Stone and Stone (No 2)

Case [2013] FamCA 479


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 of 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

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

  2. 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.

  3. 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.

  4. The Court certifies for Senior Counsel.

  5. 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).

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

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

1.

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

2.

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.

3.

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.

4.

The Court certifies for Senior Counsel.

5.

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

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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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