Rand and Ors & Rand - [2009] FamCAFC 70

FAMILY COURT OF AUSTRALIA

RAND AND ORS & RAND

[2009] FamCAFC 70

FAMILY LAW – APPEAL – COSTS – where the third party appellants in both appeals sought that the respondent wife pay their costs of the appeals – where the respondent wife sought that the appellants pay her costs or in the alternative she sought a costs certificate –where the third party status of the appellants does not require any special regard in applying s 117 of the Family Law Act 1975 (Cth) – where no party “wholly unsuccessful” – no justification for an order for costs – appellant to receive costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) – costs certificates under s 9 will be granted to the appellants upon receipt of an application

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)

FILE NUMBER:

SYF

2153

2001

APPEAL NUMBER:

16B

2006

1^st APPELLANT:

Mr G Rand

2^nd APPELLANT:

Mrs N Rand

3^rd APPELLANT:

GD Pty Limited

4^th APPELLANT:

C Pty Limited

1^st RESPONDENT: Ms S Rand
2^nd RESPONDENT: Mr M Rand

3rd RESPONDENT: RE Pty Limited (In Liquidation)

4^th RESPONDENT:  MI Pty Limited
5^th RESPONDENT:  Mr RMS
6^th RESPONDENT:  Mr PM
7^th RESPONDENT:  Mr WJ
8^th RESPONDENT:  S Pty Limited

9th RESPONDENT: H Pty Limited & Ms S Rand
10th RESPONDENT: Mr PL (Trustee in Bankruptcy)

APPEAL NUMBER:

16C

2006

1^st APPELLANT:

RE Pty Limited (In Liquidation)

2^nd APPELLANT:	Mr RMS
RESPONDENT:	Ms S Rand

DATE DELIVERED:

4 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Finn, May and Boland JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 January 2006

LOWER COURT MNC:

[2006] FamCA 1530

REPRESENTATION (EA 16B of 2006)

COUNSEL FOR THE APPELLANTS:

Mr Aldridge SC

SOLICITOR FOR THE APPELLANTS:

Watts McCray

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE 1^ST RESPONDENT:

Adrian Twigg & Co

REPRESENTATION (EA 16C of 2006)

COUNSEL FOR THE APPELLANTS:

Mr Aldridge SC

SOLICITOR FOR THE APPELLANTS:

NOT Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg & Co

Orders

That there be no order for costs in relation to appeals numbered EA 16B of 2006 and EA 16C of 2006.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to appeals numbered EA 16B of 2006 and EA 16C of 2006.

IT IS NOTED that publication of this judgment under the pseudonym Rand and Ors & Rand is approved pursuant to s 121(9)(g)…

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.

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Details

AGLC: Rand and Ors & Rand [2009] FamCAFC 70
Case: [2009] FamCAFC 70
Decision Date: 4 May 2009

CaseChat Overview and Summary

This appeal involves the third-party appellants, Rand and others, and the respondent wife. The central issue is the allocation of costs associated with the appeals. The respondents sought that the appellants bear the costs of the appeals, while the appellants, in turn, requested that the respondents pay their costs or, alternatively, sought a costs certificate. The matter was heard in the Family Court of Australia.

The legal issues that the court had to address pertained to the applicability of section 117 of the Family Law Act 1975 (Cth) and the Federal Proceedings (Costs) Act 1981 (Cth). Specifically, the court needed to determine whether the appellants' status as third parties required any special consideration when applying section 117 of the Family Law Act. Additionally, the court had to decide whether there was a "wholly unsuccessful" party, which would justify an order for costs, or if a costs certificate should be issued instead.

The court ruled that the third-party status of the appellants did not necessitate any special regard when applying section 117 of the Family Law Act. The court found that no party was wholly unsuccessful in the appeals, and thus, there was no justification for an order for costs. Instead, the court decided to grant the respondent wife a costs certificate under section 6 of the Federal Proceedings (Costs) Act. This certificate would allow the respondent to potentially receive costs from the Attorney-General, should she apply for it. Furthermore, the court determined that the appellants would be granted costs certificates under section 9 of the Federal Proceedings (Costs) Act upon the submission of an application.

The court's final orders were that no order for costs should be made in relation to appeals numbered EA 16B of 2006 and EA 16C of 2006. Additionally, the court granted the respondent wife a costs certificate under section 6 of the Federal Proceedings (Costs) Act. The appellants would be granted costs certificates under section 9 of the Federal Proceedings (Costs) Act upon application.

Orders

Orders of the court

That there be no order for costs in relation to appeals numbered EA 16B of 2006 and EA 16C of 2006.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to appeals numbered EA 16B of 2006 and EA 16C of 2006.

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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