FAMILY LAW – Costs – proceedings for property settlement – application by the wife for costs on an indemnity basis – where the conduct of the husband as a litigant was appalling – where the husband was wholly unsuccessful in the proceedings – where the husband's conduct of the proceedings was motivated by his anger and resentment towards the wife, and not by any desire or willingness to assist the court to understand and fairly determine relevant issues in the property settlement proceedings – where the husband litigated for ulterior motives – where the husband continued the proceedings in wilful disregard of the known facts – where the husband made allegations which ought never to have been made – where the husband prolonged the proceedings by raising groundless contentions – consideration of dicta from the decisions of the Full Court in Hand & Bodilly (2013) FamCAFC 98 and Prantage & Prantage (2013) FLC 93-545 – consideration of whether the Court has power to order costs on a solicitor and client (or lawyer and client) basis – consideration of whether the only bases upon which costs can now be ordered are costs on a party/party basis and costs on an indemnity basis – order made for costs to be assessed on an indemnity basis

Legislation:

Family Law Act 1975 (Cth), s 117, s 117(1), s 117(2), s 117(2A)
Family Law Rules 2004 (Cth), ch 19, r 19.01(2), r 19.08(3), r 19.18, r 19.18(1), r 19.18(2), r 19.34, r 19.34(1), r 19.34(2), Sch 3
District Court Rules (2005)(NSW)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Third Party : Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Third Party : Self Represented Litigant

Case(s) referred to in judgment(s):

Bouras v Grandelis (2005) 65 NSWLR 214
Cachia v Hanes (1994) 179 CLR 404
Casley & Casley (2010) FLC 93-449
Colgate‑Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Cross v Beaumont (2008) 39 Fam LR 386
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania))
............. v Fish and Another (2005) 191 FLR 294 at 130
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1998]
............. 81 ALR 397
Hand and Bodilly (2013) FamCAFC 98
Hawkins & Roe (2012) 47 FamLR 526
Hitch & Hitch (2012) 47 FamLR 603
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Maker & Jets (No 3) [2012] FMCAfam 1104
Marinko & Marinko (1983) FLC 91-307
Munday & Bowman (1997) FLC 92-784
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77

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 Baker & Darzi

Details

AGLC: Baker & Darzi [2013] FCWA 84
Case: [2013] FCWA 84
Decision Date: 22 AUGUST 2013

CaseChat Overview and Summary

The case involved a dispute between Baker and Darzi concerning a property settlement following their separation. The wife, Darzi, applied for costs on an indemnity basis, arguing that the husband's conduct throughout the proceedings was egregious. The Federal Circuit and Family Court of Australia was tasked with determining whether the husband's actions warranted such an award of costs. The legal issues centred on the husband's conduct, including whether it was appalling, motivated by ulterior motives, and whether it prolonged the proceedings without justification. The court had to assess if these factors justified an indemnity costs order against the husband.

The court examined the husband's conduct in detail, finding it to be appalling. The husband's litigation strategy was driven by anger and resentment rather than a genuine desire to resolve the property issues. He made allegations that should not have been made and continued the proceedings despite knowing the facts. These actions not only demonstrated a disregard for the court's processes but also unnecessarily prolonged the proceedings. The court relied on previous Full Court decisions that highlighted the importance of litigants acting in good faith and assisting the court in reaching a fair outcome. The husband's conduct fell well short of these standards.

Given the husband's appalling conduct and the impact on the proceedings, the court awarded costs to the wife on an indemnity basis. The husband's actions were found to be vexatious and motivated by personal grievances rather than a legitimate pursuit of his legal rights. The court emphasised that such conduct could not be tolerated and warranted a strong response in the form of indemnity costs. The final orders reflected the court's decision, requiring the husband to pay the wife's costs on an indemnity basis, underscoring the importance of proper litigation conduct in family law matters.

Orders