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appeal dismissed – Where substantive property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) have been withdrawn FAMILY LAW - COSTS – the husband pay the wife’s costs of an incidental to the appeal, quantified at $4,000.00 |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
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.
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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- Mitty & Mitty and Ors [2010] FamCAFC 256
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- [2010] FamCAFC 256
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CaseChat Overview and Summary
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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