Hoult & Hoult (Costs) - [2013] FamCAFC 153

FAMILY COURT OF AUSTRALIA

HOULT & HOULT (COSTS)

[2013] FamCAFC 153

FAMILY LAW – APPEAL – COSTS – Costs of appeals and rehearing – Appeals allowed on questions of law – Certificates granted.

Family Law Act 1975 (Cth)
Federal Proceeding (Costs) Act 1981 (Cth)

APPELLANT IN THE FIRST APPEAL

RESPONDENT IN THE SECOND APPEAL:

Mr Hoult

RESPONDENT IN THE FIRST APPEAL

APPELLANT IN THE SECOND APPEAL:

Mrs Hoult

FILE NUMBER:

BRC

3036

2011

APPEAL NUMBER:	NA	9	of	2012
NA	53	of	2012

DATE DELIVERED:

7 October 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Strickland and Ainslie-Wallace JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2011
22 May 2012

LOWER COURT MNC:

[2011] FamCA 1023 [2012] FamCA 367

REPRESENTATION

COUNSEL FOR THE APPELLANT IN THE FIRST APPEAL AND RESPONDENT IN THE SECOND APPEAL:

Mr Galloway

SOLICITOR FOR THE APPELLANT IN THE FIRST APPEAL AND RESPONDENT IN THE SECOND APPEAL:

Peter J Sheehy Solicitor

COUNSEL FOR THE RESPONDENT IN THE FIRST APPEAL AND APPELLANT IN THE SECOND APPEAL:

Mr Page SC

SOLICITOR FOR THE RESPONDENT IN THE FIRST APPEAL AND APPELLANT IN THE SECOND APPEAL:

Damien Greer Lawyers

Orders

There be no order for costs in relation to appeals NA 9 of 2012 and NA 53 of 2012.
In appeal NA 9 of 2012 the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.
In appeal NA 9 of 2012 the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 respondent in respect of the costs incurred by her in relation to the appeal.
In appeal NA 53 of 2012 the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by her in relation to the appeal.
In appeal NA 53 of 2012 the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 respondent in respect of 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 Hoult & Hoult (Costs)

Details

AGLC: HOULT & HOULT (COSTS) [2013] FamCAFC 153
Case: [2013] FamCAFC 153
Decision Date: 7 October 2013

CaseChat Overview and Summary

This case involved two appeals from decisions of the Family Court of Australia. The husband and wife, referred to as the appellant and respondent in the respective appeals, were disputing the costs of two appeals. The appeals, numbered NA 9 of 2012 and NA 53 of 2012, involved complex family law issues. The primary concern was the allocation of costs between the parties and the issuance of costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

The legal issues before the court were whether the appeals were of a nature that warranted a costs certificate under the Act and if so, which sections of the Act applied to the respective parties. The court had to consider the provisions of sections 6, 8, and 9 of the Act to determine the appropriate allocation of costs and whether a certificate should be issued to enable the Attorney-General to authorise payments for the incurred costs.

The court examined the nature of the appeals and the circumstances surrounding them. It concluded that while there should be no order for costs in relation to appeals NA 9 of 2012 and NA 53 of 2012, it was appropriate to issue costs certificates under sections 6, 8, and 9 of the Act. The court found that each party had incurred costs in the appeals and the rehearings of the proceedings, justifying the issuance of certificates to enable the Attorney-General to authorise payments for these costs.

Accordingly, the court granted costs certificates to both parties in each appeal. The certificates recognised the costs incurred by the appellant and respondent in the respective appeals and rehearings. This decision provided clarity on the allocation of costs and facilitated the process for recovering the expenses through the Attorney-General's office.

Orders

Orders of the court

There be no order for costs in relation to appeals NA 9 of 2012 and NA 53 of 2012.

In appeal NA 9 of 2012 the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.

In appeal NA 9 of 2012 the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 respondent in respect of the costs incurred by her in relation to the appeal.

In appeal NA 53 of 2012 the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by her in relation to the appeal.

In appeal NA 53 of 2012 the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 respondent in respect of the costs incurred by him in relation to the appeal.

In appeals NA 9 of 2012 and NA 53 of 2012 the Court grants to each of the parties costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing(s) of the proceedings.

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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