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Limousin v Limousin (Costs)

Limousin v Limousin (Costs)

Case [2007] FamCA 1178 28 September 2007

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FAMILY COURT OF AUSTRALIA

LIMOUSIN & LIMOUSIN (COSTS)

[2007] FamCA 1178

FAMILY LAW - COSTS – Husband sought costs against the wife and/or her solicitor in relation to the wife’s discontinued appeal and her unsuccessful appeal against property orders – Although the appeals had been unsuccessful and arguably optimistic, there was no evidence of any improper conduct by the wife’s solicitor or that he had acted in a way other than on the wife’s instructions that would justify a costs order against him – The wife should pay the husband’s costs of the discontinued appeal but might consider looking to her solicitor for reimbursement – The wife’s bereft financial circumstances militate against a costs order against her in relation to the unsuccessful property appeal

FAMILY LAW - DISQUALIFICATION – The solicitor made an informal application for the Full Court to disqualify itself and order a rehearing of the wife’s appeal asserting that the Full Court had relied heavily upon admissions made by the wife’s former counsel who had since died and about whom there were allegations of illicit drug use – Held there was no ability to enable the Full Court to reopen the concluded appeal nor was it appropriate to do so if such power existed

Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 10.11

Antoun v R (2006) 224 ALR 51
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
De L v Director General NSW Department of Community Services (No 2) (1997) 190 CLR 207; (1997) 143 ALR 171; (1997) FLC 92-744; (1997) 21 Fam LR 432
DJL v Central Authority (2000) 201 CLR 226; (2000) 170 ALR 659; (2000) FLC 93‑015; (2000) 26 Fam LR 1
Johnson v Johnson (2000) 201 CLR 488; (2000) 174 ALR 655; (2000) FLC 93-041; (2000) 26 Fam LR 627
Kohan and Kohan (1993) FLC 92-340; (1992) 16 Fam LR 245
Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155
MacMillan Bloedel Ltd v Minister of Finance (1985) 60 BCLR 145
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; (2002) 187 ALR 117
Penfold v Penfold (1980) 144 CLR 311; (1980) 28 ALR 213; (1980) FLC 90-800; (1980) 5 Fam LR 579
Ridehalgh v Horsfield [1994] 3 All ER 848
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169
Vakauta v Kelly (1989) 167 CLR 568; (1989) 87 ALR 633
Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331

APPELLANT:

Ms Limousin

FIRST RESPONDENT:

Mr Limousin

SECOND RESPONDENT:

Mr McV

FILE NUMBER:

MLF

10522

1996

APPEAL NUMBER:

2004

DATE DELIVERED:

28 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Kay, Coleman and Boland JJ

HEARING DATE:

11 September 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 May 2003;
24 July 2003;
18 May 2004;
25 May 2004

LOWER COURT MNC:

[2003]…

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 Limousin v Limousin (Costs)

Details

AGLC: Limousin v Limousin (Costs) [2007] FamCA 1178
Case: [2007] FamCA 1178
Decision Date: 28 September 2007

CaseChat Overview and Summary

In *Limousin v Limousin (Costs)*, the Full Court of the Family Court of Australia considered applications for costs made by the husband against the wife and/or her solicitor. The husband sought costs in relation to the wife's discontinued appeal and her unsuccessful appeal against property orders.

The primary legal issues before the Court were whether costs should be awarded against the wife personally, against her solicitor, or both, in relation to the discontinued and unsuccessful appeals. Additionally, the Court addressed an informal application by the wife's solicitor for the Full Court to disqualify itself and order a rehearing of the wife's appeal, based on allegations concerning the deceased former counsel for the wife.

The Court held that there was no basis to make a costs order against the wife's solicitor, as there was no evidence of improper conduct or that the solicitor had acted otherwise than on the wife's instructions. Regarding the wife, the Court ordered that she pay the husband's costs of the discontinued appeal, noting that she might consider seeking reimbursement from her solicitor for those costs. However, the Court declined to make a costs order against the wife in relation to the unsuccessful property appeal, taking into account her bereft financial circumstances. The Court also found no ability or appropriateness to reopen the concluded appeal or order a rehearing based on the solicitor's application.

Orders