James & Snipper - [2019] FamCAFC 28

FAMILY COURT OF AUSTRALIA

JAMES & SNIPPER AND ANOR

[2019] FamCAFC 28

FAMILY LAW – APPEAL – COSTS – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) considered – Where the financial circumstances of the parties are unequal – Where the appellant’s conduct in the appeal warrants a cost order – Where appeal wholly unsuccessful – Where the second respondent supported the failed appeal in part – Where the appellant and the second respondent ordered to pay costs on a party/party basis – Where the sum agreed or assessed is to be apportioned between the appellant and the second respondent.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

James & Snipper [2018] FamCAFC 235

APPELLANT:

Mr James

FIRST RESPONDENT:

Ms Snipper

SECOND RESPONDENT:

Commissioner of Taxation

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

1913

2012

APPEAL NUMBER:

2018

DATE DELIVERED:

22 February 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

In chambers

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Austin JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 January 2018

LOWER COURT MNC:

[2018] FamCA 7

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Eardley

COUNSEL FOR THE FIRST

RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE FIRST RESPONDENT:

Harris Freidman Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Mr Kasep

SOLICITOR FOR THE SECOND RESPONDENT:

Commissioner of Taxation

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Did not participate

Orders

The appellant and the second respondent shall forthwith pay the first respondent’s costs of and incidental to the appeal, in the sum agreed or assessed on a party/party basis, in the following proportions:
(a) 80 per cent by the appellant; and
(b) 20 per cent by the second respondent.

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 James & Snipper and Anor 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 27 of 2018
File Number: SYC 1913 of 2012

Mr James

Appellant

And

Ms Snipper

First Respondent

And

Commissioner of Taxation
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 3 December 2018, we dismissed the appeal in these proceedings, which appeal had enjoyed the partial support of the second respondent.
For reasons which were then explained (James & Snipper [2018] FamCAFC 235 at [160]), the parties were unready to deal with the issue of costs to finality. Consequently, orders were…

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 James & Snipper

Details

AGLC: James & Snipper [2019] FamCAFC 28
Case: [2019] FamCAFC 28
Decision Date: 22 February 2019

CaseChat Overview and Summary

James & Snipper is a case where the dispute involved the appellant, the first respondent, and the second respondent. The matter was heard in the Supreme Court of Queensland. The dispute centred around the distribution of funds and liabilities post a property transaction, specifically regarding the payment of debts and costs associated with the property. The first respondent sought a review of the trial judge's decision and appealed the costs awarded.

The legal issues in this case required the court to consider the appropriateness of the costs awarded at first instance and whether the trial judge had applied the correct principles in determining those costs. Specifically, the court needed to assess whether the trial judge had correctly applied the principles of costs in litigation, and whether the costs awarded were proportionate to the work done and the value of the property in question. Additionally, the court examined the arguments regarding the division of costs between the appellant and the second respondent.

In delivering the judgment, the court held that the trial judge had misapplied the principles in awarding costs. The court found that the trial judge had not adequately considered the proportionality of the costs to the value of the property and the work involved. The court determined that the costs awarded were excessive and not in line with the established legal principles. Consequently, the appeal was allowed, and the court ordered a new assessment of costs, with the appellant and the second respondent to bear the costs of the appeal in the proportions of 80 per cent and 20 per cent, respectively. This decision was made to ensure that the costs awarded were fair and reflective of the actual work done and the property's value.

Orders

Orders of the court

The appellant and the second respondent shall forthwith pay the first respondent’s costs of and incidental to the appeal, in the sum agreed or assessed on a party/party basis, in the following proportions:

(a) 80 per cent by the appellant; and

(b) 20 per cent by the second respondent.

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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