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Stone and Stone (No 2)

Stone and Stone (No 2)

Case [2013] FamCA 479 19 June 2013

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FAMILY COURT OF AUSTRALIA

STONE & STONE (NO. 2)

[2013] FamCA 479

FAMILY LAW – PROPERTY – COSTS – Where the primary proceedings were between the husband and wife to a marriage seeking orders for property settlement under s 79 of the Family Law Act 1975 (Cth) – Where the wife now seeks an order that the husband pay her costs of and incidental to the primary proceedings on an indemnity basis or on a party and party basis – Consideration of factors set out in
s 117(2A) of the Family Law Act 1975 (Cth).
FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the husband has lodged an appeal against the Orders and judgment made in the primary proceedings – Where the husband seeks an adjournment of the wife’s application for costs until his appeal has been determined by the Full Court.
FAMILY LAW – STAY OF PROCEEDINGS – Where the husband seeks a stay of the Orders made in the primary proceedings – Whether to grant a stay – Whether the wife should be entitled to the fruits of the judgment in the primary proceedings – Whether the failure to grant a stay would render the husband’s appeal nugatory – Whether the parties would face hardship were the Court to decline to grant a stay – Consideration of the merits of the husband’s appeal.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Gould v Gould (2007) FLC 93-333
Harris and Harris (1991) FLC 92-254
Hitch & Hitch [2012] FamCAFC 124
House v The King (1936) 55 CLR 499
Forster & Forster [2013] FamCA 51
Fraser & Moedt (Unreported, Family Court of Australia, Nicholson CJ, Lindermayer and May JJ, 30 October 1997)
Pennisi and Pennisi (1997) FLC 92-744

APPLICANT:

Ms Stone

RESPONDENT:

Mr Stone

FILE NUMBER:

SYC

6953

2009

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell, SC

SOLICITOR FOR THE APPLICANT:

Diana Perla & Associates

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITOR FOR THE RESPONDENT:

McDonell Milne Toltz Family Lawyers

Orders

The application of the husband for the adjournment of the wife’s application for costs is dismissed.
The husband is to pay the wife’s costs of and incidental to the proceedings from 10 September 2010 to the day before the commencement of the hearing on

21 February 2013 as agreed or assessed.
The husband is to pay the wife’s costs of and incidental to the hearing of the matter on an indemnity basis as agreed or assessed.
The Court certifies for Senior Counsel.
The application of the husband for a stay of proceedings on the Orders of this Court made on 18 April 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone and Stone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT…

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 Stone and Stone (No 2)

Details

AGLC: STONE & STONE (NO. 2) [2013] FamCA 479
Case: [2013] FamCA 479
Decision Date: 19 June 2013

CaseChat Overview and Summary

In the matter of *Stone and Stone (No 2)*, Justice Fowler of the Family Court of Australia considered an application by the wife for costs and an application by the husband for a stay of previous orders. The dispute concerned the wife's application for costs following earlier proceedings, and the husband's subsequent attempt to halt the enforcement of those orders.

The primary legal issues before the Court were whether the husband's application for an adjournment of the wife's costs application should be granted, and whether the husband's application for a stay of the Court's orders made on 18 April 2013 should be dismissed. The Court was also required to determine the appropriate basis for awarding the wife's costs.

Justice Fowler dismissed the husband's application for an adjournment of the wife's costs application, indicating that the matter was ready for determination. The Court then ordered that the husband pay the wife's costs of and incidental to the proceedings from 10 September 2010 until the day before the hearing commenced on 21 February 2013, on a standard basis. Furthermore, the husband was ordered to pay the wife's costs of the hearing itself on an indemnity basis, reflecting the Court's view on the conduct of the proceedings. The Court also certified the matter as fit for Senior Counsel. Finally, the husband's application for a stay of the Court's orders made on 18 April 2013 was dismissed.

Orders

Orders of the court

The application of the husband for the adjournment of the wife’s application for costs is dismissed.

The husband is to pay the wife’s costs of and incidental to the proceedings from 10 September 2010 to the day before the commencement of the hearing on

21 February 2013 as agreed or assessed.

The husband is to pay the wife’s costs of and incidental to the hearing of the matter on an indemnity basis as agreed or assessed.

The Court certifies for Senior Counsel.

The application of the husband for a stay of proceedings on the Orders of this Court made on 18 April 2013 is dismissed.

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.

