Rory and Rory (Costs) - [2008] FamCA 426

FAMILY COURT OF AUSTRALIA

RORY & RORY (COSTS) [2008] FamCA 426

FAMILY LAW – COSTS – Costs inter party – whether wife should be ordered to pay husband’s costs of property proceedings- Indemnity costs and proportional costs
Family Law Act 1975 (Cth) s117

Woodley & Time and Anor[2008] FamCA 162
Addison & Lahey (inter party costs) [2006] FamCA 1168
Oriolo and Oriolo (1985) FLC 91-653
Weir & Weir (1993) FLC 92-338
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225

APPLICANT: Mr Rory

RESPONDENT: Mrs Rory

FILE NUMBER: HBF 533 of 2005

DATE DELIVERED: 18 June 2008

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 14 May 2008
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon S.C.

SOLICITOR FOR THE APPLICANT: Murdoch Clarke

COUNSEL FOR THE RESPONDENT: Mr Trezise

SOLICITOR FOR THE RESPONDENT: Dobson Mitchell & Allport
Orders
1.The wife pay to the husband one half of the husband’s legal costs of the property proceedings as and from 31 January 2008 up to and including the date of final orders on 20 March 2008, such costs to be determined on a party/party basis;
2.The wife pay to the husband one half of the husband’s legal costs of the application in a case for costs orders, such costs to be determined on a party/party basis. Such costs to exclude the attendance by Senior Counsel on a mention on 14 April 2008.
3.The costs payable pursuant to this order are to be agreed between the parties or as otherwise determined under the Rules of this Court and in that regard time be extended for the filing of a Bill Costs for a period of ninety (90) days from the date of these orders.
4.These proceedings are otherwise removed from the list of cases requiring determination.
5.All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered same.
IT IS CERTIFIED
6.Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Rory & Rory (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART
FILE NUMBER: HBF 533 of 2005

MR RORY
Applicant
And

MRS RORY
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.This is an application by the husband for an order that the wife pay his legal costs arising out of a hearing of property proceedings between the parties on the 28, 29 February 2008 and the 3, 4 & 5 March 2008 in circumstances where reasons were delivered (“the reasons”) and final orders in made on 20 March 2008. The husband additionally sought an order for costs of the application in a case for costs.
2.The applications were initially listed before me on 14 April 2008 at which time Senior Counsel for the husband appeared…

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 Rory and Rory (Costs)

Details

AGLC: Rory and Rory (Costs) [2008] FamCA 426
Case: [2008] FamCA 426
Decision Date: 18 June 2008

CaseChat Overview and Summary

This matter concerned an application for costs orders following property proceedings between a husband and wife. The proceedings were heard by Benjamin J in the Family Court of Australia.

The primary legal issue before the Court was the extent to which one party should bear the costs of the other, specifically in relation to the property proceedings and a subsequent application for costs orders. The Court was required to determine the appropriate apportionment of legal costs and whether the engagement of Senior Counsel for a particular mention was reasonable.

Benjamin J ordered that the wife pay to the husband one half of the husband’s legal costs of the property proceedings from 31 January 2008 until the final orders on 20 March 2008, and one half of the husband’s legal costs for the application for costs orders, excluding the attendance of Senior Counsel on a mention on 14 April 2008. These costs were to be determined on a party/party basis. The Court extended time for the filing of a Bill of Costs for ninety days and certified that the engagement of Senior Counsel for the mention was reasonable pursuant to Rule 19.50 of the Family Law Rules 2004. The proceedings were otherwise removed from the list, and all subpoenaed documents and exhibits were to be returned.

Orders

Orders of the court

1. The wife pay to the husband one half of the husband’s legal costs of the property proceedings as and from 31 January 2008 up to and including the date of final orders on 20 March 2008, such costs to be determined on a party/party basis;

2. The wife pay to the husband one half of the husband’s legal costs of the application in a case for costs orders, such costs to be determined on a party/party basis. Such costs to exclude the attendance by Senior Counsel on a mention on 14 April 2008.

3. The costs payable pursuant to this order are to be agreed between the parties or as otherwise determined under the Rules of this Court and in that regard time be extended for the filing of a Bill Costs for a period of ninety (90) days from the date of these orders.

4. These proceedings are otherwise removed from the list of cases requiring determination.

5. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered same.

IT IS CERTIFIED

6. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.