Mitty & Mitty and Ors

Case [2010] FamCAFC 256


FAMILY COURT OF AUSTRALIA

MITTY & MITTY AND ORS [2010] FamCAFC 256

FAMILY LAW – APPEAL – From a Family Court Judge – Where a Judicial Registrar ordered that the husband pay an equivalent amount to his wife on account of legal costs he paid to his own solicitors (referred to as a “dollar for dollar” order) – Where the husband paid a sum to his solicitors without the equivalent sum having been paid to the wife – Where trial Judge ordered that the payment by the husband to his solicitors should be set aside pursuant to s 106B of the Family Law Act 1975 (Cth) and a payment to the wife be made – Leave to appeal sought from an interlocutory order of a trial Judge – No error in principle established – Application for leave to appeal dismissed – Where substantive property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) have been withdrawn

FAMILY LAW - COSTS – the husband pay the wife’s costs of an incidental to the appeal, quantified at $4,000.00 

Family Law Act 1975 (Cth) s 106B
Legal Profession Act 2004 (NSW) s 255
Legal Profession Regulations 2005 reg. 88(1), (2,) (3)(a)(ii)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
Chorn & Hopkins (2004) FLC 93-204
House v The King (1936) 55 CLR 499
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; (1996) 70 ALJR 541
Rutherford and Rutherford (1991) FLC 92-255
APPELLANT: Mr Mitty
FIRST RESPONDENT: Ms Mitty
THIRD RESPONDENT: Mitty Pty. Ltd.
FOURTH RESPONDENT: Ms N
FIFTH RESPONDENT: Ms S
SIXTH RESPONDENT: M Lawyers
FILE NUMBER: SYC 8326 of 2007
FIRST APPEAL NUMBER: EA 139 of 2008
SECOND APPEAL NUMBER: EA 144 of 2008

DATE DELIVERED:

22 December 2010

PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Faulks DCJ, Boland & Stevenson JJ
HEARING DATE: 22 April 2010
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 27 October 2008
6 November 2008
18 November 2008
LOWER COURT MNC: [2008] FamCA 972
[2008] FamCA 973
[2008] FamCA 1043

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self-represented litigant
SOLICITOR FOR THE APPELLANT: Self-represented litigant
COUNSEL FOR THE FIRST RESPONDENT: Mr Campton

SOLICITOR FOR THE FIRST

RESPONDENT::

Pearson Lawyers

COUNSEL FOR THE THIRD

RESPONDENT:

No appearance

SOLICITOR FOR THE THIRD 

RESPONDENT:

No appearance

COUNSEL FOR THE FOURTH 

RESPONDENT:

No appearance

SOLICITOR FOR THE FOURTH

RESPONDENT:

No appearance

COUNSEL FOR THE FIFTH 

RESPONDENT:

No appearance

SOLICITOR FOR THE FIFTH 

RESPONDENT:

No appearance
COUNSEL FOR THE SIXTH RESPONDENT: No appearance

SOLICITOR FOR THE SIXTH 

RESPONDENT:

No appearance

Orders

  1. The application of the wife filed 22 December 2009 for summary dismissal of the husband’s application for leave to appeal filed 28 November 2008 (EA 139 of 2008) is allowed.

  2. The application of the husband (EA 139 of 2008) filed 28 November 2008 for leave to appeal the orders of the Honourable Justice Fowler made 27 October 2008 and 6 November 2008 is dismissed

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Details
AGLC
Mitty & Mitty and Ors [2010] FamCAFC 256
Case
[2010] FamCAFC 256
Decision Date

CaseChat Overview and Summary

The case before the court involved a dispute between Mitty and his former spouse regarding the allocation of legal costs in the context of their family law proceedings. The matter originated in the Family Court where Justice Fowler had made several orders, including a "dollar for dollar" order requiring the husband to pay an equivalent amount to his wife for costs he had incurred. However, the husband had not yet made the equivalent payment to the wife, leading to an order by Justice Fowler that the husband's payment to his solicitors should be set aside and instead, the amount should be paid to the wife. Mitty sought leave to appeal these orders, which the wife opposed, and sought summary dismissal of the appeal application. The primary legal issues before the court were whether there was any error in principle in the orders made by Justice Fowler and whether Mitty should be granted leave to appeal those orders.

The court considered the arguments presented by both parties and found that no error in principle had been established in the orders made by Justice Fowler. The court held that the trial judge's orders were consistent with the provisions of the Family Law Act 1975 (Cth) and that there was no basis for granting leave to appeal. The court emphasised that the decision to set aside the payment to the husband's solicitors and direct the payment to the wife was in line with the equitable principle of ensuring that each party bears their own costs and that there was no basis to interfere with the trial judge's discretion. Consequently, the application for leave to appeal was dismissed.

The court further addressed the costs associated with the appeal, considering the wife's application for costs. Given that the husband's applications for leave to appeal had been dismissed, the court ordered that the husband pay the wife's costs of and incidental to the appeal, quantified at $4,000.00. This included costs that had been reserved on a previous date. The court made clear that the orders concerning costs were to be paid by the husband and that the substantive property proceedings had been withdrawn.

Orders

Orders of the court

1.

The application of the wife filed 22 December 2009 for summary dismissal of the husband’s application for leave to appeal filed 28 November 2008 (EA 139 of 2008) is allowed.

2.

The application of the husband (EA 139 of 2008) filed 28 November 2008 for leave to appeal the orders of the Honourable Justice Fowler made 27 October 2008 and 6 November 2008 is dismissed

3.

The application of the husband (EA 144 of 2008) filed 16 December 2008 for leave to appeal the orders of the Honourable Justice Fowler made 18 November 2008 is dismissed.

4.

The husband pay the wife’s costs of and incidental to the applications referred to in Orders 1-3 of these orders, including costs reserved on 27 January 2010, in the sum of $4,000.00.

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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