Mansfield and Ors & Mansfield and Anor - [2019] FamCAFC 186

FAMILY COURT OF AUSTRALIA

MANSFIELD AND ORS & MANSFIELD AND ANOR

[2019] FamCAFC 186

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the appellants are third parties to the marriage – Application by first respondent wife to join appellants to the proceedings below dismissed – Application by appellants for indemnity costs dismissed – Where the joinder attempt was “imprudent” – Where the disparity between the financial circumstances of the primary appellant and the first respondent is great – No appealable error – Application for costs of costs application dismissed below without reasons – Appeal allowed in part – Re-Exercise – Application for costs of costs application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal is largely unsuccessful – Where the first respondent has incurred legal expenses unnecessarily – Where an order for costs will occasion no financial discomfort for the primary appellant – Costs order made.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit Court Rules 2001 (Cth) Sch 1, r 21.02(2)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; [2001] HCA 26
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 367 ALR 146; [2019] NSWCA 61
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Hand & Bodilly [2013] FamCAFC 98
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kohan and Kohan (1993) FLC 93-340
Limousin v Limousin (Costs) (2007) 38 FamLR 478; [2007] FamCA 1178
Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4
Stephens v Stephens (Enforcement) (Costs) (2010) 44 Fam LR 117; [2010] FamCAFC 172
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

FIRST APPELLANT:

Mr Mansfield Senior

SECOND APPELLANT:	Ms Macri
THIRD APPELLANT:	Company 1 Pty Ltd
FOURTH APPELLANT:	Company 2 Pty Ltd
FIRST RESPONDENT:	Ms Mansfield
SECOND RESPONDENT:	Mr Mansfield

FILE NUMBER:

ADC

4119

2014

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

25 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Ryan (via video link) & Kent JJ

HEARING DATE:

9 September 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 February 2019

LOWER COURT MNC:

[2019] FCCA 318

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr O'Leary

SOLICITOR FOR THE APPELLANTS:

DMAW Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Robertson SC with Ms Stanley

SOLICITOR FOR THE FIRST RESPONDENT:

Jacqui Ion Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

No appearance

Orders

The appeal be allowed in part.
The appellants’ application that the first respondent pay the costs of their application for costs be dismissed.
That the appellants pay the first respondent’s costs of and incidental to the appeal in the amount of $25,000 within twenty-eight (28) days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this…

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

Case: [2019] FamCAFC 186
Decision Date: 25 October 2019

CaseChat Overview and Summary

Mansfield and Others v Mansfield and Another involved an appeal against decisions made in family law proceedings. The respondents, the first and second respondents, were married and have children together. The appellants, who are not parties to the marriage, sought indemnity costs against the first respondent, who had previously attempted to join them in the proceedings below. The application to join the appellants was dismissed, and the appellants' subsequent application for indemnity costs was also dismissed. The appellants appealed against the dismissal of their costs application and sought an order for indemnity costs. The first respondent cross-appealed against the dismissal of her application for costs of the costs application.

The court was required to determine whether the appellants' application for indemnity costs should be allowed, and if not, whether the first respondent should bear the costs of that application. The court also needed to decide whether the first respondent should be ordered to pay the costs of the costs application, and if so, whether the amount was appropriate. The court had to consider the imprudence of the attempt to join the appellants, the significant disparity in financial circumstances between the parties, and whether the appeal had any merit.

The court found that the attempt to join the appellants was imprudent and that there was no appealable error in the decisions below. However, the court held that the first respondent had incurred unnecessary legal expenses and that an order for costs would not cause financial discomfort for the primary appellant. The appeal was allowed in part, and the appellants' application for indemnity costs was dismissed. The first respondent's application for costs of the costs application was dismissed, but the court allowed her cross-appeal in part and ordered the appellants to pay her costs of and incidental to the appeal in the amount of $25,000.

The court's orders were that the appeal be allowed in part, the appellants' application for indemnity costs be dismissed, and that the appellants pay the first respondent's costs of and incidental to the appeal in the amount of $25,000 within twenty-eight days. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

The appeal be allowed in part.

The appellants’ application that the first respondent pay the costs of their application for costs be dismissed.

That the appellants pay the first respondent’s costs of and incidental to the appeal in the amount of $25,000 within twenty-eight (28) days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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