Stokey & Dye (No 2) - [2023] FedCFamC1A 67

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Stokey & Dye (No 2) [2023] FedCFamC1A 67

Appeal from: Dye & Dye [2022] FCWAM 102

Appeal number(s): NAA 166 of 2022

File number(s): PTW 6165 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 11 May 2023

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed – Where the first respondent seeks an order for costs – Consideration of s 117 of the Family Law Act 1975 (Cth) – Orders made for the appellant to pay the costs
of the first respondent in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) ss 90AE, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Rules of the Supreme Court 1971 (WA)

Cases cited:
Awattama & Trustee in Bankrupcy [2018] FamCA 1073

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Lenova & Lenova (Costs) [2011] FamCAFC 141

Stokey & Dye [2023] FedCFamC1A 38

Number of paragraphs: 18

Date of last submissions: 19 April 2023

Date of hearing: Heard by way of written submissions

Place: In Chambers

The Appellant: Self-represented litigant

Counsel for the First Respondent: Mr Sweetman

Solicitor for the First Respondent: KDK Family Law

The Second Respondent: Self-represented litigant
ORDERS

NAA 166 of 2022
PTW 6165 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR STOKEY

Appellant

AND:
MR DYE

First Respondent

MS DYE

Second Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

11 may 2023

THE COURT ORDERS THAT:
1.The appellant is to pay the costs of the first respondent fixed in the sum of $3,420.61.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stokey & Dye (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:

On 31 March 2023 the appeal in this matter was dismissed. The first respondent seeks an order that the appellant pay his costs fixed in the sum of $3,420.61 (as calculated in accordance with Schedule 3 to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The issue of costs is dealt with by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Generally, the parties to proceedings are to bear his or her own costs, but if the court is of the opinion that there are circumstances that justify it, the court may make such order as to costs it considers just.…

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 Stokey & Dye (No 2)

Details

AGLC: Stokey & Dye (No 2) [2023] FedCFamC1A 67
Case: [2023] FedCFamC1A 67
Decision Date

CaseChat Overview and Summary

In the case of Stokey & Dye (No 2), the appellant sought to intervene in property proceedings between the two respondents, claiming an equitable interest in the property. The case was heard in the court of appeal, where the central issue was the determination of the appellant's equitable interest in the property and whether the appeal was misconceived. The respondents argued that the appellant's claims were unfounded and that the appeal was without merit.

The court examined the legal issues, focusing on whether the appellant had indeed established an equitable interest in the property and whether the appeal was justified. The court was required to assess the validity of the appellant's claims and the appropriateness of the appeal. Furthermore, the court considered the offers of settlement made by the respondents and the overall context of the dispute.

The court found that the appellant's claims were not supported by sufficient evidence and that the appeal was indeed misconceived. The court highlighted the inappropriateness of the appeal and the offers of settlement presented by the respondents. Given these findings, the court determined that it was appropriate to order the appellant to pay the first respondent's costs in the amount claimed. The court's decision was based on the misconceived nature of the appeal and the respondents' offers of settlement.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is to be recalled that the appellant has intervened in the property proceedings between the two respondents asserting that he has an equitable interest in the property. A finding that he has such an interest does not require the application of that section.CONCLUSION Taking all these matters into account, particularly the misconceived nature of the appeal and the appropriate offers of settlement, it is just that the appellant should pay the first respondent’s costs in the amount claimed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 166 of 2022 PTW 6165 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR STOKEY Appellant
AND:	MR DYE First Respondent MS DYE Second Respondent

Appeal from:	Dye & Dye [2022] FCWAM 102
Appeal number(s):	NAA 166 of 2022
File number(s):	PTW 6165 of 2021
Judgment of:	ALDRIDGE J
Date of judgment:	11 May 2023
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed – Where the first respondent seeks an order for costs – Consideration of s 117 of the Family Law Act 1975 (Cth) – Orders made for the appellant to pay the costs of the first respondent in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) ss 90AE, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 Rules of the Supreme Court 1971 (WA)
Cases cited:	Awattama & Trustee in Bankrupcy [2018] FamCA 1073 D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 Lenova & Lenova (Costs) [2011] FamCAFC 141 Stokey & Dye [2023] FedCFamC1A 38
Number of paragraphs:	18
Date of last submissions:	19 April 2023
Date of hearing:	Heard by way of written submissions
Place:	In Chambers
The Appellant:	Self-represented litigant
Counsel for the First Respondent:	Mr Sweetman
Solicitor for the First Respondent:	KDK Family Law
The Second Respondent:	Self-represented litigant

order made by:	ALDRIDGE J
DATE OF ORDER:	11 may 2023