Gaspaldi and Gaspaldi - [2007] FamCA 342

FAMILY COURT OF AUSTRALIA

GASPALDI & GASPALDI

[2007] FamCA 342

FAMILY LAW - COSTS – Offer of Settlement made by the wife on 1 July 2004 which provided her with approximately the same amount as received in the final division of property in November 2006 – Interaction between s 117(2A)(f) and s 117C - Husband to pay wife’s costs of proceedings since 1 July 2004

Family Law Act 1975

Brown v Green (2002) FLC ¶93-115

APPLICANT:

MR GASPALDI

RESPONDENT:

MRS GASPALDI

FILE NUMBER:

CAF 80 of 2004

DATE DELIVERED:

5 March 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

5 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gill

SOLICITOR FOR THE APPLICANT:

Dobinson Davey Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Gesini of Farrar, Gesini and Dunn

Orders

The husband will pay the wife’s costs of and incidental to the property proceedings between the parties as and from 1 July 2004 to be agreed or taxed.
The application about stay of the payment of matters under the property orders is adjourned to 10 am on 22 March 2007. I give leave to make an oral application in relation to a stay in respect of the costs order which is also adjourned to 22 March 2007 at 10 am.
Any additional material on which the husband seeks to rely in his application for a stay will be filed on or before noon on 15 March 2007.
It is noted that the wife in response may not be able to provide significant notice to the husband of any material in reply to that material filed by him by 15 March 2007 as aforesaid.
I reserve the costs of today.

IT IS NOTED IN CONNEXION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Gaspaldi v Gaspaldi.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 80 of 2004

MR GASPALDI

Applicant

And

MRS GASPALDI

Respondent

REASONS FOR JUDGMENT

In relation to the question of costs, the application before me is that of the wife, who, along with the husband, is the beneficiary of orders made by me on 29 November 2006. As a consequence of those orders, the husband was ordered to pay to her the sum of $350,000. In this regard the wife’s application in relation to costs seeks to overcome the primary prescription set out in s 117 of the Family Law Act 1975 (the ‘Act’) that each party will bear his or her own costs. It is suggested that I should make an order under s 117(2A) because of one particular matter, that is, and I quote:
(f) whether either party to the proceedings has made an offer in writing to the other party in the proceedings to settle the proceedings and the terms of any such offer.
It was asserted during the course of the wife’s application that she had made an offer of settlement in these…

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 Gaspaldi and Gaspaldi

Details

AGLC: Gaspaldi and Gaspaldi [2007] FamCA 342
Case: [2007] FamCA 342
Decision Date: 5 March 2007

CaseChat Overview and Summary

In *Gaspaldi and Gaspaldi*, heard by Faulks DCJ, the dispute concerned property proceedings between a husband and wife. The specific nature of the property dispute is not detailed, but the judgment addresses costs and an application for a stay of payment of matters under property orders.

The court was required to determine the wife's entitlement to costs of and incidental to the property proceedings from a specified date, and to consider an application by the husband for a stay of payment of matters under the property orders. The court also had to address an oral application for a stay in respect of the costs order.

Faulks DCJ ordered that the husband pay the wife’s costs of and incidental to the property proceedings as from 1 July 2004, to be agreed or taxed. The application for a stay of payment of matters under the property orders was adjourned to 22 March 2007, with leave granted for an oral application regarding a stay of the costs order to be made at the same time. The husband was directed to file any additional material he intended to rely upon for his stay application by noon on 15 March 2007.

Orders

Orders of the court

The husband will pay the wife’s costs of and incidental to the property proceedings between the parties as and from 1 July 2004 to be agreed or taxed.

The application about stay of the payment of matters under the property orders is adjourned to 10 am on 22 March 2007. I give leave to make an oral application in relation to a stay in respect of the costs order which is also adjourned to 22 March 2007 at 10 am.

Any additional material on which the husband seeks to rely in his application for a stay will be filed on or before noon on 15 March 2007.

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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