Wagner and Wagner (Costs)

[2010] FamCAFC 153

FAMILY COURT OF AUSTRALIA

WAGNER & WAGNER (COSTS) [2010] FamCAFC 153

FAMILY LAW – PROPERTY SETTLEMENT – COSTS – Husband’s appeal wholly unsuccessful - Court of the opinion circumstances justify the making of an order for cost’s in the wife’s favour as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) section 117 (2)

APPELLANT: MR WAGNER

RESPONDENT: MRS WAGNER

FILE NUMBER: NCF 2742 of 1999

APPEAL NUMBER: EA 31 of 2004

DATE DELIVERED: 20 August 2010

PLACE DELIVERED: Parramatta

JUDGMENT OF: COLEMAN, BOLAND & LE POER TRENCH JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 March 2004

LOWER COURT MNC: [2004] FamCA 282

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Rugendyke
Slater & Gordon

SOLICITOR FOR THE RESPONDENT: Mr Hassett
Hassett Dickson

Orders

1. That the husband pay the wife’s costs of and incidental to the husband’s Notice of Appeal filed 26 March 2004 as agreed or assessed on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Wagner & Wagner (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 31 of 2004
File Number: NCF 2742 of 1999

MR WAGNER

Appellant

And

MRS WAGNER

Respondent

REASONS FOR JUDGMENT

1. On 6 February 2009, for reasons which it then published, the Court dismissed  the application of Mr Wagner (“the husband”) to reinstate an appeal lodged by him against orders made by Mullane J on 26 March 2004 in proceedings for settlement of property between the husband and Mrs Wagner (“the wife”).

2. The Court then also made orders in relation to the filing of submissions with respect to the costs of the husband’s unsuccessful application to reinstate his appeal. More than eighteen months later, no submissions have been filed by or on behalf of the husband.

3. In submissions filed on her behalf on 23 February 2009, the wife’s attorney articulated the grounds upon which it was submitted that the Court would conclude that the circumstances of the case justified an order for costs in the wife’s favour. As submitted by the attorney for the wife, the Court declined to reinstate the husband’s abandoned appeal in reliance upon its conclusion that the appeal was “doomed to fail”.

4. The history of the husband’s appeal, as summarised in the submissions of the attorney for the wife reveal that the husband was, to say the least, dilatory in his prosecution of his Notice of Appeal against orders made in 2004. Whilst the husband’s conduct during the proceedings is supportive of the wife’s application for costs, reliance upon the husband having been wholly unsuccessful is sufficient for us to form the opinion required by section 117 (2) of the Family Law Act 1975 (Cth).

5. The attorney for the wife sought that this Court assess the costs payable by the husband. Whilst we accept that the husband’s conduct would have significantly increased the costs incurred by the wife in successfully resisting the husband’s appeal, and application to reinstate his abandoned appeal, we do not consider that we are in a position to asses the costs properly payable by the husband.

6. We will order that the husband’s pay the wife’s costs of and incidental to the husband’s Notice of Appeal filed 26 March 2004 as agreed or assessed on a party/party basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  20 August 2010