Malloy & Stopford Malloy

Case [2021] FamCAFC 23


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 2015

APPEAL 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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AGLC
Malloy & Stopford Malloy [2021] FamCAFC 23
Case
[2021] FamCAFC 23
Decision Date

CaseChat Overview and Summary

The appeal in Malloy & Stopford Malloy involved the husband and wife, along with interveners. The primary dispute centred on costs incurred during the appeal process, specifically those associated with an unsuccessful application for leave to appeal and a subsequent application for costs. The Family Court of Australia was tasked with determining these financial matters.

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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