Strahan & Strahan (Appeal Costs)

Case [2009] FamCAFC 225

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (APPEAL COSTS) [2009] FamCAFC 225
FAMILY LAW - COSTS – Of the Appeal proceedings – s 117 (1), s 117 (2) and s 117 (2A) – Whether the order for costs should be made on an indemnity basis – Disparity in financial circumstances of the parties – Whether the husband should pay the wife’s costs of the appeal – Where the husband is in a stronger position than the wife – Where the appeal was successful – Where the husband was wholly unsuccessful in seeking that the Wife’s appeal be dismissed – Where costs should not be paid on an indemnity basis but on a party and party basis – Husband to pay the wife’s costs of the appeal
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Harris and Harris (1993) FLC 92-378
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) [2007] FamCA 1178
Munday v Bowman (1997) FLC 92-784
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77
Penfold v Penfold (1980) 144 CLR 311
Re Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 72
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187
Wenz v Archer (2008) 40 Fam LR 212
Yunghanns v Yunghanns (2000) FLC 93-029
APPELLANT WIFE: Ms Strahan
RESPONDENT HUSBAND: Mr Strahan
FILE NUMBER: ADF 228 of 2005
APPEAL NUMBER: SA 87 of 2008
DATE DELIVERED: 21 December 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Adelaide
JUDGMENT OF: Boland, Thackray & O'Ryan JJ
HEARING DATE: By way of written submissions
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 24 September 2008
LOWER COURT MNC: [2008] FamCA 905

REPRESENTATION

COUNSEL FOR THE WIFE: Mr G. Holland
SOLICITOR FOR THE WIFE: Pederick Lawyers
COUNSEL FOR THE HUSBAND: Mr Ackman QC with Ms K. Macmillan SC
SOLICITOR FOR THE HUSBAND: Robinson & Mason Pty Ltd

Orders

  1. The Respondent Husband pay the costs of the Appellant Wife of and incidental to the hearing of the appeal (SA 87 of 2008) by the Wife determined on


    14 September 2009 including the hearing of the application for costs of that appeal.

  2. The costs referred to in order 1 hereof be assessed on a party and party basis and be in an amount as agreed between the Appellant Wife and the Respondent Husband and failing such agreement within 56 days of the date of these orders as assessed by a taxing officer of the Family Court of Australia.

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

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AGLC
Strahan & Strahan (Appeal Costs) [2009] FamCAFC 225
Case
[2009] FamCAFC 225
Decision Date

CaseChat Overview and Summary

In the matter of Strahan & Strahan, the parties involved were a husband and wife who were litigating over costs incurred in the context of an appeal. The case was heard by the Family Court of Australia. The wife, as the appellant, sought to recover costs associated with the appeal and an application for costs of that appeal, which had been heard on 14 September 2009.

The primary legal issue before the court was the allocation of costs related to the appeal. The court had to determine whether the husband, as the respondent, should be ordered to pay the costs of the appeal and the application for costs, and if so, the manner in which these costs should be assessed and paid. The court also needed to decide on the appropriate procedural steps to be taken if the parties could not agree on the amount of the costs.

The court ruled that the husband should bear the costs of the appeal and the application for costs. The costs were to be assessed on a party and party basis, meaning that each party would be responsible for their own costs. The court mandated that the parties were to agree on the amount of costs within 56 days of the date of the orders. If the parties could not reach an agreement, the costs were to be assessed by a taxing officer of the Family Court of Australia. This decision ensured that the financial burden of the appeal and the application for costs was appropriately allocated between the parties, while also providing a clear process for resolving any disagreements about the amount of costs.

Orders

Orders of the court

1.

The Respondent Husband pay the costs of the Appellant Wife of and incidental to the hearing of the appeal (SA 87 of 2008) by the Wife determined on

14 September 2009 including the hearing of the application for costs of that appeal.

2.

The costs referred to in order 1 hereof be assessed on a party and party basis and be in an amount as agreed between the Appellant Wife and the Respondent Husband and failing such agreement within 56 days of the date of these orders as assessed by a taxing officer of the Family Court of Australia.

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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