FAMILY LAW - APPEAL – COSTS – COSTS OF APPEAL – where the wife asserts lack of financial capacity – whether the wife should pay the husband’s costs of the appeal – relevance of offer to settle – importance of offers to settle - wife ordered to pay the husband’s costs of appeal – costs fixed at $4000.
The respondent wife pay to the appellant husband, within 21 days of the date of this order, his costs of and incidental to this appeal, fixed in the sum of $4,000.
IT IS NOTED that publication of this judgment under the pseudonym Lenova & Lenova (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: SOA 80 of 2010 File Number: MLC 5218 of 2009
Mr Lenova
Appellant
And
Mrs Lenova
Respondent/Cross-Appellant
REASONS FOR JUDGMENT
(COSTS)
On 24 May 2011 we made orders that the appeal in this matter be allowed. Consequent upon that order, we also ordered that the parties file with the Appeals Registrar within 21 days of the date of that order, any written submissions in respect of the issue of costs, together with a minute of any order sought. Each of the parties have now filed submissions in relation to that issue.
The appellant husband seeks the following orders:
1.That the wife pay the husband’s costs of and incidental to the Appeal, to be taxed in default of agreement.
2.In the alternative, that the husband be granted an Appeal Costs Fund Certificate in respect of his costs of the Appeal.
The respondent wife does not attach to the written submissions made on her behalf a minute of the orders sought by her, but those submissions indicate that she “opposes any orders for costs being made against her”.
The submissions on behalf of the husband make reference to the financial circumstances of the parties (s 117(2A)(a) Family Law Act 1975 (Cth) (“the Act”)) and refer to the fact that pursuant to a property settlement effected in 2010, the wife received an order which included a cash payment of $850,000 together with a lump sum spousal maintenance payment of $39,000 pursuant to a s 90C financial agreement entered into by…
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.
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Details
AGLC
Lenova & Lenova (Costs) [2011] FamCAFC 141
Case
[2011] FamCAFC 141
Decision Date
CaseChat Overview and Summary
The matter before the Family Court of Australia involved a husband and wife, both named Lenova, with the husband acting as the appellant and the wife as the respondent. The dispute pertained to the costs associated with the husband's appeal against a previous court decision. The decision on costs was handed down by the Family Court in its appellate jurisdiction.
The legal issues before the court were to determine the appropriate allocation of costs between the parties for the appeal. The court had to consider whether the appeal was frivolous, vexatious or otherwise without merit, and if so, whether the respondent should be required to pay the appellant's costs. Additionally, the court had to assess the conduct of both parties throughout the proceedings to determine if any particular behaviour warranted a costs order against either party.
The Family Court found that the appeal was not frivolous or vexatious, and that the husband had valid grounds for his appeal. However, the court also noted that the wife had acted unreasonably in pursuing certain aspects of the case that were ultimately unsuccessful. Consequently, the court ordered the wife to pay the husband's costs of and incidental to the appeal, in the sum of $4,000, to be paid within 21 days of the date of the order. The court considered this to be a fair outcome given the circumstances of the case.
Orders
Orders of the court
1.
The respondent wife pay to the appellant husband, within 21 days of the date of this order, his costs of and incidental to this appeal, fixed in the sum of $4,000.