Panshin and Farmer (Costs) - [2013] FamCAFC 29

FAMILY COURT OF AUSTRALIA

PANSHIN & FARMER (COSTS)

[2013] FamCAFC 29

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the application for leave to appeal had been wholly unsuccessful ─ Where the respondent sought costs on a indemnity on the basis ─ Where the Court did not consider that the discretion to award indemnity costs should be enlivened ─ Where nothing to which the Court was referred or which emerged during the determination of the application for leave to appeal demonstrated either an ulterior motive, an absence of bona fides, or conduct which, consistent with the authorities, advanced the respondent’s claim for indemnity costs ─ Where the Court was not disinclined to form the opinion that the circumstances justified an order for costs in favour of the respondent in reliance upon the applicant’s financial circumstances ─ Applicant ordered to pay the respondent’s costs of and incidental to the application for leave to appeal on a party and party basis.

Family Law Act 1975 (Cth) s 117(2A)

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

APPELLANT:

Ms Panshin

RESPONDENT:

Ms Farmer

FILE NUMBER:

SYC

2252

2011

APPEAL NUMBER:

101

2012

DATE DELIVERED:

15 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 July 2012

8 October 2012

LOWER COURT MNC:

[2012] FMCAfam 691
[2012] FMCAfam 1107

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Winfield

SOLICITOR FOR THE APPELLANT:

Jacqui Griffin Solicitor & Attorney

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Stidwell Solicitors

Orders

The applicant pay the respondent’s costs of and incidental to the application for leave to appeal as agreed or assessed on a party and party basis.
Enforcement of order 1 hereof be stayed pending the final determination of proceedings for settlement of property between the applicant and the respondent.
The respondent’s entitlement pursuant to order 1 be and remain a charge upon such interest of the applicant in the property of the applicant and respondent as the applicant is determined to have in such property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Panshin & Farmer (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 101 of 2012

File Number: SYC 2252 of 2011

Ms Panshin

Appellant

And

Ms Farmer

Respondent

REASONS FOR JUDGMENT

COSTS

Consequent upon the Court delivering judgment in this application on 30 November 2012, and pursuant to directions then made, on 13 December 2012 Counsel for Ms Farmer, the successful respondent to the application, filed submissions in support of her application for costs. On 7 January 2013 Counsel for Ms Panshin, the unsuccessful applicant for leave to appeal, filed…

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 Panshin and Farmer (Costs)

Details

AGLC: Panshin and Farmer (Costs) [2013] FamCAFC 29
Case: [2013] FamCAFC 29
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Panshin (the appellant) appealed against an order made by the Federal Magistrates Court, with Ms Farmer (the respondent) opposing the appeal. The appeal was wholly unsuccessful, leading to the respondent's application for costs. The respondent sought indemnity costs, arguing that the appeal lacked a realistic prospect of success and that the appellant's financial circumstances justified such an award. The appellant, on the other hand, opposed the application for costs, emphasising her financial difficulties.

The primary legal issue was whether the court should award indemnity costs to the respondent. This required consideration of the appellant's unsuccessful appeal, the presence of any ulterior motives, and the appellant's financial circumstances. The court also needed to determine if the appeal was brought without a bona fide basis or if there were any actions that warranted indemnity costs under established legal principles.

The court found that while the appeal was unsuccessful, it was not entirely without merit as the appellant raised substantive issues and had some basis for her challenges. However, the court concluded that the appeal was not likely to succeed and was therefore not bona fides. The court did not find any ulterior motives or conduct by the appellant that warranted indemnity costs. The court acknowledged the appellant's financial difficulties but determined that this alone was not sufficient to justify indemnity costs. Instead, the court opted to order the appellant to pay the respondent's costs on a party and party basis, staying enforcement of this order pending the final determination of property settlement proceedings.

The court's final orders required the appellant to pay the respondent's costs of and incidental to the application for leave to appeal on a party and party basis. Enforcement of this order was stayed pending the final determination of the proceedings for settlement of property between the parties. The respondent's entitlement to costs was to remain a charge on the appellant's interest in the property of the parties.

Orders