Family Court Of Australia
| TIAN & FONG (COSTS) | [2011] FamCAFC 29 |
| FAMILY LAW - COSTS – Costs of the appeal – Where the Husband was wholly unsuccessful in the appeal proceedings – Where the Husband should pay the Wife’s costs of the appeal proceedings but not on an indemnity basis – Costs awarded on a party and party basis |
| Colgate Palmolive Co and Another 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 1 |
| Federal Proceedings (Costs) Act 1981 (Cth) Family Law Act 1975 (Cth) |
| APPELLANT WIFE: | MS TIAN |
| RESPONDENT HUSBAND: | MR FONG |
| FILE NUMBER: | MLC | 923 | of | 2008 |
| APPEAL NUMBER: | SA | 89 | of | 2009 |
| DATE DELIVERED: | 24 February 2011 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | Written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 October 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 856 |
Representation
| COUNSEL FOR THE APPELLANT WIFE: | Mr D. Mort |
| SOLICITOR FOR THE APPELLANT WIFE: | Westminster Lawyers |
COUNSEL FOR THE RESPONDENT HUSBAND: | Ms M. Vohra |
| SOLICITOR FOR THE RESPONDENT HUSBAND: | Robinson Gill Lawyers |
Orders
The Respondent Husband pay the Appellant Wife’s costs of the appeal proceedings determined by judgment pronounced on 15 December 2010.
The costs payable pursuant to Order (1) hereof are to be as agreed between the parties or as otherwise determined under the Rules of Court and in that regard time be extended for the filing of a Bill of Costs for a period of 60 days from the date of these Orders.
The costs referred to in Order (1) hereof be assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Tian & Fong (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 89 of 2009
File Number: MLC 923 of 2008
| MS TIAN |
Appellant Wife
And
| MR FONG |
Respondent Husband
Reasons For Judgment
Introduction
Before me for determination is an application for costs in relation to the successful appeal by Ms Tian (“the Wife”) against a property settlement order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Federal Magistrate O’Sullivan on 8 October 2009. The Respondent to the appeal and to this application is Mr Fong (“the Husband”).
The Wife seeks the following orders:
(1) Within 30 days, the Respondent Husband pay to the Appellant Wife’s solicitors, Westminister Lawyers all her…
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- Case
- [2011] FamCAFC 29
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the Respondent, Fong, should bear the costs of the appeal proceedings initiated by the Appellant, Tian. This decision required the court to consider the principles governing the allocation of costs in family law cases, particularly those related to appeals. The court was also tasked with determining the appropriate manner of assessing and quantifying these costs, including whether the costs should be shared or borne solely by one party. Additionally, the court had to decide on the timeframe for the submission of a Bill of Costs.
In rendering its decision, the court ruled that the Respondent, Fong, should pay the Appellant, Tian’s, costs of the appeal proceedings. The court emphasised the importance of ensuring that the financial burden of litigation is allocated fairly, taking into account the principles of justice and the conduct of the parties. The court also specified that the costs should be assessed on a party and party basis, meaning that each party would bear their own costs. Furthermore, the court extended the time for the filing of a Bill of Costs to allow the parties to agree on the quantum of costs or for the matter to be determined under the Rules of Court. This extension provided flexibility in ensuring that the costs were accurately and fairly determined.
Orders
Orders of the court
1.
The Respondent Husband pay the Appellant Wife’s costs of the appeal proceedings determined by judgment pronounced on 15 December 2010.
2.
The costs payable pursuant to Order (1) hereof are to be as agreed between the parties or as otherwise determined under the Rules of Court and in that regard time be extended for the filing of a Bill of Costs for a period of 60 days from the date of these Orders.
3.
The costs referred to in Order (1) hereof be assessed on a party and party basis.
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.