Paviello and Paviello and Anor (No 2) - [2018] FamCA 1025

FAMILY COURT OF AUSTRALIA

PAVIELLO & PAVIELLO AND ANOR (NO. 2)

[2018] FamCA 1025

FAMILY LAW – COSTS – Costs of Third Party to a Proceeding – Conduct of parties

Family Law Act 1975 (Cth)

Bilson & Geer (Costs) [2017] FamCAFC 7
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Paviello

RESPONDENT:

Mr A Paviello

RESPONDENT:

Mr B Paviello

FILE NUMBER:

SYC

2323

2017

DATE DELIVERED:

25 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

On the papers

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

Jordan Djunja Lawyers

ADVOCATE FOR THE RESPONDENT:

Mr Baxter

SOLICITOR FOR THE RESPONDENT:

Blanchfield Nichols Partners

ADVOCATE FOR THE SECOND RESPONDENT:

Ms Parker

SOLICITOR FOR THE SECOND RESPONDENT:

Parker Law

Orders

The husband’s application for the wife to pay his costs of opposing her application filed 4 May 2018 is dismissed.
The wife’s Application in a Case filed 4 May 2018 is dismissed.
The costs application contained in the Second Respondent’s Response to an Application in a Case filed 18 May 2018 is dismissed.

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 Paviello & Paviello and Anor (No 2) 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 SYDNEY

FILE NUMBER: SYC 2323 of 2017

Ms Paviello

Applicant

And

Mr A Paviello

Respondent

And

Mr B Paviello
Second Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an Application in a Case filed by the wife Ms Paviello on 4 May 2018, seeking costs against the first and second respondents, being the husband Mr A Paviello and the husband’s brother Mr B Paviello respectively. I note that in her submissions, the wife has clarified that she seeks that the second respondent pay her costs. The wife is the applicant for final property orders which she specified in an Initiating Application filed by her on 13 April 2017.
The wife’s Application in a Case filed seeks:
That the Respondents pay the Applicant’s costs (on an indemnity basis) of and incidental to the Application in a Case heard before Justice Le Poer Trench on 12 February 2018.
Each of the respondents seek that the wife’s application be dismissed and that the wife pay the costs of each respondent for this application. The husband seeks a costs order on an indemnity basis.

Background

This matter was heard by me on an interim basis on 12 February last. The application before me was an Application in a Case 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 Paviello and Paviello and Anor (No 2)

Details

AGLC: Paviello and Paviello and Anor (No 2) [2018] FamCA 1025
Case: [2018] FamCA 1025
Decision Date: 25 October 2018

CaseChat Overview and Summary

In *Paviello and Paviello and Anor (No 2)*, the husband sought an order that the wife pay his costs of opposing her application filed on 4 May 2018. The wife's application filed on the same date was also before the court, as was a costs application made by the Second Respondent in response to the wife's application. The proceedings were heard by Le Poer Trench J.

The primary legal issue before the court was whether the wife should be ordered to pay the husband's costs of opposing her application. Ancillary to this, the court had to determine the wife's application and the costs application made by the Second Respondent.

Le Poer Trench J dismissed the husband's application for costs, the wife's application, and the Second Respondent's costs application. The court made no specific pronouncements on the underlying legal principles guiding these dismissals, beyond the implicit finding that no party had established a sufficient basis to depart from the usual costs orders in relation to the dismissed applications. The final orders reflected the dismissal of all applications before the court.

Orders

Orders of the court

The husband’s application for the wife to pay his costs of opposing her application filed 4 May 2018 is dismissed.

The wife’s Application in a Case filed 4 May 2018 is dismissed.

The costs application contained in the Second Respondent’s Response to an Application in a Case filed 18 May 2018 is dismissed.

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

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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