Stopford Malloy & Malloy (Costs) - [2018] FamCAFC 6

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY AND ANOR (COSTS)

[2018] FamCAFC 6

FAMILY LAW – APPEAL – COSTS – Where the wife seeks costs – Where the respondents acknowledge that they have been wholly unsuccessful with respect to their applications and that they are in a superior financial position to the wife – Where the respondents challenge the quantum of the costs sought – Where there are items which are unreasonable – Where the respondents oppose an order being made certifying the matter fit for both senior and junior counsel – Where the fact that the matter was one of practice and procedure and the applications were determined by way of written submissions does not say anything about the complexity of the same – Where an order fixing costs should be made – Costs ordered in favour of the wife in the sum of $25,500 – Matter certified fit for senior and junior counsel.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18(1)(a)

Beach Petroleum NL v Johnson (1995) 135 ALR 160
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

APPLICANT:

Ms Stopford Malloy

RESPONDENTS:

Mr Q Malloy and The Malloy Group

FILE NUMBER:

ADC

2595

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

22 January 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

In Chambers

DATE HEARD:

In Chambers by way of written submissions

JUDGMENT OF:

Thackray, Strickland and Murphy JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 February 2017

LOWER COURT MNC:

[2017] FamCA 116

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

Mr Wells QC with Mr McGinn

Piper Alderman Lawyers

SOLICITOR FOR THE RESPONDENTS:

Barnes Brinsley Shaw Lawyers

Orders

The respondents pay the applicant wife’s costs fixed in the sum of $25,500, such amount to be paid within 28 days of the date hereof.
Certify fit for senior and junior counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 15 of 2017
File Number: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Q Malloy and The Malloy Group

Respondents

REASONS FOR JUDGMENT

Introduction

On 5 October 2017 this Court made orders dismissing an application for leave to appeal and an application in an appeal filed by Mr Q Malloy and the Malloy Group (“the respondents”).
On 2…

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

Case: [2018] FamCAFC 6
Decision Date: 22 January 2018

CaseChat Overview and Summary

In the matter of Stopford Malloy & Malloy, the wife appealed the costs order of the Family Court of Australia. The primary dispute was about the costs incurred during the proceedings, with the wife seeking an award of costs against the respondents, who had been unsuccessful in their applications. The case was heard in the Family Court of Australia, which is responsible for resolving family law disputes.

The legal issues before the court included whether the respondents were liable for the wife's costs, the appropriate quantum of costs, and whether the matter was fit to be certified for both senior and junior counsel. The respondents admitted to being unsuccessful but contested the amount of costs sought, claiming some items were unreasonable. Additionally, they opposed the certification of the matter for both types of counsel, arguing that the simplicity of the procedural applications did not reflect the complexity of the matter.

The court found that the respondents were indeed liable for the wife's costs, given their complete lack of success and their superior financial position. While some costs were deemed unreasonable, the majority were justified. The court also ruled that the matter was fit for certification for both senior and junior counsel, noting that the complexity of the applications was not diminished by their resolution via written submissions. Consequently, the court ordered that the respondents pay the wife's costs in the sum of $25,500, to be paid within 28 days. Furthermore, the matter was certified fit for both senior and junior counsel.

The final orders mandated that the respondents pay the wife's costs of $25,500 within 28 days and certified the matter fit for both senior and junior counsel. The form of the order was subject to entry in the Court’s records.

Orders

Orders of the court

The respondents pay the applicant wife’s costs fixed in the sum of $25,500, such amount to be paid within 28 days of the date hereof.

Certify fit for senior and junior counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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