Banis and Anor and Baghti

FAMILY COURT OF AUSTRALIA

BANIS & ANOR & BAGHTI [2016] FamCA 593

FAMILY LAW – COSTS – Indemnity costs –Consideration of the principles in Colgate-Palmolive Co. and Anor v Cussons Pty Limited – Where the respondent was wholly unsuccessful – Where the Court is of the view that there was never any basis for the relief being asserted by the respondent – Where the respondent is herself a legal practitioner – Where the circumstances warrant departure from the usual position of ordering costs on a party and party basis – Where the Court is of the view that costs should be paid on an indemnity basis – Order made that the respondent pay the applicants’ costs as assessed by the Court.

Family Law Act 1975 (Cth) – s 117(1)

Colgate-Palmolive Co. and Anor v Cussons Pty Limited (1993) 118 ALR 248

1st APPLICANT: Mrs Banis

2nd APPLICANT: Mr Banis

RESPONDENT: Ms M Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 17 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 13 May 2016 and 17 June 2016

REPRESENTATION

SOLICITOR FOR THE 1^ST & 2^ND APPLICANTS: Mr McDonell of McDonell Milne Toltz

FOR THE RESPONDENT: No appearance

Orders

1. That within 30 days Ms M Baghti pay to the applicants’ solicitors their costs assessed by the Court in the amount of $3520.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2145 of 2009

Mrs Banis

1^st Applicant

And

Mr Banis

2^nd Applicant

And

Ms M Baghti

Respondent

REASONS FOR JUDGMENT

1. This is an application for an order that Ms M Baghti pay Mrs Banis and Mr Banis (“the applicants”) part of their costs in the Third Party Debt Notice proceedings on an indemnity basis. 

2. There was no appearance by the respondent Ms M Baghti.

3. On 14 November 2014 the applicants filed an application for an order for the issue of a Third Party Debt Notice which would require their daughter Ms A Banis (“the wife”) to pay to them the amount of $91 080 which she would otherwise be required to pay to her former husband Mr Baghti pursuant to order 43 of the orders of this Court of 22 August 2012.  Those orders were substantive property orders which brought about a property settlement between the wife and the husband.

4. I am satisfied that reasonable endeavours have been made to serve notice of this costs application on Ms M Baghti.  This application came before me for hearing on 13 May 2016 and I had mistakenly thought that Ms M Baghti had been served.  But subsequently Mr McDonell, solicitor for the applicants, notified my Chambers indicating that a letter which he had referred to and which had formed the basis of my satisfaction about service…