Pilot and Pilot - [2011] FamCA 243

FAMILY COURT OF AUSTRALIA

PILOT & PILOT

[2011] FamCA 243

FAMILY COURT – COSTS – Various applications for costs orders pertaining to substantive property proceedings and costs orders on interim application – orders made in the substantive proceedings and in a number of case applications.

Family Law Act 1975 (Cth) ss 117(2), 117(2A), 117(2A)(c), 117(2A)(f), 117AA, 118

C and B [2006] FamCA 513
Greedy v Greedy (1982) FLC 91-250
Woodley v Thyme and Anor [2008] FamCA 162
Oliver v Oliver (No. 2) [2010] Fam CAFC 174

APPLICANT:

Ms Pilot

RESPONDENT:

Mr Pilot

FILE NUMBER:

HBF

1990

1999

DATE DELIVERED:

24 June 2011

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

15 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Foster with Ms Eddington

SOLICITOR FOR THE APPLICANT:

Murdoch Clarke

COUNSEL FOR THE RESPONDENT:

Mr Gunson S.C. with Mr Murray

SOLICITOR FOR THE RESPONDENT:

Murray & Associates

Orders

The husband pay to the wife her costs, on a party/party basis, in respect of her Application in a Case for spousal maintenance, use of a car and costs litigation funding heard on 23 July 2004.
The husband pay to the wife her costs, on a party/party basis, in respect of her Application in a Case for an injunction filed 11 October 2006 and heard on 16 October 2006 and 6 November 2006.
The husband pay to the wife one half of her counsels fees and one half of instructing solicitor fees in respect of the hearing at court on 25 February 2009. Such costs to be determined in accordance with schedule 3 of the Family Law Rules 2004 (Cth), being one half of item 205 in terms of counsel and four hours at the rate set out at item 108 in respect of the instructing solicitor.
The husband pay to the wife her costs, on a party/party basis, in respect of her Application in a Case filed 20 July 2010, to re-open and adduce further evidence, which was determined on 6 October 2010. Such costs to include the wife’s affidavit, and the affidavits of her witnesses in support of that Application, the Application, perusing affidavits of the husband, his accountant and Mr M and the hearing on 6 October 2010.
The wife pay to the husband his senior counsel’s fees and his junior counsel’s fees in respect of five full days of the hearing. Such costs to be at the rate determined in accordance with schedule 3 of the Family Law Rules 2004 (Cth), being item 205 in terms of senior counsel and junior counsel, and such rate as at January 2010.
The wife pay to the husband one half of his senior counsels fees and one half of his junior counsel’s fees in respect of the hearing at court on 25 February 2009. Such costs to be determined in accordance with schedule 3 of the Family Law Rules 2004 (Cth), being one half of item 205 in terms of senior counsel and junior counsel.
The…

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 Pilot and Pilot

Details

AGLC: Pilot and Pilot [2011] FamCA 243
Case: [2011] FamCA 243
Decision Date

CaseChat Overview and Summary

In *Pilot & Pilot* [2011] FamCA 243, the Family Court of Australia considered various applications for costs orders arising from substantive property proceedings and interim applications between Ms Pilot (the wife) and Mr Pilot (the husband). The proceedings, which commenced in June 2004, were determined in November 2010, with costs applications being argued on 15 March 2011.

The court was required to determine which party should bear the costs of numerous applications made during the course of the substantive proceedings. These included applications for spousal maintenance, injunctions, litigation funding, the re-opening of evidence, and costs related to specific hearings and interim matters. The court also had to consider applications for costs made in relation to the parties' respective costs applications.

Justice Benjamin made a series of specific costs orders, requiring the husband to pay the wife's costs on a party/party basis in relation to her applications for spousal maintenance, an injunction, and to re-open the case. The husband was also ordered to pay one half of the wife's counsel and instructing solicitor fees for a hearing on 25 February 2009. Conversely, the wife was ordered to pay the husband's senior and junior counsel fees for five full days of the final hearing, and one half of his counsel fees for the 25 February 2009 hearing. The wife was also ordered to pay the husband's party/party costs in relation to his application concerning priority notices and oral applications for costs made in response to several of the wife's applications. All remaining outstanding costs applications by either party, not specifically dealt with in the orders, were dismissed. The court also noted that it was reasonable to engage senior counsel and counsel for the proceedings.

Orders