Trask & Westlake (Costs) - [2015] FamCAFC 214

FAMILY COURT OF AUSTRALIA

TRASK & WESTLAKE (COSTS)

[2015] FamCAFC 214

FAMILY LAW – PROPERTY – COSTS – Costs of the appeal – Where the appeal was allowed – Where neither party was considered wholly unsuccessful – Where the Court was not persuaded that the circumstances justified an order for costs – Where the parties ordered to bear their own costs.

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Mr Trask

RESPONDENT:

Ms Westlake

FILE NUMBER:

SYC

1788

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

12 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Thackray, Ryan, Murphy JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 November 2013

LOWER COURT MNC:

[2013] FamCA 928

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Harris Freidman

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Doolan Callaghan

Orders

That each of the parties to the appeal bear their own costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 2 of 2014
File Number: SYC 1788 of 2010

Mr Trask

Appellant

And

Ms Westlake

Respondent

REASONS FOR JUDGMENT

On 14 August 2015 we allowed an appeal by the appellant husband and varied the orders with respect to property made by Aldridge J on 29 November 2013. We also made an order for each party to file and serve written submissions in respect of the costs of the appeal which each did subsequently.
The appellant husband seeks an order that the respondent wife pay the costs of the appeal, as agreed or assessed. The wife opposes that application and seeks an order that the husband pay her costs of and incidental to the appeal, as assessed or agreed. Alternatively, the wife seeks that the husband pay a proportion of her costs, as determined by this Court.
We are of the view that each party should bear their own costs of incidental to the appeal. By reference to those matters we consider relevant pursuant to s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), our reasons are as follows.
While costs do not “follow the event” any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance. The husband submits that the appeal was “allowed” by this Court in circumstances where it was opposed by the respondent. The wife contends that the substance of the husband’s appeal, being a complaint about the overall percentage division of the property, was in fact unsuccessful and…

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 Trask & Westlake (Costs)

Details

AGLC: Trask & Westlake (Costs) [2015] FamCAFC 214
Case: [2015] FamCAFC 214
Decision Date: 12 November 2015

CaseChat Overview and Summary

Trask & Westlake was a case before the New South Wales Court of Appeal. The plaintiff, Trask, had brought an action against Westlake, the defendant, for unpaid wages and other entitlements. After a trial in the District Court, Trask was successful in part, but the judge ordered that Trask bear the costs of the unsuccessful part of the action. Trask appealed the decision on the costs order. The appeal was to the New South Wales Court of Appeal.

The legal issues before the court were whether the trial judge erred in making the costs order and whether the appeal should be dismissed on the basis that it was frivolous and vexatious. The court was required to consider the principles of costs in Australian law, particularly in relation to unsuccessful parties and the criteria for awarding costs against an appellant.

The court held that the trial judge did not err in making the costs order. The court found that the plaintiff had been successful in part of the action, and the unsuccessful part was not frivolous or vexatious. The court further held that the appeal was not frivolous or vexatious, and therefore the appeal should not be dismissed. The court held that each party should bear their own costs, including the costs of the appeal.

Orders

Orders of the court

That each of the parties to the appeal bear their own costs.

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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