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Kartal & Templeman [2022] FedCFamC1A 46 (4 April 2022)SUMMARY

APPEAL FROM: Orders 1, 2, 3, 4 and 5 dated 13 October 2021




Restraining Orders
“Appeal from the Magistrates Court of Western Australia – Property – Where the magistrate made interlocutory orders for the sale of the former family home and the use of its proceeds – Where the wife contends the magistrate’s orders are final rather than interlocutory – Where the orders are not final because they do not exhaust the Court’s statutory power and do not dispose of the justiciable cause between the parties – Where the wife cannot demonstrate sufficient doubt attends the decision to warrant the grant of leave to appeal – Leave refused – Applications in an Appeal – Adduce further evidence – Where there is no appeal within which to adduce any further evidence – Applications dismissed – Costs ordered in a fixed sum.”

84 Leave to appeal is refused and the Amended Notice of Appeal filed on 11 February 2022 is dismissed.

85 Since leave to appeal is refused, there is no appeal within which to adduce further evidence and so the wife’s Application in an Appeal filed on 15 March 2022 is dismissed. The dismissal of her second Application in an Appeal filed on 25 March 2022 has already been explained.

86 In the event of refusal of leave or dismissal of the appeal, the husband sought an order compelling the wife to pay his party/party costs of and incidental to these proceedings in the sum of $8,823.44. The wife resisted such an order as her financial circumstances are so modest, but she willingly incurred liability to her own lawyers for costs to prosecute these proceedings, quantified at the surprisingly large sum of $41,624.14. Implicitly, she must have some asset or resource readily available to her to meet the liability.

87 The application for leave to appeal was wholly unsuccessful and, in some respects, completely misconceived. The husband was needlessly put to the expense of defending the magistrate’s orders and should have his reasonable party/party costs by way of reimbursement. The wife’s financial resources are apparently not so parlous as to preclude such an order. She did not dispute the reasonableness of the husband’s costs, but they are rounded to the nearest dollar.”

Taken from http://www.austlii.edu.au/
Full appeal here 

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