Tritton and Poyzer (No 2) - [2011] FamCA 713

FAMILY COURT OF AUSTRALIA

TRITTON & POYZER (NO 2)

[2011] FamCA 713

FAMILY LAW - COSTS – between parties – application by the wife seeking costs on an indemnity basis – application by the husband seeking a portion of his costs – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – where the wife alleges that the husband failed to make full and frank disclosure – where the husband alleges that some issues agitated by the wife at trial were unnecessary – where neither the husband or wife were wholly unsuccessful in the proceedings – where the circumstances justify the making of a costs order in favour of the wife – orders that the husband pay a portion of the wife’s costs – husband’s application dismissed.

Family Law Act 1975 (Cth) s117
Family Law Rules 2004 rr 1.04, 1.05, 1.06, 1.07 & 1.08

D & D (Costs) (No 2) (2010) FLC 93-435
Kohan & Kohan (1993) FLC 92-340
Oriolo & Oriolo (1985) FLC 91-653
Rouse & Rouse (1981) FLC 71-073
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
Z (a solicitor) & Limousin (2010) FLC 93-433
ZH & N [2005] FamCA 828

APPLICANT:

Ms Tritton

RESPONDENT:

Mr Poyzer

FILE NUMBER:

ADF

1063

2001

DATE DELIVERED:

8 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

27 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

City East Legal

COUNSEL FOR THE RESPONDENT:

Ms Pyke, QC

SOLICITOR FOR THE RESPONDENT:

Randle & Taylor

Orders

The husband pay to the wife the sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] on account of her costs, such sum to be paid within three [3] months.

IT IS NOTED that publication of this judgment under the pseudonym Tritton & Poyzer (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

Ms Tritton

Applicant

And

Mr Poyzer

Respondent

REASONS FOR JUDGMENT

Introduction

Both the applicant wife Ms Tritton and the respondent husband Mr Poyzer seek orders against the other for costs of the Family Court of Australia property settlement proceedings.

Orders sought

By Application in a Case filed on 3 September 2010, the wife sought orders:
“That the husband do pay the wife’s costs of and incidental to these proceedings (financial matters only) on an indemnity basis in such amount as the Court shall determine.”
On page seven of the cost submission filed on behalf of the wife on 7 March 2011 (document 412) the orders sought by the wife are as follows:
“The husband pay the wife’s costs of and incidental to these proceedings (financial matters only) on an indemnity basis and in the amount of $995,764 or otherwise as the Court shall determine.”
On 13 October 2010, the husband filed an Application in a Case which sought orders:
“1.That the wife do pay all costs…

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 Tritton and Poyzer (No 2)

Details

AGLC: Tritton and Poyzer (No 2) [2011] FamCA 713
Case: [2011] FamCA 713
Decision Date: 8 September 2011

CaseChat Overview and Summary

In *Tritton and Poyzer (No 2)*, the Family Court of Australia considered competing applications for costs between the husband and wife. The wife sought costs on an indemnity basis, alleging the husband had failed to make full and frank disclosure. Conversely, the husband sought a portion of his own costs, arguing that certain issues raised by the wife at trial were unnecessary.

The central legal issue before Dawe J was whether the circumstances of the case justified making a costs order, and if so, in what form. This required the court to consider the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), particularly in light of the parties' respective allegations regarding disclosure and the conduct of the litigation. The court also had to determine if either party had been wholly unsuccessful, which would influence the approach to costs.

Dawe J found that the circumstances did justify making a costs order in favour of the wife. While neither party was wholly unsuccessful, the court determined that the husband's conduct warranted a costs order against him. Consequently, the husband was ordered to pay a portion of the wife's costs. The husband's own application for a portion of his costs was dismissed. The husband was ordered to pay the wife the sum of $200,000 on account of her costs within three months.

Orders

Orders of the court

The husband pay to the wife the sum of TWO HUNDRED THOUSAND DOLLARS [$200,000.00] on account of her costs, such sum to be paid within three [3] months.

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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