Goudarzi & Bagheri (Costs) - [2017] FamCAFC 268

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (COSTS)

[2017] FamCAFC 268

FAMILY LAW – APPEAL – COSTS – Application for costs in the appeal – Where the appellant was partially successful – Where an offer of settlement was made – Where the appellant fared no better in the appeal than in the offer of settlement – Application for costs on a party/party basis granted – Amount of costs fixed.

FAMILY LAW – APPEAL – COSTS – Application for costs in the costs application – Application for costs on a party/party basis granted.

FAMILY LAW – APPEAL – COSTS – Application for costs in application to adduce further evidence – Where the evidence could have formed part of the application for costs – Application for costs dismissed.

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Lenova v Lenova (Costs) (2011) FLC 93-467
Parke & the Estate of the Late A Parke (2016) FLC 93-748

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18(1)

APPELLANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

FILE NUMBER:

2016

APPEAL NUMBER:

SYC

7646

2008

DATE DELIVERED:

14 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ryan & Forrest JJ

HEARING DATE:

14 December 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 April 2016

LOWER COURT MNC:

[2016] FamCA 205

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Family Lawyers

THE RESPONDENT:

No appearance

Orders

The appellant wife contribute to the respondent husband’s costs of and incidental to the appeal fixed in the sum of $22,790.34, payable within 28 days.
The appellant wife contribute to the respondent husband’s costs of and incidental to the application for costs fixed in the sum of $2,750, payable within 28 days.
The respondent husband’s application for costs of the application to adduce further evidence be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: SYC 7646 of 2008
File Number: EA 66 of 2016

Ms Goudarzi

Appellant

And

Mr Bagheri

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

This appeal by the wife was heard before us on 8 August 2017. On 15 September 2017 orders were made allowing the appeal in part. Order 3 of those same orders enabled 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 Goudarzi & Bagheri (Costs)

Details

AGLC: Goudarzi & Bagheri (Costs) [2017] FamCAFC 268
Case: [2017] FamCAFC 268
Decision Date: 14 December 2017

CaseChat Overview and Summary

The case of Goudarzi & Bagheri involved an appeal by the wife against the husband in family law matters. The wife sought costs in the appeal, while the husband cross-appealed the costs application. Additionally, the husband applied to adduce further evidence, which was opposed by the wife. The Family Court of Australia was tasked with determining the costs associated with these proceedings.

The court was required to decide whether the wife should contribute to the husband's costs in the appeal and in the costs application. It also needed to determine whether the husband's application for costs of the application to adduce further evidence should be granted. The court considered the principles of party/party costs and the offer of settlement made during the proceedings.

The court granted the husband's application for costs in the appeal and the costs application on a party/party basis, as the wife was partially successful in the appeal but fared no better than the offer of settlement. The amount of costs was fixed at $22,790.34 for the appeal and $2,750 for the costs application. The court dismissed the husband's application for costs of the application to adduce further evidence, as the evidence could have been included in the costs application.

The final orders were that the wife contribute to the husband's costs of and incidental to the appeal and the costs application, with specified amounts payable within 28 days. The husband's application for costs of the application to adduce further evidence was dismissed.

Orders

Orders of the court

The appellant wife contribute to the respondent husband’s costs of and incidental to the appeal fixed in the sum of $22,790.34, payable within 28 days.

The appellant wife contribute to the respondent husband’s costs of and incidental to the application for costs fixed in the sum of $2,750, payable within 28 days.

The respondent husband’s application for costs of the application to adduce further evidence be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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