Bacall and Zagar (No. 2) - [2020] FamCA 598

FAMILY COURT OF AUSTRALIA

BACALL & ZAGAR (NO. 2)

[2020] FamCA 598

FAMILY LAW – INDEMNITY COSTS – relevant principles – applicant wholly successful for purposes of s 117(2A) – applicant achieving an outcome more favourable than any settlement offer put by the respondent – indemnity costs payable.

Family Law Act 1975 (Cth) ss 75(2), 79, 117(1), 117(2A)

Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Commonwealth of Australia v Gretton [2008] NSWCA 117
Cutts v Head [1984] 1 All ER 597
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Gordon & Gordon [2017] FCCA 2899
Guild & Stasiuk (No. 3) [2020] FamCA 564

Leichhardt Municipal Council v Green [2004] NSWCA 341
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
PBF & TRF (2005) 33 Fam LR 123

APPLICANT:

Ms Bacall

RESPONDENT:

Mr Zagar

FILE NUMBER:

SYC

8282

2017

DATE DELIVERED:

23 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

On the papers

JUDGMENT OF:

The Honourable Justice Wilson

DATE OF FINAL SUBMISSION:

20 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

O’Sullivan Legal

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Neil Jamieson & Associates

Orders

The respondent (now appellant) pay the applicant’s costs of and incidental to the proceeding, save for any costs thrown away on 19 June 2019, on an indemnity basis, to be assessed by a registrar of this court.

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 Bacall & Zagar 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: SYC 8282 of 2017

Ms Bacall

Applicant

And

Mr Zagar

Respondent

REASONS FOR JUDGMENT

Introduction

In these reasons issues of costs are determined –
a)of the proceeding; and
b)those reserved on 19 June 2019.
Pursuant to paragraph 17 of my orders made 18 June 2020, issues of costs are to be determined on the papers. The applicant and respondent (now appellant) filed written submissions in accordance with my orders. The respondent, now the appellant, has appealed my 14 May 2020 reasons and the orders subsequently pronounced, and he sought a stay of orders requiring him to file costs submissions until the hearing and determination of his appeal. I refused that application as it is my duty to determine all issues so as to bring to a close the trial of this proceeding. These costs orders do just that.
In essence, the…

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 Bacall and Zagar (No. 2)

Details

AGLC: Bacall and Zagar (No. 2) [2020] FamCA 598
Case: [2020] FamCA 598
Decision Date: 23 July 2020

CaseChat Overview and Summary

The proceeding concerned an application by Bacall and Zagar (the applicant) against the respondent. The court was required to determine the appropriate costs order following earlier proceedings between the parties.

The central legal issue before the court was the basis upon which costs should be awarded. Specifically, the court had to consider whether the costs should be awarded on a standard or indemnity basis, and whether any exceptions should apply to the general rule.

The court ordered that the respondent pay the applicant’s costs of and incidental to the proceeding on an indemnity basis. However, an exception was made for any costs thrown away on 19 June 2019. These costs were to be assessed by a registrar of the court.

Orders

Orders of the court

The respondent (now appellant) pay the applicant’s costs of and incidental to the proceeding, save for any costs thrown away on 19 June 2019, on an indemnity basis, to be assessed by a registrar of this court.

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

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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