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 | of | 2010 |
| APPEAL NUMBER: | EA | 2 | of | 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…
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- AGLC
- Trask & Westlake (Costs) [2015] FamCAFC 214
- Case
- [2015] FamCAFC 214
- Decision Date
CaseChat Overview and Summary
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
1.
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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