HAYKAL & KRAWIEC - [2013] FamCAFC 40

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC

[2013] FamCAFC 40

FAMILY LAW ─ APPEAL ─ COSTS JUDGMENT ─ Where the Court rejected the appellant’s adjournment application ─ Where it was open to the trial Judge to make an order of indemnity costs ─ Where having regard to Sheppard J’s judgment in Colgate Palmolive, and to the undisturbed findings of fact of the trial Judge, his Honour was abundantly justified in exercising his discretion to make an order in the terms provided ─ Nothing raised either by reference to his Honour’s judgment or any further evidence, however informally sought to be adduced by the appellant, provided any basis for finding appealable error by reference to the appellant’s asserted impecuniosity ─ Nothing to which the Court was referred provided a basis for possible appellate intervention ─ Appeal against the cost order of 31 August 2012 dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Assessment of costs ─ Where the appellant disputed the quantum of costs sought by the respondent and disputed the capacity to pay ─ Where there is a fund of $5000 which is available ─ Whether the fund should be made available by way of an immediate payment to the respondent or preserved and charged with the respondent’s entitlement if the Court orders that the respondent’s costs be assessed ─ Where to award an immediate payment of costs will do no possible injustice to the appellant but to save him, and the respondent the expense and effort of having a bill assessed, the costs of that exercise potentially being visited upon the appellant ─ Where it is an unusual outcome for the Court to assess costs, but since the costs are of such modest quantum, the cost of having an assessment particularly when nothing raised by the appellant provides any basis for considering that the assessed costs may be inflated or unreasonable would be out of proportion to the amount involved ─ The Court assessed the costs at $5000.

Family Law Act 1975 (Cth) ss 117(2), 118

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPELLANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

FILE NUMBER:

SYC

731

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

19 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace and Ryan JJ

HEARING DATE:

19 March 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2012
31 August 2012

LOWER COURT MNC:

[2012] FamCA 379
[2012] FamCA 748

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr S. Schonell

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

Leave having been granted to the respondent to withdraw paragraph 3 of the Application in an Appeal filed on 15 March 2013, the application is thereby dismissed.

note:

Consistent with the application having been withdrawn, there has been no determination of the merits of the application by this Court.
The Notice of Appeal against the costs order of Murphy J of 31 August…

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.

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Details

Case: [2013] FamCAFC 40
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Haykal, the appellant, appealed against a costs order made by Murphy J on 31 August 2012. This costs order was a result of the parenting proceedings initiated by the appellant against Ms Krawiec, the respondent. The appeal was against the costs order and the costs of that appeal, as well as the costs of the discontinued appeal against Murphy J's decision in the parenting proceedings of 18 May 2012. The appellant argued that he was not prepared or able to proceed with his case before the Court due to his termination of his attorney's services two weeks prior.

The legal issues before the court were whether the appellant's adjournment application should be granted and whether the costs order made by Murphy J was appropriate. The court considered the appellant's assertions of impecuniosity and the appellant's history of non-compliance with directions in relation to the appeal. The court found that the appellant's adjournment application was misconceived and irrelevant to the issues before the court. Furthermore, the court found that Murphy J was justified in making an order for indemnity costs based on the undisputed findings of fact in the parenting proceedings of 18 May 2012.

Regarding the costs of the appeal, the court assessed the costs at $5000. The court found it reasonable to allow Counsel's fee in the sum advised by Counsel, and the party and party costs of Counsel's attorney as recorded in exhibit H approximate $3600. The figure of $5000 sought was thus less than the costs reasonable to be claimed. The court considered it to be in the interests of justice to make an order that the $5000 currently provided as security for costs be the quantum of the respondent's costs of and incidental to the appeals to this Court.

In conclusion, the appeal against the cost order of 31 August 2012 was dismissed. The appellant was ordered to pay the respondent's costs of and incidental to Appeal No. EA 85 of 2012 as assessed by the Court in the sum of $5,000. Payment of such order was to be charged upon and satisfied out of the sum of $5,000 provided by the appellant as security for costs of the appeal pursuant to the orders of the Court of 24 July 2012.

Orders