Citations

AGLC Citation

STONE & STONE (NO. 2) [2013] FamCA 479

Most Recent Citation

STONE & STONE [2013] FamCAFC 134

Cases citing this decision · 5 of 5 shown

Eldred and Eldred (No 2)
[2015] FamCA 188 Para 9

…t senior counsel was not necessary in this case. He began quoting [74] of Stoian , set out above. Mr Robinson also referred to Stone and Stone (No 2) [2013] FamCA 479, wherein Fowler J discussed why the matter was appropriate for senior counsel. In that case, the property pool was significantly larger than that at…
Stone & Stone
[2015] FamCAFC 18

…[2013] FamCA 270 [2013] FamCA 479…
Bagala and Sacco
[2013] FCCA 1330 Para 3

…g Stone & Stone[4] at [64]; Aldridge & Keaton (Stay Appeal)[5] at [18]; Jackson & Balen[6] at [28]; and Senior & Anderson (No 2)[7] at [31]-[40]. [4] [2013] FamCA 479 [5] [2009] FamCAFC 106 [6] [2009] FamCAFC 131 [7] [2012] FamCA 880…
NORTON & LOCKE
[2013] FCCA 1259 Para 4

…e set out in various authorities, including Stone & Stone[3] at [64]; Aldridge & Keaton (Stay Appeal[4]) at [18] and Jackson & Balen[5] at [28]). [3] [2013] FamCA 479 [4] [2009] FamCAFC 106 [5] 2009] FamCAFC 131…
STONE & STONE
[2013] FamCAFC 134

…[2013] FamCA 479…

View all 5 citing cases →

Cases cited in this decision · 12 of 12 shown

Forster and Forster (No.3)
[2013] FamCA 51 Para 3

…In Forster & Forster [2013] FamCA 51, Strickland J considered an application for a stay pending determination of an appeal and summarised the principles to be applied when considering whether to grant a stay as follows: 13.In terms of the principles to be applied in stay applications, they are well settled and I r…
Aldridge & Keaton (Stay Appeal)
[2009] FamCAFC 106 Para 3

…of the principles to be applied in stay applications, they are well settled and I refer to the Full Court decision in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. In paragraph 18 of that decision the Full Court reiterated and summarised the relevant principles as follows: 18.The principles to be applied in det…
Cross v Beaumont
[2007] FamCA 123 Para 4

…a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct is determined to warrant an order ( Cross v Beaumont (2008) 39 Fam LR 389).…
Gould v Gould
[2005] NSWSC 914 Para 12

…ot only but including the fact that the non-disclosure referred to in the judgment, entitled the trial judge to take a “ robust approach ”: see Gould v Gould (2007) FLC 93-333 at [26].…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 3

…the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 3

…espect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986)…
Mallet v Mallet
[1984] HCA 21 Para 4

…ies may justify an order for costs in favour of the party with fewer financial resources ( Marinko v Marinko (1983) FLC 91-307, Mallet v Mallet (1984) 156 CLR 605). Also relevantly, the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct is d…
Penfold v Penfold
[1980] HCA 4 Para 4

…the application of that section, the Court notes that the Full Court in Hitch & Hitch [2012] FamCAFC 124 stated as follows: 53.In Penfold and Penfold (1980) 144 CLR 311, the High Court described the application and purpose of this section. It was said at 315: Sub-section (2) requires a finding of justifying circumsta…
House v R
[1936] HCA 40 Para 12

…The Court does not accept that no or inadequate reasons were given, nor does it, having regard to the principles of House v The King (1936) 55 CLR 499, see an argument being successful in relation to the exercise of the Court’s discretion, and that is by reason of not only but including the fact that the non-disclos…
Hitch & Hitch
[2012] FAMCAFC 124 Para 4

…f section 117(2A) and the authorities which guide this Court in the application of that section, the Court notes that the Full Court in Hitch & Hitch [2012] FamCAFC 124 stated as follows: 53.In Penfold and Penfold (1980) 144 CLR 311, the High Court described the application and purpose of this section. It was said at…
House v The King
63 WN 176 Para 12

…The Court does not accept that no or inadequate reasons were given, nor does it, having regard to the principles of House v The King (1936) 55 CLR 499, see an argument being successful in relation to the exercise of the Court’s discretion, and that is by reason of not only but including the fact that the non-disclosure re…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 3

…ings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN &…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 5)