Horleck and Horleck and Ors (Costs)
[2010] FamCAFC 27
•3 March 2010
FAMILY COURT OF AUSTRALIA
| HORLECK & HORLECK AND ORS (COSTS) | [2010] FamCAFC 27 |
| FAMILY LAW - APPEAL – COSTS – Appeal succeeded on a question of law – Certificates sought for appeal and in relation to new trial – Certificates granted |
| Family Law Act 1975 (Cth), s 117 Federal Proceedings (Costs) Act 1981 (Cth), s 8, s 9 |
| APPELLANT/CROSS-RESPONDENT: | Mrs HORLECK |
| RESPONDENT 1/CROSS-APPELLANT: | Mr HORLECK |
| RESPONDENT 2: (in her capacity as Director of X Pty Ltd) | Ms LYMAN-HORLECK |
| RESPONDENT 3: (as trustee for the H Trust) | X PTY LTD |
| RESPONDENT 4: | Ms LYMAN-HORLECK |
| RESPONDENT 5: | Ms COOPER |
| APPEAL NUMBER: | NA | 71 | of | 2008 |
| FILE NUMBER: | BRF | 8480 | of | 1994 |
| DATE DELIVERED: | 3 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| HEARING DATE: | By way of written submissions |
| JUDGMENT OF: | Warnick, May and Barry JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 July 2008 |
| LOWER COURT MNC: | [2008] FamCA 506 |
REPRESENTATION
| APPELLANT: | Appellant appeared in person |
| RESPONDENTS: | Respondents appeared in person |
Orders
That the court grants to the appellant wife a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the court grants to the appellant wife a costs certificate pursuant to the provisions of section 8 Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant wife in respect of the costs incurred in relation to the new trial.
IT IS NOTED that publication of this judgment under the pseudonym Horleck & Horleck and Ors (Costs) is approved 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 Number: NA 71 of 2008
File Number: BRF 8480 of 1994
Mrs HORLECK
Appellant/Cross-Respondent
And
Mr HORLECK
Respondent 1/Cross-Appellant
And
Ms LYMAN-HORLECK
Respondent 2; in her capacity as Director of X Pty Ltd
And
X PTY LTD
Respondent 3; as trustee for the H Trust
And
Ms LYMAN-HORLECK
Respondent 4
And
Ms COOPER
Respondent 5
REASONS FOR JUDGMENT
Following upon an appeal being allowed, the appellant seeks a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). Because of her reference to the rehearing ordered, we take her also to be seeking a certificate towards the cost of retrial.
We consider it implicit that the appellant does not seek an order for costs against any of the respondents to the appeal, in acknowledgement of the terms of s 117 of the Family Law Act 1975.
As the appeal succeeded on a question of law, we further consider that the appellant should be granted a certificate both in respect to the appeal and the retrial. Although she was unrepresented on the appeal, she may have incurred recoverable costs. She was represented at trial.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 3 March 2010
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