Saturday, 23 May 2009

Family Court: position of third parties for costs orders

In the recent Full Court of the Family Court case of Rand and others v Rand, the court considered the issue of costs between the wife and 10 third party appellants. The court considered the effect of s.117 of the Family Law Act on costs issues with third parties:


It will thus be seen that on the basis of the arguments summarised above,
that the third party appellants in both appeals seek that the respondent wife
pay their costs of the appeals, and that the wife, in turn, seeks (at least as
her primary position) that the appellants pay her costs.

The starting point in relation to costs of proceedings under the Act
is, as pointed out in the submissions on behalf of the wife, that under s
117(1)
“each party to proceedings under the Act shall bear his or her own
costs”. However, the court may make an order for costs if it is of the opinion
that the circumstances justify it in so doing, having regard to the matters in s
117(2A).

It is important to note that nowhere in s
117
is any distinction drawn expressly between, on the one
hand, the parties to proceedings who might be termed the primary or principal
parties, that is, in a case such as the present, the husband and the wife, and
on the other hand, parties who can be described as third parties. Nevertheless,
there are cases in which the fact that a party is a third party may be a matter
to which regard could be had as another relevant matter under
s 117(2A)(g).
However, in the present case, given the close business (and in some
instances, personal) relationships between the husband and the wife and the
appellant third parties (including the Liquidator given that he is the
liquidator of the family company of the husband and the wife), we do not regard
the third party status of the appellants as being a matter to which any special
regard should be had in applying s
117.
Thus, to the extent that this was a submission made in the final
submissions of the wife, we agree with it.

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