Aldam and Cesari (No. 4)

[2020] FamCA 888

FAMILY COURT OF AUSTRALIA

ALDAM & CESARI (NO. 4) [2020] FamCA 888

FAMILY LAW – COSTS – stay application dismissed – offer in writing to deal with stay application rejected by party against whom costs order made.

Family Law Act 1975 (Cth) s 117(2A)

Aldam & Cesari (No. 3) [2020] FamCA 849
Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
Nolan v Nolan [2003] VSC 136

APPLICANT: Mr Aldam

RESPONDENT: Mr Cesari

FILE NUMBER: MLC 9029 of 2018

DATE DELIVERED: 22 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: On the papers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C. Conlan

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. On or before 4pm on 23 November 2020 the respondent must pay the applicant’s costs of and incidental to the stay application on 6 October 2020 in the sum of $4,328.20.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldam & Cesari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9029 of 2018

Mr Aldam

Applicant

And

Mr Cesari

Respondent

REASONS FOR JUDGMENT

1. Following the dismissal of Mr Cesari’s stay application[1] Mr Aldam has sought orders requiring Mr Cesari to pay Mr Aldam’s costs.

   [1]Aldam & Cesari (No. 3) [2020] FamCA 849.

2. Mr Aldam sought payment of the sum of $4,328.20, or the sum of $3,452.13 according to scale.

3. For the purposes of s 117(2A) of the Family Law Act, Mr Aldam relied on s 117(2A)(f) by contending that he had made an offer in writing to settle the stay application and that Mr Cesari pressed his stay application in the face of that offer.

4. By letter dated 4 October 2020 from Mr Aldam’s solicitors to Mr Cesari, Ms Sturgeon, Mr Aldam’s solicitor, put the proposal there recorded with a view to avoiding the costs of the appearance on 6 October 2020.  Ms Sturgeon’s letter was as follows –

   Aldam and Cesari - Family Law Matter

   We refer to your application for a stay of the orders made 4 September 2020 served on our office late Friday 3 October 2020.

   Without admitting the merits of your application for a stay of the orders but to avoid the costs of the hearing on Tuesday 6 October 2020, Mr Aldam will consent to a stay of order 2 (default provision) of the Orders made 4 September…