Matthau and Matthau (Costs)
[2009] FamCAFC 68
•21 April 2009
FAMILY COURT OF AUSTRALIA
| MATTHAU & MATTHAU (COSTS) | [2009] FamCAFC 68 |
| FAMILY LAW – APPEAL – COSTS – Concession on one ground of appeal should not work against the applicant – No order as to costs |
| APPLICANT: | Mr MATTHAU |
| RESPONDENT: | Ms MATTHAU |
| FILE NUMBER: | BRC | 3779 | of | 2007 |
| APPEAL NUMBER: | NA | 113 | of | 2008 |
| DATE DELIVERED: | 21 April 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 21 April 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 November 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1421 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGregor |
| SOLICITOR FOR THE APPLICANT: | Anthony Black Family Law Services |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Cartledge Law |
Orders
(a) That by consent the appeal against all four of the orders made in the Federal Magistrates Court of Australia on 21 November 2008 be allowed.
(b)The said order be varied by deleting the word "indemnity" and adding after it "present conclusion on a party/party basis."
The application for leave to appeal O 2 and 3 of the Federal Magistrates Court of Australia made 21 November 2008 be dismissed.
I order that there be no order as to costs of the appeal and the application for leave to appeal.
IT IS NOTED that publication of this judgment under the pseudonym Matthau and Matthau (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA113L of 2008
FILE NUMBER: BRC3779 of 2007
| Mr MATTHAU |
Applicant
And
| Ms MATTHAU |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
The orders will be:
ORDERS DELIVERED
I publish my reasons.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
By way of brief reasons. In the end, notwithstanding the context, I think the success of the appeal should be taken at face value. In other words, the fact that an amended ground was conceded and therefore it was unnecessary for the other grounds to be addressed should not, on the issue of costs at least, work against the appellant. The position might be different if I thought that on their face the other grounds were without merit. But not only did I think that they were arguable, though without hearing from the parties, it seemed to me that they were solidly arguable.
In those circumstances, two parts to the matter have produced opposite results - the appeal succeeded, the application for leave failed. This is a money matter in interlocutory proceedings and I think that there are no other factors that call for a result other than that which I have described.
I should just say something of the application for indemnity costs. I see nothing in the application for leave to appeal of itself which should lead to costs on an indemnity basis, if there was a foundation for costs in any event. Although the application failed and failed perhaps primarily because I considered that other courses were open and therefore there was no substantial hardship, it was in one sense attached to the appeal proceeding. More so, I think the position as to availability of other proceedings was possibly confused - in the end I do not think the confusion mattered - but on its face the order was not described in any way, either as interim or interlocutory.
I have suggested that it was at least arguable that it was interlocutory because of the terms of it, which included an adjournment to another day for a listing in the Family Court, but it may be that its correct description was "interim" rather than "interlocutory".
In the end, I thought the difference in the right to return to Court arising from the distinction was unimportant for the merits of the application for leave to appeal. But nonetheless, I simply point to that to show that it was not a hopeless argument from the first.
Insofar as the non-compliance with the property orders are concerned, I think there is a danger in forging a nexus between non-compliance with the property order made in January 2008 and the issue of costs of the appeal or the application for leave to appeal. If there is a non-compliance then in my view the issue of costs arising out of that and loss arising out of that, are more directly and sensibly dealt with on any application for enforcement and/or interest and costs of such proceedings, possibly on an indemnity basis.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick
Associate:
Date: 30 April 2009
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