Mosef and Mosef (No 3) - [2015] FamCA 1035

FAMILY COURT OF AUSTRALIA

MOSEF & MOSEF (NO 3)

[2015] FamCA 1035

FAMILY LAW – COSTS – where the wife was successful in her application for interim property distribution but orders were not made in similar terms proffered by her in an offer of settlement – where the wife seeks costs on an indemnity basis – where relevant factors under s 117 of the Family Law Act 1975 (Cth) considered – where principles underlying an award for indemnity costs considered – where order made for costs on a party/party basis.

Family Law Act 1975 (Cth) s 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
Lenova & Lenova (Costs) [2011] FamCAFC 141
Penfold v Penfold (1980) 144 CLR 311
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Mr Mosef

RESPONDENT:

Ms Mosef

FILE NUMBER:

PAC

4109

2014

DATE DELIVERED:

25 November 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

8 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Conte-Mills

SOLICITOR FOR THE APPLICANT:

Thurlows Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Browns The Family Lawyers

Orders

That the husband pay the wife’s costs of and incidental to the application in a case for interim property provision filed on 10 July 2015 except for the wife’s costs of appearance on 24 July 2015 together with costs of and incidental to the present costs application with such costs to be as agreed within two months from the date of these orders or failing agreement as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosef & Mosef (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4109 of 2014

Mr Mosef

Applicant

And

Ms Mosef

Respondent

REASONS FOR JUDGMENT

The present application for determination is an application by the wife that the husband pay her costs of and incidental to an interim hearing on 8 September 2015 in respect of which are reasons for judgement were delivered on 17 September 2015 (Mosef & Mosef (No 2) [2015] FamCA 769).
The wife’s interim application in the primary property proceedings was for the payment to her and the husband of the sum of $100,000 from the sale of a property owned by the parties at M Street, Suburb N New South Wales.
The background circumstances to the application are more fully set out in the reasons for judgment referred to above.
The wife who was wholly successful in interim application seeks an order against the husband that he pay her costs on an indemnity basis. Her application for indemnity costs is, it appears, substantially founded on the fact that she was wholly successful and that she had put to the husband prior to the hearing an offer…

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.

Continue reading Mosef and Mosef (No 3)

Details

AGLC: Mosef and Mosef (No 3) [2015] FamCA 1035
Case: [2015] FamCA 1035
Decision Date: 25 November 2015

CaseChat Overview and Summary

The case of *Mosef and Mosef (No 3)* concerned an application for interim property provision. The dispute was before Foster J of the Federal Circuit Court of Australia.

The primary legal issue before the court was the determination of costs associated with an interim property provision application.

Foster J ordered that the husband pay the wife's costs of and incidental to the application for interim property provision filed on 10 July 2015. This order excluded the wife's costs of her appearance on 24 July 2015. Additionally, the husband was ordered to pay the costs of and incidental to the present costs application. These costs were to be agreed upon by the parties within two months of the court's orders, or assessed by the court if agreement could not be reached.

Orders

Orders of the court

That the husband pay the wife’s costs of and incidental to the application in a case for interim property provision filed on 10 July 2015 except for the wife’s costs of appearance on 24 July 2015 together with costs of and incidental to the present costs application with such costs to be as agreed within two months from the date of these orders or failing agreement as assessed.

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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