Wen and Thom (Costs) - [2010] FamCAFC 115

FAMILY COURT OF AUSTRALIA

WEN & THOM (COSTS)

[2010] FamCAFC 115

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL FROM FEDERAL MAGISTRATES COURT– COSTS – Court of the opinion the wife’s offer of settlement in terms significantly better for the husband than the outcome that he has achieved as a result of the determination of his appeal justifies an order for costs on a party and party basis as agreed or assessed

Family Law Act 1975 (Cth)

APPELLANT:

MR WEN

RESPONDENT:

MS THOM

FILE NUMBER:

MLC

6669

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

21 June 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman J

HEARING DATE:

26 March 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 June 2009

LOWER COURT MNC:

[2009] FMCAfam 627

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Nikou QC

SOLICITOR FOR THE APPELLANT:

Plaza Legal

COUNSEL FOR THE RESPONDENT:

Mr Wood

SOLICITOR FOR THE RESPONDENT:

Forte Lawyers

Orders

That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 62 of 2009
File Number: MLC 6669 of 2007

Mr Wen

Appellant

And

Ms Thom

Respondent

REASONS FOR JUDGMENT

(costs)

On 23 April 2010, for reasons which the Court then published, the husband’s appeal against orders for settlement of property made by Federal Magistrate Reithmuller was dismissed. The Court’s orders of that date invited submissions with respect to the costs of the appeal to this Court.
The wife sought that the husband pay her costs of and incidental to the appeal.
A number of matters were relied upon in support of that application, which was agitated, as the Court’s orders envisaged, in written submissions made by counsel for the wife.
Whilst paraphrasing learned counsel for the wife’s submissions may do less than justice to them, the crux of those submissions was that the husband had been wholly unsuccessful with his appeal to this Court and that the wife had made an offer to settle the appeal on terms more generous to the husband than the orders of the learned Federal Magistrate against which he had appealed.
The submissions on behalf of the wife asserted that the offer to settle the appeal on the basis of a repayment to the husband of $15,000 represented a $15,000 better outcome for the husband than did the orders of the learned Federal Magistrate contested.
In submissions on behalf of the husband in response to those of counsel for the wife, a number of matters were raised. At no point in those submissions was the contention on behalf of the wife that she had offered to settle the appeal proceedings on terms more favourable to the husband than…

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 Wen and Thom (Costs)

Details

AGLC: Wen and Thom (Costs) [2010] FamCAFC 115
Case: [2010] FamCAFC 115
Decision Date: 21 June 2010

CaseChat Overview and Summary

The parties in this case were Wen and Thom, who were involved in a dispute concerning the costs of an appeal. The dispute was heard by the Family Court of Australia. The wife, Wen, had appealed a decision made by the Family Court and sought to have the husband, Thom, pay the costs associated with the appeal.

The central legal issue before the court was whether the husband should bear the costs of the appeal, both those incurred by the wife and any incidental costs. The court needed to assess whether the wife’s appeal was successful to a degree that justified the imposition of costs against the husband. Additionally, the court had to determine the appropriate basis for assessing these costs, whether on a party and party basis or otherwise.

The court ruled that the husband should indeed bear the costs of the wife’s appeal. It found that the wife’s appeal had merit, leading to a favourable outcome for her. Consequently, the court ordered that the husband pay the wife’s costs on a party and party basis, as agreed or assessed. This decision underscores the principle that costs should follow the event, meaning that the unsuccessful party in a legal dispute typically bears the costs of the successful party.

Orders

Orders of the court

That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.

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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