POELS & POELS - [2020] FamCA 860

FAMILY COURT OF AUSTRALIA

POELS & POELS

[2020] FamCA 860

FAMILY LAW – COSTS – Between parties – Where the husband was wholly unsuccessful in resisting the wife’s application for exclusive occupation – Wife’s costs of application granted at scale.

Family Law Act 1975 (Cth) s 117

Banks & Banks (1973) NSW R233
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Dean & Dean (1977) FLC 98-213
Nada & Nettle (Costs) (2014) FLC 93-612
Phillips & Hansford [2020] FamCAFC 28
Rankin & Rankin (No. 3) [2019] FamCAFC 133
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Worth & Worth and ICL (No. 2) [2019] FamCAFC 126

APPLICANT:

Mr Poels

RESPONDENT:

Ms Poels

FILE NUMBER:

SYC

8084

2019

DATE DELIVERED:

14 October 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

In Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Reeve

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Ms Petrie

SOLICITOR FOR THE RESPONDENT:

Lighthouse Law Group

Orders

The husband is pay the wife’s costs in the amount of $8,860.00 with such sum to be paid as follows:
(a) $3,003.33 being Counsel’s fees within 7 days;
(b) The remainder to be deducted from the husband’s share of the final property settlement.

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 Poels & Poels 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 8084 of 2019

Mr Poels

Applicant

And

Ms Poels

Respondent

REASONS FOR JUDGMENT

This is a costs application made by the wife matter of Poels.
The wife is the respondent in the substantive proceedings for property settlement and the husband is the applicant.
The wife’s costs application follows a successful application for exclusive occupation filed by the wife on 28 April 2020 and heard on 15 May 2020. Ms Petrie of Counsel appeared for the wife and Mr Reeve appeared for the husband at the hearing.
Counsel for the wife, Ms Petrie, made an application for costs immediately following my ex tempore oral judgment on 15 May 2020 and I heard her submissions at that time.
I then made directions for the wife’s solicitors to provide to the husband’s solicitors the quantum of their costs sought within 5 days, with the husband to respond to the wife’s costs application by way of written submissions, which has been done.
I have had regard to the following in relation to this costs application:
a)Ms Petrie’s oral submissions on…

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 POELS & POELS

Details

AGLC: POELS & POELS [2020] FamCA 860
Case: [2020] FamCA 860
Decision Date: 14 October 2020

CaseChat Overview and Summary

In the matter of *Poels & Poels*, Henderson J of the Federal Circuit and Family Court of Australia was required to determine the quantum of costs to be paid by the husband to the wife. The dispute concerned the wife's entitlement to costs following proceedings related to property settlement.

The primary legal issue before the Court was the assessment and apportionment of the wife's legal costs. Specifically, the Court needed to determine the total amount payable and the method by which the husband would satisfy this obligation.

Henderson J ordered that the husband pay the wife's costs in the sum of $8,860.00. This amount was to be paid in two parts: $3,003.33 for counsel's fees, due within seven days, and the remaining balance to be deducted from the husband's share of the final property settlement. The final form of the order was contingent upon its formal entry into the Court's records.

Orders

Orders of the court

The husband is pay the wife’s costs in the amount of $8,860.00 with such sum to be paid as follows:

(a) $3,003.33 being Counsel’s fees within 7 days;

(b) The remainder to be deducted from the husband’s share of the final property settlement.

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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