FAMILY COURT OF AUSTRALIA
Malloy & Stopford Malloy [2021] FamCAFC 23
Appeal from: Malloy & Stopford Malloy [2019] FamCA 986 Appeal number(s): SOA 4 of 2020 File number(s): ADC 2595 of 2015 Judgment of: STRICKLAND, ALDRIDGE & KENT JJ Date of judgment: 24 February 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where interveners seek costs against husband – Financial circumstances – Wholly unsuccessful application for leave to appeal – Where written offers to settle were reasonable and should have been accepted – Husband to pay interveners’ costs of the application for leave to appeal as agreed or assessed – Husband to pay the interveners’ costs of the application for costs as agreed or assessed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where wife seeks costs against husband – Financial circumstances – Wholly unsuccessful application for leave to appeal – Details of written offers to settle not provided – Husband to pay wife’s fixed costs of the application for leave to appeal – Wife’s application for costs of the costs application dismissed.
Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.50
Cases cited: Lenova & Lenova (Costs) [2011] FamCAFC 141
Malloy & Stopford Malloy [2019] FamCA 986
Malloy & Stopford Malloy and Ors [2020] FamCAFC 270
Mallory & Mallory [2020] FamCAFC 62
Division: Appeal Division Number of paragraphs: 36 Place: Heard in Chambers by way of written submissions, delivered in Sydney Applicant/ Second Cross-Respondent: Self-represented litigant Counsel for the First Respondent/ First Cross-Respondent: Mr McGinn Solicitor for the First Respondent/ First Cross-Respondent: Piper Alderman Third Respondent/ Second Cross-Applicant: Did not participate Solicitor for the Interveners: Crawford Legal ORDERS
SOA 4 of 2020
ADC 2595 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR MALLOY
Applicant/ Second Cross-Respondent
AND: MS STOPFORD MALLOY
First Respondent/ First Cross-Respondent
MR Q MALLOY
Second Respondent/ First Cross-Applicant
THE MALLOY GROUP
Third Respondent/ Second Cross-Applicant
MR R AND MR S, RECEIVERS
Interveners
ORDER MADE BY:
STRICKLAND, ALDRIDGE & KENT JJ
DATE OF ORDER:
24 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The husband is to pay the interveners’ costs of and incidental to the application for leave to appeal as agreed, or in default of agreement, as assessed.
2.The husband is to pay the interveners’ costs of the Application in an Appeal filed on 3 December 2020 as agreed, or in default of agreement, as assessed.
3.The husband is to pay the wife’s costs of and incidental to the application for leave to appeal fixed in the sum of $21,057.08.
4.The wife’s application for the costs of and incidental to the Application in an Appeal filed on 4 December 2020 is dismissed.
5.The wife’s application for certification of senior and junior counsel pursuant to r 19.50 of the Family Law Rules 2004 (Cth) is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons…
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CaseChat Overview and Summary
The court was required to decide whether the husband should bear the costs of the unsuccessful leave to appeal application for both the interveners and the wife. This involved assessing the reasonableness of written offers to settle made by the interveners, as well as considering the wife's application for costs. The court also needed to determine whether the wife's application for senior and junior counsel certification was justified.
The court found that the husband should pay the interveners' costs of the application for leave to appeal, as well as the costs of the subsequent application for costs, in accordance with the terms agreed upon or assessed if no agreement was reached. This decision was based on the finding that the written offers to settle made by the interveners were reasonable and should have been accepted. The court also ordered that the husband pay the wife's fixed costs of the application for leave to appeal, which were quantified at $21,057.08. The wife's application for costs associated with the application for costs was dismissed, as was her application for certification of senior and junior counsel.
In summary, the court ordered that the husband pay the costs of the unsuccessful leave to appeal application for both the interveners and the wife. The wife's application for costs associated with the application for costs and her application for senior and junior counsel certification were dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The husband is to pay the interveners’ costs of and incidental to the application for leave to appeal as agreed, or in default of agreement, as assessed.
2. The husband is to pay the interveners’ costs of the Application in an Appeal filed on 3 December 2020 as agreed, or in default of agreement, as assessed.
3. The husband is to pay the wife’s costs of and incidental to the application for leave to appeal fixed in the sum of $21,057.08.
4. The wife’s application for the costs of and incidental to the Application in an Appeal filed on 4 December 2020 is dismissed.
5. The wife’s application for certification of senior and junior counsel pursuant to r 19.50 of the Family Law Rules 2004 (Cth) is dismissed.
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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