Oliver & Oliver (Costs) - [2011] FamCAFC 3

FAMILY COURT OF AUSTRALIA

OLIVER & OLIVER (COSTS)

[2011] FamCAFC 3

FAMILY LAW - APPEAL – Costs – Where there were errors made by the Federal Magistrate – Costs certificates issued to both parties in respect of the appeal against the costs orders.

FAMILY LAW - APPEAL – Costs – Where the wife was wholly successful in the appeal – Where the wife provided the husband with “ample” opportunity to resolve the appeal in terms no less favourable then what was ultimately ordered – Where if the husband had accepted the offer there would have been no need for written submissions regarding the costs of the wife’s appeal from either party – Where the husband is in a superior financial position – Where the husband’s rejection of the offers was imprudent – The respondent husband to pay the wife’s costs and incidental to the written submissions in relation to costs of the appeal on an indemnity basis.

Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Proceedings (Costs) Act 1981 (Cth)
Uniform Civil Procedure Rules 1999

Browne v Green (2002) FLC 93-115
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Collins and Collins (1985) FLC 91-603
Harris and Harris (1991) FLC 92-254
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR
JEL v DDF [2001] FamCA 907
Jones & Anor v Millward & Anor [2005] QCA 76
Penfold v Penfold (1980) 144 CLR 311
White & White [2008] FamCAFC 147.
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029

APPELLANT:

Ms Oliver

RESPONDENT:

Mr Oliver

FILE NUMBER:

BRC

7484

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

19 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

May J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 October 2009

LOWER COURT MNC:

[2010] FMCAfam 220

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Cameron
SOLICITOR FOR THE APPELLANT:	Hillhouse Burrough McKeown Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Williams
SOLICITOR FOR THE RESPONDENT:	Romans & Romans Lawyers

Orders

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the costs orders.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the costs orders.
The respondent husband…

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 Oliver & Oliver (Costs)

Details

AGLC: Oliver & Oliver (Costs) [2011] FamCAFC 3
Case: [2011] FamCAFC 3
Decision Date: 19 January 2011

CaseChat Overview and Summary

The case of Oliver & Oliver involved a dispute over costs in a family law matter. The wife, the appellant, appealed against the costs orders made by the Federal Magistrate. The husband, the respondent, had also appealed against the costs orders. The Family Law Act 1975, Family Law Rules 2004, Federal Proceedings (Costs) Act 1981, and Uniform Civil Procedure Rules 1999 were the relevant legislative instruments. The wife was wholly successful in her appeal, and the court considered whether she was entitled to indemnity costs for the written submissions regarding the costs of her appeal.

The central issue before the court was whether the wife was entitled to indemnity costs for the written submissions in relation to the costs of her appeal. The court had to consider the wife's success on the appeal, whether she provided the husband with ample opportunity to resolve the appeal in terms no less favourable than what was ultimately ordered, and whether the husband's rejection of the offers was imprudent. The court also had to consider the financial positions of both parties.

The court found that the wife was wholly successful in the appeal and that she provided the husband with ample opportunity to resolve the appeal in terms no less favourable than what was ultimately ordered. The court held that if the husband had accepted the offer, there would have been no need for written submissions regarding the costs of the wife's appeal from either party. The court further found that the husband's rejection of the offers was imprudent, and that he was in a superior financial position. As a result, the court held that the husband should pay the wife's costs of and incidental to the written submissions in relation to the costs of the appeal on an indemnity basis.

The court made two costs certificates under the Federal Proceedings (Costs) Act 1981, one for the appellant and one for the respondent, in respect of the costs incurred in relation to the appeal against the costs orders. The court also ordered the respondent to pay the appellant's costs of and incidental to the written submissions in relation to the costs of the appeal on an indemnity basis.

Orders

Orders of the court

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the costs orders.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal against the costs orders.

The respondent husband pay the appellant wife’s costs of and incidental to the written submissions in relation to costs of the appeal on an indemnity basis.

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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