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Adamo & Vinci (No 5)

Adamo & Vinci (No 5)

Case [2024] FedCFamC1F 172 22 March 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci (No 5) [2024] FedCFamC1F 172

File number: SYC 3598 of 2018

Judgment of: SCHONELL J

Date of judgment: 22 March 2024

Catchwords: FAMILY LAW – COSTS – Where the husband’s application to set aside and vary final orders was dismissed – Where the wife sought indemnity costs against the husband – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the husband was wholly unsuccessful in the proceedings – Where the wife had a superior financial position to the husband – Where the husband’s offer to the wife did not represent an offer of settlement – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on a party and party basis.

Legislation: Family Law Act 1975 (Cth), s 117

Cases cited:
Adamo & Vinci (No 4) [2023] FedCFamC1F 1100

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248

Kohan & Kohan (1993) FLC 92-340

Leichhardt Municipal Council v Green [2004] NSWCA 341

Nada v Nettle (Costs) (2014) FLC 93-612

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold and Penfold (1980) 144 CLR 311

Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

Division: Division 1 First Instance

Date of last submissions: 20 February 2024

Date of hearing: Dealt with on the papers

Place: Sydney

Number of paragraphs: 29

The Applicant: Litigant in person

Counsel for the Respondent: Mr Livingstone

Solicitor for the Respondent: Alidenes & Co Solicitor
ORDERS

SYC 3598 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ADAMO

Applicant

AND:
MS VINCI

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS THAT:
1.The husband pay the wife’s costs on a party and party basis as agreed or assessed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

On 18 December 2023, the Court dismissed the applicant husband’s (“husband”) Further Amended Initiating Application filed 5 December 2022, that sought to set aside and…

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 Adamo & Vinci (No 5)

Details

AGLC: Adamo & Vinci (No 5) [2024] FedCFamC1F 172
Case: [2024] FedCFamC1F 172
Decision Date: 22 March 2024

CaseChat Overview and Summary

Mr Adamo appealed against the final orders of a family law proceeding, which were dismissed. Ms Vinci, in turn, sought indemnity costs against Mr Adamo under section 117(2A) of the Family Law Act 1975 (Cth). The Federal Circuit and Family Court of Australia (Division 1) was required to determine whether Ms Vinci was entitled to indemnity costs and, if so, the extent of those costs. The court considered the factors outlined in section 117(2A) of the Family Law Act 1975 (Cth), including the success or failure of the parties, their respective financial positions, and any offers made by one party to the other. Mr Adamo was wholly unsuccessful in his application, and Ms Vinci had a superior financial position. The court found that Mr Adamo's offer to Ms Vinci did not constitute an offer of settlement. Given these factors, the court was not satisfied that exceptional circumstances warranted the award of indemnity costs. Consequently, the court ordered that Mr Adamo pay Ms Vinci's costs on a party and party basis as agreed or assessed.

Orders

Orders of the court

SYC 3598 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ADAMO

Applicant

AND:

MS VINCI

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS THAT:

1. The husband pay the wife’s costs on a party and party basis as agreed or assessed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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Citations

Adamo & Vinci (No 5) [2024] FedCFamC1F 172

Most Recent Citation

Lundquist & Lundquist (No 2) [2024] FedCFamC1A 235

Cases Citing This Decision

Lundquist & Lundquist (No 2) [2024] FedCFamC1A 235
Citation 1 (Para 11)

…whether the offer constitutes a genuine attempt to compromise ( Leichhardt Municipal Council v Green [2004] NSWCA 341 and Adamo & Vinci (No 5) [2024] FedCFamC1F 172 at [19]) and the timing of the offer. The offer did not propose a compromise on the substantive issues, beyond forgoing costs incurred to the date of the o…

See all citing cases →

Cases Cited

Adamo & Vinci (No 4) [2023] FedCFamC1F 1100
Citation 1 (Para 3)

…lication for costs needs to be seen within the context of the Reasons for Judgment delivered on 18 December 2023, published as Adamo & Vinci (No 4) [2023] FedCFamC1F 1100 (“Reasons for Judgment”). For the purposes of determining the wife’s application, I have read the wife’s affidavit, the written submissions of the wife…
Wentworth v Rogers & Anor [2007] HCATrans 747
Citation 2 (Para 23)

…and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534 ; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370. Indemnity costs orders are still an exception in this and other jurisdictions.…
Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064
Citation 3 (Para 19)

…ere is any element of compromise in such a proposal. Rather, it is an invitation to the wife to surrender (see Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064, Leichhardt Municipal Council v Green [2004] NSWCA 341).…
Leichhardt Municipal Council v Green [2004] NSWCA 341
Citation 4 (Para 19)

…her, it is an invitation to the wife to surrender (see Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064, Leichhardt Municipal Council v Green [2004] NSWCA 341).…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed) [2001] FCA 1352
Citation 5 (Para 24)

…Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in…
Colgate-Palmolive Co v Cussons Pty ltd [1993] FCA 801
Citation 6 (Para 24)

…Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed at 256–257: It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, ie litigation as between parties at…
Penfold v Penfold [1980] HCA 4
Citation 7 (Para 6)

…In Penfold and Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court determined that to make an order under s 117(2) of the Act, the Court needs to make a finding of “justifying circumstances” as a preliminary prerequisite to the making of an order. Their Honours also observed that a term such as “a clea…
Thors v Weekes [1989] FCA 795
Citation 8 (Para 24)

…alse and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were com…
Maitland Hospital v Fisher 268 ALR 1
Citation 9 (Para 24)

…Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed at 256–257: It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, ie litigation as b…
Messiter v Hutchinson (1987) 10 NSWLR 525
Citation 10 (Para 24)

…ation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an…

Legislation Cited

Family Law Act 1975 (Cth) 117
2 mentions (from Para 4)

File number:	SYC 3598 of 2018
Judgment of:	SCHONELL J
Date of judgment:	22 March 2024
Catchwords:	FAMILY LAW – COSTS – Where the husband’s application to set aside and vary final orders was dismissed – Where the wife sought indemnity costs against the husband – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the husband was wholly unsuccessful in the proceedings – Where the wife had a superior financial position to the husband – Where the husband’s offer to the wife did not represent an offer of settlement – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on a party and party basis.
Legislation:	Family Law Act 1975 (Cth), s 117
Cases cited:	Adamo & Vinci (No 4) [2023] FedCFamC1F 1100 Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 Kohan & Kohan (1993) FLC 92-340 Leichhardt Municipal Council v Green [2004] NSWCA 341 Nada v Nettle (Costs) (2014) FLC 93-612 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold and Penfold (1980) 144 CLR 311 Westbury Holdings Kiama Pty Ltd v ASIC [2007] NSWSC 1064 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
Division:	Division 1 First Instance
Date of last submissions:	20 February 2024
Date of hearing:	Dealt with on the papers
Place:	Sydney
Number of paragraphs:	29
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Livingstone
Solicitor for the Respondent:	Alidenes & Co Solicitor

SYC 3598 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ADAMO Applicant
AND:	MS VINCI Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	22 MARCH 2024