Pillai and Doshi (Costs) - [2014] FamCAFC 168

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (COSTS)

[2014] FamCAFC 168

FAMILY LAW – APPEAL – COSTS – Where the wife seeks an order that the husband pay her costs of two appeals – Where the husband opposes any such order – Where the husband seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals – Where the husband was almost wholly unsuccessful in the appeals brought by him – Where the husband has been unreasonable in the manner in which he has prepared and presented his appeals – Where a costs order is made against the husband.

Child Support (Registration and Collection) Act 1988 (Cth) s 72A

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Federal Proceedings (Costs) Act 1981 (Cth) s 9

Family Law Rules (2004) r 22.22(2)

APPELLANT:

Mr Pillai

RESPONDENT:

Ms Doshi

FILE NUMBER:

DGC

664

2007

APPEAL NUMBERS:	SOA	22	of	2011
SOA	30	of	2011

DATE DELIVERED:

10 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Finn and Johnston JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

3 February 2011

8 March 2011

LOWER COURT MNCS:

[2011] FamCA 36
[2011] FamCA 165

REPRESENTATION

APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Perry Weston

Orders

That the appellant pay the respondent’s costs of and incidental to Appeal No SOA 22 of 2011 and Appeal No SOA 30 of 2011 as agreed and in default of agreement as assessed.
That such costs are to be paid from the monies held in trust payable to the appellant pursuant to the orders made on 8 March 2011 (but subject to Orders (2) and (3) of the orders of 26 July 2011), after payment therefrom the sum of $3617.24 to the Child Support Registrar in accordance with the notice pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) dated 20 November 2012.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Numbers: SOA 22 of 2011
SOA 30 of 2011

File Number: DGC 664 of 2007

Mr Pillai

Appellant

And

Ms Doshi

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Doshi (“the wife”) is seeking an order that Mr Pillai (“the husband”) pay her costs of two appeals, brought by him in which he was almost wholly unsuccessful. The husband opposes any such order. He seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals as well as various costs unrelated to the appeal, including costs in proceedings in the County Court of Victoria.

Background

On 25 October 2012 this Court made orders dismissing an appeal (Appeal No SOA…

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 Pillai and Doshi (Costs)

Details

AGLC: Pillai and Doshi (Costs) [2014] FamCAFC 168
Case: [2014] FamCAFC 168
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia was tasked with determining the appropriate allocation of costs between the parties following two unsuccessful appeals brought by the husband against parenting and property orders made by the Family Court. The wife sought an order that the husband pay her costs for the appeals, while the husband opposed this and sought an order for the wife to pay his costs. The central legal issue was whether it was just for the Court to make a costs order against the husband, given his almost total lack of success in the appeals and his conduct in preparing and presenting them.

The Court found that the husband's conduct in preparing and presenting the appeals was unreasonable, as evidenced by the excessive number of grounds of appeal and the length of the written submissions, which made it difficult and costly for the wife to respond. The husband was almost wholly unsuccessful in both appeals, achieving only minor variations to the orders. The Court considered the financial circumstances of both parties, with the wife's income being significantly lower than the husband's, and noted that the husband had a history of failing to comply with orders, including child support orders.

The Court concluded that it was just to make a costs order against the husband, ordering him to pay the wife's costs of the appeals. These costs were to be paid from the funds held in trust for the husband, after first satisfying a child support debt. The Court rejected the husband's request for a costs certificate, as it was not applicable given that the Court had already ordered costs against him.

The Court's decision highlights the importance of reasonable conduct in legal proceedings and the potential consequences of unreasonable behaviour, including the imposition of costs orders against the offending party.

Orders