2016

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

Ms Delwyn

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That the wife pay the husband’s costs of and incidental to the Application filed by the wife on 21 October 2015 on an indemnity basis as agreed within one (1) month from this date or otherwise as assessed.

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 Delwyn & Delwyn 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5121 of 2015

Ms Delwyn

Applicant

And

Mr Delwyn

Respondent

REASONS FOR JUDGMENT

The respondent husband applies for an order for costs against the applicant wife.
On 21 October 2015 the wife filed an application seeking to set aside final property orders made by this Court on 2 May 2014 pursuant to the provisions of section 79A of the Family Law Act 1975 (Cth) (“the Act).
On 14 January 2016 the husband filed a Response seeking a dismissal of the wife’s application.
The application was listed before a registrar for a case assessment conference on 18 January 2016 and on that date adjourned for further directions to 5 April 2016. On 5 April 2016 the matter was adjourned for further directions to 3 May 2016 on which date directions were made for the parties to file affidavit material to be relied upon and the matter was adjourned to 14 June 2016…

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 Delwyn and Delwyn

Details

AGLC: Delwyn and Delwyn [2016] FamCA 879
Case: [2016] FamCA 879
Decision Date: 14 October 2016

CaseChat Overview and Summary

In *Delwyn and Delwyn*, Foster J of the Family Court of Australia considered an application by the wife concerning costs. The specific nature of the dispute leading to this costs application is not detailed in the provided text, beyond the wife having filed an application on 21 October 2015.

The central legal issue before the court was the basis upon which the wife should pay the husband's costs. Specifically, the court was required to determine whether the costs should be awarded on a standard basis or on an indemnity basis.

Foster J ordered that the wife pay the husband’s costs of and incidental to the application filed by the wife on 21 October 2015 on an indemnity basis. This order was to be agreed upon within one month of the date of the judgment, or otherwise assessed by the court.

Orders

Orders of the court

That the wife pay the husband’s costs of and incidental to the Application filed by the wife on 21 October 2015 on an indemnity basis as agreed within one (1) month from this date or otherwise as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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