Hoult & Hoult (Costs)
[2013] FamCAFC 153
•7 October 2013
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 | of | 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 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) Act1981 (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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoult & Hoult (Costs) has been approved by the Chief Justice 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 9 of 2012
NA 53 of 2012
File Number: BRC 3036 of 2011
| Mr Hoult |
Appellant in the first appeal and respondent in the second appeal
And
| Mrs Hoult |
Respondent in the first appeal and appellant in the second appeal
REASONS FOR JUDGMENT
On 26 July 2013 this Court delivered reasons in relation to two appeals against orders made by Murphy J. The first appeal, by the husband, was against a declaration made by Murphy J on 22 December 2011 that an agreement made between the parties was not a binding financial agreement for the purposes of the Family Law Act 1975 (Cth) (“the Act”). The second appeal, by the wife, was against a declaration made by Murphy J on 22 May 2012 that the agreement should bind the parties as it would be unjust and inequitable for it not to be binding. The appeals were heard together.
The Court made orders providing for the filing of submissions as to the costs of the appeals and the rehearing. The husband filed his submissions on 16 August 2013 and the wife filed hers on 22 August 2013. On 6 September 2013 the husband advised that he did not intend to reply.
Both parties were successful in their respective appeals and the matter has been remitted for retrial. Neither party seeks an order for costs and both seek costs certificates for the appeals and the rehearing(s) required. As the appeals both succeeded on a question of law, we consider it appropriate to award certificates as requested pursuant to the Federal Proceeding (Costs) Act 1981 (Cth). We accept the submission that there should be a certificate for each appeal as they were directed to two distinct issues and involved wholly different grounds.
The only controversy between the parties was whether there would be one rehearing or two. The wife did not accept there would necessarily be two separate hearings, as there were when the matter was heard by Murphy J, whereas the husband submitted it was inevitable there would be two hearings. The form of our order will accommodate either eventuality.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 October 2013.
Associate:
Date: 7 October 2013
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