Ebner & Pappas & Anor (Costs) - [2015] FamCAFC 39

FAMILY COURT OF AUSTRALIA

EBNER & PAPPAS AND ANOR (COSTS)

[2015] FamCAFC 39

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appellant’s application was “wholly unsuccessful” ─ Where the first respondent seeks costs on an indemnity basis ─ Where the appellant submits that the first respondent should have applied to the Family Court for enforcement relief ─ Where the appellant hindered the first respondent’s efforts to transfer the property ─ Where the appellant purported to transfer the property to the second respondent without warning ─ Where the appellant submits that there were other cheaper and more effective proceedings available to the first respondent ─ Where the appellant did not accept an offer to compromise ─ Appellant ordered to pay the first respondent’s costs of and incidental to the appeal as agreed or assessed and on an indemnity basis from date of offer.

Family Law Act 1975 (Cth) s 94, s. 106A, s 106B, s 117(1)

Conveyancing Act 1919 (NSW) s 37A

Family Law Rules 2004 (Cth) r 1.07, r 1.12, r 22.53

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Carpenter & Carpenter [2014] FamCAFC 100

Browne & Green (2002) FLC 93-115
Ebner & Pappas and Anor [2014] FamCAFC 230

APPELLANT:

Mr Ebner

FIRST RESPONDENT:	Ms Pappas
SECOND RESPONDENT:	Mr Saran

FILE NUMBER:

Supreme Court of New South
Wales: 2013/…

Family Court of Australia:
SYC 4655 of 2008

APPEAL NUMBER:

102

2014

DATE DELIVERED:

17 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

Written Submissions

LOWER COURT JURISDICTION:

Supreme Court of New South Wales

LOWER COURT JUDGMENT DATE:

12 December 2013
And 17 March 2014

LOWER COURT MNC:

[2013] NSWSC …
[2014] NSWSC …

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ogborne; Bruce & Stewart Lawyers by written submissions

SOLICITOR FOR THE APPELLANT:

Bruce & Stewart Lawyers

COUNSEL FOR THE 1ST RESPONDENT:	Mr Einfeld QC with Ms Christie by written submissions
SOLICITOR FOR THE 1ST RESPONDENT:	ACA Lawyers

SOLICITOR FOR THE 2ND RESPONDENT:

Property Law Solutions (No appearance)

Orders

That the appellant husband, Mr Ebner, pay the respondent wife, Ms Pappas, her costs of and incidental to the Application in an Appeal filed 7 August 2014.
Failing agreement, such costs to be assessed and to be paid on a party/party basis to 19 August 2014 and thereafter on an indemnity basis.
The appellant husband pay the respondent wife’s costs of and incidental to this costs application, filed 19 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ebner & Pappas and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 102 of 2014
File Number: Supreme Court of NSW 2013/…

Mr Ebner

Appellant

And

Ms Pappas

First Respondent

And

Mr Saran

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 27 November 2014 the appellant’s application seeking an…

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 Ebner & Pappas & Anor (Costs)

Details

AGLC: Ebner & Pappas & Anor (Costs) [2015] FamCAFC 39
Case: [2015] FamCAFC 39
Decision Date: 17 March 2015

CaseChat Overview and Summary

The appeal was brought by the husband, Mr Ebner, against an order that he pay the wife, Ms Pappas, costs of a proceeding concerning their property settlement. The matter came before the Family Court of Australia. The wife sought costs of an appeal she had lodged against a property settlement order. The husband opposed the application for costs on the basis that the appeal had been unmeritorious.

The court had to determine the appropriate costs order for the wife’s application and the costs of that application. The court considered the husband’s opposition to the wife’s application for costs and the wife’s response to the opposition. The court had to decide whether the wife’s appeal was meritorious and whether the husband’s opposition was frivolous or vexatious.

The court found that the wife’s appeal had been successful and that the husband’s opposition was without merit. The court held that the husband should pay the wife’s costs of the application and costs of the appeal on a party/party basis until 19 August 2014 and on an indemnity basis thereafter. The court further held that the husband should pay the wife’s costs of the costs application on a party/party basis. The court noted that the husband had not provided any evidence to support his opposition to the wife’s application for costs and that the wife’s appeal had been successful.

Orders

Orders of the court

That the appellant husband, Mr Ebner, pay the respondent wife, Ms Pappas, her costs of and incidental to the Application in an Appeal filed 7 August 2014.

Failing agreement, such costs to be assessed and to be paid on a party/party basis to 19 August 2014 and thereafter on an indemnity basis.

The appellant husband pay the respondent wife’s costs of and incidental to this costs application, filed 19 December 2014.

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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