Mosef and Mosef and Anor - [2017] FamCA 587

FAMILY COURT OF AUSTRALIA

MOSEF & MOSEF AND ANOR

[2017] FamCA 587

FAMILY LAW – COSTS – Where application for indemnity costs – Where consideration of general principles as to costs – Where appropriate that order be made on party/party basis – Where only lump sum figure asserted – Appropriate for agreement or assessment of costs.

Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) r 19.18

Bele & Vaughan (Costs) [2012] FamCAFC 198
Hawkins & Roe [2012] FamCAFC 77
Kohan & Kohan (1993) FLC 92-340
Penfold v Penfold (1980) 144 CLR 311
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Ms Mosef

RESPONDENT:

Mr Mosef

INTERVENOR:

Cambridge Law Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

Ms Dodson

FILE NUMBER:

PAC

4109

2014

DATE DELIVERED:

11 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 19 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Moutasallem

SOLICITOR FOR THE RESPONDENT:

Hajjar Legal

SOLICITOR FOR THE INTERVENOR:

Cambridge Law Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Campbelltown Family Law

Orders

That the wife pay the costs of the Intervenor of and incidental to the application to intervene and of this costs application on a party/party basis as agreed within one month from the date of this order in default of agreement as assessed.

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 judgment by this Court under the pseudonym Mosef & Mosef and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4109 of 2014

Ms Mosef

Applicant

And

Mr Mosef

Respondent

And

Cambridge Law Pty Ltd

Intervenor

REASONS FOR JUDGMENT

The application for determination is an Application filed 20 April 2017 by the Intervenor solicitors that inter alia seeks an order for costs against their former client, the wife in the primary proceedings.
Final orders as to the property entitlements of the husband and wife were made on 17 July 2017.
The application by the Intervenor was first listed before a Registrar on 1 May 2017 and on that date adjourned to the first day of the property and parenting hearing between the husband and wife on 18 May 2017.
The application relevantly sought orders that in summary provided:
a)That the applicant solicitors be granted leave to intervene in the proceedings;
b)That the applicant be entitled to…

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: [2017] FamCA 587
Decision Date: 11 August 2017

CaseChat Overview and Summary

In *Mosef and Mosef and Anor*, Foster J of the Federal Circuit Court of Australia considered an application for costs made by an intervenor. The specific nature of the underlying dispute between the parties, Mr and Mrs Mosef, is not detailed in the provided text, but it is clear that an intervenor sought to recover their costs associated with their participation in the proceedings and a subsequent costs application.

The central legal issue before the court was the determination of liability for the intervenor's costs. Specifically, the court was required to decide whether the wife should be ordered to pay the costs of the intervenor, and on what basis those costs should be assessed.

Foster J ordered that the wife pay the costs of the intervenor. These costs were to be in respect of the application to intervene and the costs application itself, and were to be assessed on a party/party basis. The parties were given one month to agree on the quantum of these costs, failing which the costs would be assessed by the court.

Orders

Orders of the court

That the wife pay the costs of the Intervenor of and incidental to the application to intervene and of this costs application on a party/party basis as agreed within one month from the date of this order in default of agreement as assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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