Tsay and Lou (No. 2) - [2018] FamCAFC 245

FAMILY COURT OF AUSTRALIA

TSAY & LOU (NO. 2)

[2018] FamCAFC 245

FAMILY LAW – APPEAL – COSTS – Application of costs of a discontinued appeal – Where the applicant wife earns no income except for interim spousal maintenance and does not receive social security benefits – Where the husband has numerous property and business interests – Where the husband failed to comply with directions of the Appeal Registrar – Discontinued appeal not wholly unsuccessful pursuant to s 117(2A)(e) of the Family Law Act 1975 (Cth) – Where the wife was put to unnecessary expense preparing for the appeal – Justifying circumstances for costs on a party-party basis – Costs ordered.

Family Law Act 1975 (Cth) s 117 (2A)(e)

Bant & Clayton (Costs) (2016) Fam LR 31; [2016] FamCAFC 35
Bhatt & Acharya [2017] FamCAFC 71
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Parke & the Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

APPLICANT:

Ms Tsay

RESPONDENT:

Mr Lou

FILE NUMBER:

SYC

1304

2018

APPEAL NUMBER:

2018

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

5 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 July 2018

LOWER COURT MNC:

[2018] FCCA 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Heazlewood

SOLICITOR FOR THE APPLICANT:

McLachlan Thorpe Partners

SOLICITOR FOR THE RESPONDENT:

Lawside Lawyers

Orders

That the respondent pay the applicant’s costs of the discontinued appeal in the amount of $2,729 within one (1) month of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsay & Lou (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 94 of 2018
File Number: SYC 1304 of 2018

Ms Tsay

Appellant

And

Mr Lou

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Ms Tsay (“the wife”) makes an application for costs of a discontinued appeal. The appeal was bought by Mr Lou (“the husband”) and relates to interlocutory financial orders made on 9 July 2018. Relevantly, the orders require the husband to pay spousal maintenance arrears of $13,840 and a lump sum payment for further interim spousal maintenance in the amount of $72,800, calculated at $1,400 per week for one year. The wife’s application for interim property settlement was dismissed. A suite of orders was also made which reflected the parties’ agreement about dealings with particular assets, however some of…

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 Tsay and Lou (No. 2)

Details

AGLC: Tsay and Lou (No. 2) [2018] FamCAFC 245
Case: [2018] FamCAFC 245
Decision Date: 5 December 2018

CaseChat Overview and Summary

The applicant, Tsay, sought an order for the respondent, Lou, to pay her costs of an appeal that was subsequently discontinued. The case was heard by the Supreme Court of New South Wales. The primary issue was whether the applicant was entitled to costs for the appeal that was discontinued by the parties. The court also considered whether the amount of the costs sought by the applicant was reasonable and justified.

The court held that the applicant was entitled to costs for the appeal that was discontinued, as the parties had agreed to the costs in the event that the appeal was unsuccessful. The court found that the amount of the costs sought by the applicant was reasonable and justified, and ordered the respondent to pay the applicant's costs of the discontinued appeal in the amount of $2,729 within one month of the date of the orders. The court noted that the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the respondent pay the applicant’s costs of the discontinued appeal in the amount of $2,729 within one (1) month of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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