Elgin and Elgin (Costs) - [2015] FamCAFC 228

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN (COSTS)

[2015] FamCAFC 228

FAMILY LAW – APPEAL – COSTS – Where the Full Court allowed in part the appeal against property settlement orders and found that the parties should equally share certain taxation liabilities – Where orders were made for the parties to file written submissions on the question of costs – Where the respondent made an offer of settlement on the basis that the parties would equally share certain taxation liabilities – Whether the offer of settlement was the same as the result achieved on appeal – Appellant ordered to pay the respondent’s costs of the appeal from the date the offer of settlement was made.

FAMILY LAW – APPEAL – COSTS – Where the Full Court dismissed the appellant’s application for leave to appeal from the refusal of the trial judge to grant an adjournment of the trial – Where the appellant was wholly unsuccessful in the adjournment appeal – Appellant ordered to pay respondent’s costs of and incidental to the adjournment appeal.

Family Law Act 1975 (Cth): ss 117, 117(1), (2), (2A)(a)
Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth): r 19.50

APPELLANT:

Mr Elgin

RESPONDENT:

Ms Elgin

FILE NUMBER:

BRC

2909

2010

APPEAL NUMBERS:

2014

DATE DELIVERED:

8 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

May, Thackray & Ryan JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 January 2014

LOWER COURT MNC:

[2014] FamCA 10
[2012] FamCA 1158

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Williams

SOLICITOR FOR THE APPELLANT:

Hartley & Healy

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

Orders

The appellant pay the respondent’s costs of and incidental to Appeal NA 24 of 2014 as agreed, and in default of agreement, as assessed.
The appellant pay the respondent’s costs of and incidental to Appeal NA 6 of 2014 as and from 3 June 2014, as agreed, and in default of agreement, as assessed.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that in relation to Appeals NA 6 of 2014 and NA 24 of 2014 it was reasonable for each of the parties to engage senior counsel and junior counsel to appear.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elgin & Elgin (Costs) 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 BRISBANE

Appeal Numbers: NA 6 of 2014 & NA 24 of 2014
File Number: BRC 2909 of 2010

Mr Elgin

Appellant

And

Ms Elgin

Respondent

REASONS FOR JUDGMENT

May J

I have the benefit of reading the reasons for judgment of Thackray and Ryan JJ in draft.
I agree with them that the appellant should pay the costs of the…

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 Elgin and Elgin (Costs)

Details

AGLC: Elgin and Elgin (Costs) [2015] FamCAFC 228
Case: [2015] FamCAFC 228
Decision Date: 8 December 2015

CaseChat Overview and Summary

The appeal involved the parties Elgin, with the dispute centred around property settlement orders and associated taxation liabilities. The Full Court of the Family Court of Australia found that the taxation liabilities should be shared equally by the parties. Following this, the court ordered both parties to file written submissions regarding the allocation of costs. The respondent proposed a settlement offer, which mirrored the result achieved on appeal. The appellant was required to pay the respondent's costs of the appeal from the date the offer of settlement was made. Additionally, the Full Court dismissed the appellant's application for leave to appeal the trial judge's refusal to grant an adjournment of the trial. As the appellant was wholly unsuccessful in this aspect of the appeal, they were ordered to pay the respondent's costs of and incidental to the adjournment appeal.

The legal issues before the court included determining the appropriate allocation of costs in the context of a partial success on appeal and the consequences of a wholly unsuccessful appeal. The court had to consider whether the respondent's offer of settlement was substantially the same as the outcome achieved on appeal and the implications for costs. The court also needed to address the costs associated with the unsuccessful application for leave to appeal the refusal of an adjournment. The primary focus was on applying the principles of costs in family law appeals, particularly when the outcome on appeal aligns with a prior offer of settlement.

The Full Court held that since the respondent's offer of settlement was essentially the same as the result achieved on appeal, the appellant should bear the costs from the date of the offer. This decision was based on the principle that where an offer of settlement is substantially the same as the outcome on appeal, the party who made the offer should not bear the costs from the date of the offer. In relation to the unsuccessful adjournment appeal, the court ordered the appellant to pay the respondent's costs as they were entirely unsuccessful in that aspect of the proceedings. The court also certified that it was reasonable for both parties to engage senior and junior counsel in these appeals.

Orders

Orders of the court

The appellant pay the respondent’s costs of and incidental to Appeal NA 24 of 2014 as agreed, and in default of agreement, as assessed.

The appellant pay the respondent’s costs of and incidental to Appeal NA 6 of 2014 as and from 3 June 2014, as agreed, and in default of agreement, as assessed.

Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that in relation to Appeals NA 6 of 2014 and NA 24 of 2014 it was reasonable for each of the parties to engage senior counsel and junior counsel to appear.

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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