Eade & Horne - [2021] FedCFamC1A 12

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Eade & Horne [2021] FedCFamC1A 12

Appeal from: Horne & Eade [2021] FCCA 432

Appeal number(s): NOA 13 of 2021

File number(s): ROC 476 of 2019

Judgment of: AUSTIN J

Date of judgment: 17 September 2021

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Discontinued appeal – Where the applicant was the respondent in the appeal and seeks an order for the costs thrown away on an indemnity or alternatively ordinary basis – Where the appeal was not “wholly unsuccessful” under s 117(2A)(e) Family Law Act 1975 (Cth) because it was not heard and determined on its merits – Where there were no grounds upon which the applicant’s claim for indemnity costs could reasonably be maintained – Where the applicant was put to legal expense over the five months during which the appeal was pending – Application granted – Applicant’s party/party costs fixed in the sum of $1,500.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 117, 117(2A)(e)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.34, 12.08, 12.17(1)(a), 13.42

Cases cited: Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108

Number of paragraphs: 16

Date of hearing: 17 September 2021

Place: Brisbane (via video link),

Counsel for the Applicant: Mr Cameron

Solicitor for the Applicant: CQ Legal

Solicitor for the Respondent: Swanwick Murray Roche Lawyers
ORDERS

NOA 13 of 2021
ROC 476 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS HORNE

Applicant

AND:
MR EADE

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

17 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The respondent shall pay the applicant’s costs of and incidental to discontinued Appeal NOA 13 of 2021, fixed in the sum of $1,500.
2.Otherwise, the Amended Application in an Appeal filed on 17 September 2021 and the Response to an Application in an Appeal filed on 16 September 2021 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eade & Horne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:

On 17 February 2021, a judge of the Federal Circuit Court of Australia (as it was then known) made orders as between the applicant and the respondent concerning their property interests under Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
By way of a Notice of Appeal filed on 17 March 2021, the respondent appealed…

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 Eade & Horne

Details

AGLC: Eade & Horne [2021] FedCFamC1A 12
Case: [2021] FedCFamC1A 12
Decision Date

CaseChat Overview and Summary

In the matter of Eade & Horne, the respondent sought to appeal against orders made by a judge of the Federal Circuit Court of Australia under Part VIII of the Family Law Act 1975 (Cth). The appeal was ultimately discontinued by the respondent prior to the hearing, prompting the applicant to apply for an order for the costs incurred in defending the appeal. The primary issue before the court was whether the respondent should bear the costs of the appeal and, if so, the appropriate quantum of those costs.

The court found that while the appeal was not "wholly unsuccessful" because it was not heard and determined on its merits, the respondent's voluntary discontinuance caused the applicant to incur costs in preparing to defend the appeal. The court acknowledged that the respondent engaged lawyers to institute and represent him in the appeal and on this application, but there was no indication that the lawyers acted for him pursuant to a grant of legal aid. Additionally, the respondent did not assert that his financial circumstances were such as to impair his capacity to meet a costs order. Therefore, the court found that the ordinary rule under section 117(1) of the Family Law Act 1975 (Cth) should be departed from, and an order for the respondent to pay the applicant's ordinary party/party costs was appropriate.

The court considered the evidence provided by the applicant's solicitor, which estimated the applicant's costs of the appeal at $2,711.45, calculated on an indemnity basis. However, the court noted that the applicant did not quantify her party/party costs. The respondent contended that the applicant was only entitled to party/party costs of $308.64, but he did not provide evidence to support this calculation. The court ultimately determined that the sum of $1,500 was fair, reasonable and proportionate for the applicant's party/party costs.

The court dismissed additional claims made by the applicant for costs incurred in contesting the proceedings still pending before the primary judge and for costs of prosecuting the costs application, finding the latter to be disproportionate to an ordinary claim for party/party scale costs. The court ordered the respondent to pay the applicant's costs of and incidental to the discontinued appeal in the sum of $1,500.

Orders