Floyd Hamilton Sawyer v Flora Pappas Sawyer

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, JA
• Judgment Date: 27 February 2019
• Neutral Citation: BS 2019 CA 21
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No. 134 of 2014
• Date: 27 February 2019

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Sir Michael Barnett, JA (Actg.)

The Honourable Mr. Justice Evans, JA (Actg.)

SCCivApp. No. 134 of 2014

Floyd Hamilton Sawyer

Appellant

and

Flora Pappas Sawyer

Respondent

APPEARANCES

Mrs. Janet L. R. Bostwick-Dean, Counsel for the Appellant

Mr. Avrom Thompson with Ms. Latia Williams, Counsel for the Respondent

Glinton v Glinton SCCivApp. No. 101 of 2017 mentioned

Gojokic v Gojokic (No 2) [1992] 1 All ER 267 considered

Civil appeal - Costs judgment — Section 10 of the Court of Appeal Act — Rule 24 (5) of the Court of Appeal Rules

On 12 April 2018 the Court allowed, in part, the appellant's against the order on the issue of the division of property consequent on the dissolution of marriage. The order of the trial judge was varied only to the extent that the Court made an order with respect to certain assets which the trial judge did not deal with in her order.

Held: Each party to bear their own costs.

The Court has a very wide discretionary power to make an order as to costs in appeals. That power is derived from Section 10 of the Court of Appeal Act and Rule 24 (5) of the Court of Appeal Rules. This discretion, although wide, must be exercised judicially and this Court must have regard to previous decisions of the Court with respect to costs in matrimonial proceedings.

The general rule is that although costs are ultimately in the discretion of the court in financial remedy proceedings in relation to a divorce the courts will not make an order requiring one party to pay the costs of the other party. However, what is the proper approach when one party has appealed the financial provision order to the Court of Appeal. What is the just order? In the Court's view where a party has unsuccessfully appealed a financial provision order to the Court of Appeal the starting point should be that costs follow the event and the unsuccessful appellant should pay the costs of the appeal unless it would be unjust in all the circumstances to make that order.

In this case the husband has been partially successful in his appeal. Although the court did not vary the order of the trial judge as requested by the husband, he was partially successful in that this Court did, in fact, make an order for his benefit with respect to a substantial portion of the assets in which the trial judge simply did not make an order. To that extent it was necessary for him to appeal and the appellant has succeeded over the objections of the wife.

The Court orders that each party should bear their own costs. Firstly, had the trial judge dealt with those assets at the hearing below they would have been included in the order that each party bears their own costs. Secondly, although, it is arguable that the wife should be required to pay a portion of the husband's costs of the appeal the husband cannot require her to pay the costs incurred on those aspects of the appeal in which he was unsuccessful.

(Costs)

Delivered by the Honourable Sir Michael Barnett, JA (Actg.) :

1 On 12 April 2018 we allowed, in part, an appeal by the husband/appellant against the order of the trial judge on the issue of the division of property consequent on the dissolution of a marriage.

2 . The order of the trial judge was varied only to the extent that this Court made an order with respect to certain disputed assets which the trial judge did not deal with in her order. Otherwise this court did not vary the order of the trial judge as requested by the husband on his appeal. In particular we did not vary the order of the trial judge that each party should bear their own costs on the costs of the proceedings for ancillary relief.

3 . We reserved on the issue...