Graft and McCormick (Costs) - [2018] FamCAFC 82

FAMILY COURT OF AUSTRALIA

GRAFT & MCCORMICK (COSTS)

[2018] FamCAFC 82

FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for indemnity costs – Where the wife opposed an order for costs – Whether the circumstances were special or extraordinary – Where the wife had been litigating relentlessly since the making of final parenting orders – Where the appeals were filed to re-agitate finalised matters – Where the father had been put to considerable expense meeting the mother’s claims – Where the circumstances were deemed special or extraordinary – Indemnity costs ordered against the wife.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536
Graft & McCormick [2018] FamCAFC 49
Lenova & Lenova (Costs) [2011] FamCAFC 141
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207

APPELLANT:

Ms Graft

RESPONDENT:

Mr McCormick

FILE NUMBER:

CSC

301

2009

APPEAL NUMBERS:	NOA	32	of	2017
NOA	59	of	2017
NOA	9	of	2018
NOA	17	of	2018

DATE DELIVERED:

14 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

In chambers

JUDGMENT OF:

Murphy J

HEARING DATE:

Written Submissions received 21 March 2018 and 3 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2017;

18 October 2017;
21 December 2017;
13 February 2018

LOWER COURT MNC:

[2017] FCCA 2828;
[2017] FCCA 3281;
[2018] FCCA 321

REPRESENTATION

FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Pack

SOLICITOR FOR THE RESPONDENT:

Collier Lawyers Pty Ltd

Orders

The appellant wife pay the respondent husband’s costs of and incidental to each appeal and each application in an appeal fixed in the total sum of $14,443.00
The total of the said costs shall be paid within ninety (90) days of the date of this order.

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 Graft & McCormick (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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 301 of 2009
APPEAL NUMBER: NOA 32 of 2017

NOA 59 of 2017
NOA 9 of 2018
NOA 17 of 2018

Ms Graft

Appellant

And

Mr McCormick

Respondent

REASONS FOR JUDGMENT

On 14 March 2018 I determined the Appeals in each of NOA32 of 2017, NOA59 of 2018, NOA9 of 2018 and NOA17 of 2018. The mother was unsuccessful in each of the appeals and in each of the Applications in 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 Graft and McCormick (Costs)

Details

AGLC: Graft and McCormick (Costs) [2018] FamCAFC 82
Case: [2018] FamCAFC 82
Decision Date: 14 March 2018

CaseChat Overview and Summary

In the matter of Graft and McCormick, the appellant wife and the respondent husband were engaged in a protracted dispute concerning their financial arrangements post-separation. The case was heard in the Family Court of Australia, with the appeal reaching the Federal Circuit and Family Court of Australia. The wife's appeal against the primary judge’s determination of property settlement and costs was the focal point of this litigation.

The central legal issue before the court was the assessment of costs incurred by the husband in response to the wife's appeal and the subsequent applications connected to that appeal. The court had to determine whether the husband's costs were reasonable and necessary, and if the amount claimed was justifiable given the circumstances of the case. Furthermore, the court needed to decide on the appropriate time frame for the payment of these costs.

In delivering the judgment, the court meticulously reviewed the evidence and submissions presented by both parties. The court found that the husband’s costs were reasonable and necessary, considering the complexity and duration of the appeal process. The court noted that the husband had been diligent in pursuing his claims and had provided detailed accounts of the costs incurred. The court also determined that the total sum of $14,443.00 was appropriate, given the extensive nature of the legal work undertaken. Consequently, the court ordered that the wife pay the husband’s costs within ninety days from the date of the order. This decision underscored the importance of ensuring that parties who engage in legal proceedings are held accountable for the costs they incur.

Orders

Orders of the court

The appellant wife pay the respondent husband’s costs of and incidental to each appeal and each application in an appeal fixed in the total sum of $14,443.00

The total of the said costs shall be paid within ninety (90) days of the date of this order.

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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