Kalinec & Kalinec - [2021] FedCFamC1A 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kalinec & Kalinec [2021] FedCFamC1A 44

Appeal from: Kalinec & Kalinec [2021] FCCA 1860

Appeal number(s): EAA 36 of 2021

File number(s): SYC 5407 of 2018

Judgment of: ALDRIDGE J

Date of judgment: 29 October 2021

Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal from orders dismissing an application for costs – Where the appellant is a third party to the marriage and was joined to the proceedings by the respondent – Where the appellant seeks costs from the respondent – Final property settlement orders made by consent – Whether the respondent was wholly unsuccessful in proceedings – Where the primary judge wrongly conflated issues of disclosure and joinder – Irrelevant consideration taken into account – Error established – Appeal allowed in part – Discretion re-exercised – Order varied – Respondent to pay the appellant’s costs of the appeal in a fixed sum.

Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 117(2A)

Cases cited:
Conrad and Another & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 255

E Pty Ltd and Ors & Zunino and Anor (No. 2) [2020] FamCAFC 272

House v The King (1936) 55 CLR 499; [1936] HCA 40

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

Number of paragraphs: 42

Date of hearing: 8 October 2021

Place: Sydney (via video link)

Counsel for the Appellant: Mr Bolger

Solicitor for the Appellant: Chatswood Law

Counsel for the Respondent: Mr Rogers

Solicitor for the Respondent: Avondale Lawyers

ORDERS

EAA 36 of 2021
SYC 5407 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS KALINEC

Appellant

AND:
MR KALINEC

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

29 OCTOBER 2021

THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Order 2 made by a judge of the Federal Circuit Court of Australia on 18 March 2021 is set aside and varied as follows:
2.The respondent pay the appellant’s costs of and incidental to the proceedings in the Federal Circuit Court of Australia, as agreed or in default, assessed.

3.The respondent pay the appellant’s costs of the appeal fixed in the sum of $16,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalinec & Kalinec has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION

This is an appeal from an order made by a judge of the Federal Circuit Court of Australia on 18…

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 Kalinec & Kalinec

Details

AGLC: Kalinec & Kalinec [2021] FedCFamC1A 44
Case: [2021] FedCFamC1A 44
Decision Date

CaseChat Overview and Summary

This case concerns an appeal from the Federal Circuit Court of Australia against an order dismissing an application for costs. The appeal was brought by Ms B Kalinec (the appellant) against Mr Kalinec (the respondent). The appellant was joined to proceedings by the respondent in relation to a property dispute. The appellant sought costs from the respondent, however, the primary judge dismissed her application. The appellant appealed the decision on the basis that the primary judge had wrongly conflated the issues of disclosure and joinder, that the respondent had abandoned his claim against her, and that the proceedings were wholly unsuccessful. The court found that the primary judge had indeed conflated the issues of disclosure and joinder and that the costs incurred by the appellant had been entirely wasted. Therefore, the appeal was allowed in part. The court re-exercised its discretion in relation to the costs and ordered that the respondent pay the appellant's costs of and incidental to the proceedings in the Federal Circuit Court, as agreed or in default, as assessed. Additionally, the respondent was ordered to pay the appellant's costs of the appeal in a fixed sum of $16,000.

The court's reasoning was based on the established principles of appeal against an exercise of discretion. The court found that the primary judge had taken an irrelevant matter into account and failed to take into account a relevant consideration. The court also found that the primary judge had not considered the wasted costs incurred by the appellant. The court considered the matters raised by s 117(2A) of the Family Law Act 1975 (Cth) and found that the appropriate order was for the respondent to pay the appellant's costs. The court also noted that the appellant was a third party to the marriage and that the court would more readily award costs to such a party. The court ordered that the respondent pay the appellant's costs fixed in the sum of $16,000.

Orders