Catchwords: FAMILY LAW – Costs – application for costs by written submissions to Chambers – whether costs should be awarded on an indemnity basis or party/party.
Weir & Weir [1993] FLC 92-338 Black & Kellner [1992] FLC 92-287 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Prantage & Prantage[2013] FamCAFC 105 Colgate-Palmolive & Cussons Pty Ltd (1993) 46 FCR 225 Davida & Davida (Costs)[2011] FamCAFC 61 Browne & Green (2002) FLC 93-115 Hamlin v University of Queensland (No.3) [2013] FCCA 1129 Hitch & Hitch [2012] Fam CAFC 124 Penfold and Penfold (1980) 144 CLR I & I (No.2) (1995) FLC 92-625
Applicant:
MS EAKINS
Respondent:
MR EAKINS
File Number:
PAC 2066 of 2012
Judgment of:
Judge Harman
Hearing date:
In Chambers and on written submissions
Delivered at:
Parramatta
Delivered on:
27 September 2013
ORDERS
The Husband shall within 42 days, pay to the Wife her costs as assessed in the sum of $24,891.72.
Otherwise remove all issues from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Eakins & Eakins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA
PAC 2066 of 2012
MS EAKINS
Applicant
And
MR EAKINS
Respondent
REASONS FOR JUDGMENT
The application made to the Court at this time follows upon the conclusion of substantive property adjustment proceedings between the parties.
The parties to the proceedings are the Applicant Wife, Ms Eakins and the Respondent Husband, Mr Eakins.
The property adjustment proceedings were concluded by orders made by me 21 August 2013.
A written judgment was delivered explaining my reasons with respect to the property adjustment orders made by me. It will suffice to record that the net effect of the orders made saw each party retain a parcel of real estate and required:
a)The Husband to pay the Wife a sum of $47,000; and
b)Each party to otherwise retain all property in their respective possession, custody or control.
At Order 22 (the final Order) of the orders made disposing of the property adjustment proceedings was in the following terms:
In the event that either party wishes to pursue an application for costs then:
a)The party wishing to pursue such application shall within 14 days of today’s date, file a minute of order and written submission in support of such orders;
b)The party responding to same shall, within a period of 14 days after service, file and serve written submissions in response; and
c)The Applicant pursuing an order for costs shall be entitled,…
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.
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Details
AGLC
EAKINS & EAKINS [2013] FCCA 1467
Case
[2013] FCCA 1467
Decision Date
CaseChat Overview and Summary
In *Eakins & Eakins*, Harman J of the Federal Circuit and Family Court of Australia was required to determine the final orders in a property settlement dispute between a husband and wife. The primary issue before the court was the allocation of costs incurred by the wife in the proceedings.
The court was tasked with deciding whether the husband should be ordered to pay the wife's costs, and if so, in what amount. This involved considering the conduct of the parties during the litigation and whether any party had acted unreasonably, thereby justifying an order for costs against them.
Harman J ordered the husband to pay the wife's assessed costs in the sum of $24,891.72 within 42 days. This order indicates that the court found grounds to depart from the usual rule that parties bear their own costs, likely due to the husband's conduct during the proceedings. The court also directed that all other issues be removed from the list of cases awaiting hearing, signifying the finality of this decision in relation to the costs aspect of the dispute.
Orders
Orders of the court
1.
The Husband shall within 42 days, pay to the Wife her costs as assessed in the sum of $24,891.72.
2.
Otherwise remove all issues from the list of cases awaiting hearing.