Zane and Allan (Costs)

[2008] FamCAFC 171

FAMILY COURT OF AUSTRALIA

ZANE & ALLAN (COSTS) [2008] FamCAFC 171

FAMILY LAW – APPEAL – SECURITY FOR COSTS – ORDER FOR RELEASE OF SECURITY – Release to the appellant of monies previously lodged with the Court by the appellant as security for costs of an appeal, where the appeal was ultimately successful and no orders for costs were made.

APPELLANT: Mr Zane

RESPONDENT: Ms Allan

FILE NUMBER: SYF 6790 of 2000

APPEAL NUMBER:	EA	98	of	2005
EA	58	of	2006

DATE DELIVERED: 18 November 2008

PLACE DELIVERED: Canberra

PLACE HEARD: By way of written submissions

JUDGMENT OF: Finn, May and Thackray JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 August 2005 &

11 April 2006

LOWER COURT MNC: [2005] FamCA 905
[2006] FamCA 285

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Broun QC

SOLICITOR FOR THE APPELLANT: Luminous Legal

COUNSEL FOR THE RESPONDENT: Mr Lloyd

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

Order

1. That the Appeal Registrar of the Family Court of Australia at Sydney arrange for the release to the solicitor for the appellant husband of the sum of $5,000.00 held by the Court (pursuant to the order of the Full Court of 21 February 2007) as security for costs of appeal Number EA 58 of 2006.

IT IS NOTED that publication of this judgment under the pseudonym Zane & Allan (Costs) is approved 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 98 of 2005
  EA 58 of 2006
File Number:        SYF 6790 of 2006

Mr Zane

Appellant

And

Ms Allan

Respondent

REASONS FOR JUDGMENT

1. On 21 February 2007 a Full Court (Coleman, Warnick and May JJ) of this Court ordered that the appellant husband lodge the sum of $5,000.00 with the Court as security for costs in relation to his appeal against the orders of Le Poer Trench J made on 16 August 2005 (Appeal Number EA 58 of 2006).  The appellant husband duly lodged the required amount with the Court.

2. On 31 July 2008 this Full Court (Finn, May and Thackray JJ) made orders allowing the husband’s appeal.  No order for costs was made in respect of the appeal and the parties were granted certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

3. Subsequently, on 12 August 2008 the solicitor for the appellant husband wrote to the Appeals Registrar requesting that the sum held as security be returned to the husband for the reason that the appeal had been successful (and with no order for costs having been made against the appellant in relation to the appeal).

4. At our direction the Appeals Registrar wrote to the solicitor for the respondent wife on 24 September 2008 advising that, subject to providing the respondent wife with an opportunity to be heard, the Court proposed to consider the release to the appellant husband of the sum held by way of security.  The respondent wife was given 14 days in which to advise if she wished to be heard. 

5. No response was received from or on behalf of the respondent wife within the 14 day period, or indeed to date.

6. Accordingly, having regard to the fact that the appeal was allowed and no order was made for costs in relation to the appeal, we will order that the Appeal Registrar of the Family Court of Australia at Sydney arrange for the release to the solicitor for the appellant husband of the sum of $5,000.00 held by the Court (pursuant to the order of the Full Court of 21 February 2007) as security for costs of appeal Number EA 58 of 2006.

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

Associate: 

Date:  18 November 2008