Barilla & Barilla (No 3)
[2023] FedCFamC1F 368
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barilla & Barilla (No 3) [2023] FedCFamC1F 368
File number(s): CAC 1604 of 2018 Judgment of: GILL J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW - COSTS - As agreed or assessed Legislation: Corporations Act 2001
Family Law Act 1975 (Cth) - s 117
Cases cited: Penfold v Penfold (1980) 144 CLR 311 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 11 May 2023 Place: Canberra Solicitor for the Applicant: Farrar Gesini Dunn Solicitor for the Respondent: Litigant in person Counsel for the Intervener: Mr Blank Solicitor for the Intervener: Parker Coles Curtis ORDERS
CAC 1604 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARILLA
Applicant
AND: MR BARILLA
Respondent
MR MARRIOTT AS LIQUIDATOR OF B PTY LTD (IN LIQUIDATION)
Intervener
order made by:
GILL J
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
1.I order that the liquidator pay the costs of the wife as agreed or as assessed for today's proceedings.
2.Payment of such costs is deferred until judgment is delivered on the completion of this matter.
3.Orders 1, 2 3 and 5 of the orders made on 19 April 2023, and as amended on 1 May 2023, are discharged.
4.I direct that Mr Barilla forthwith file a Notice of Address for Service.
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
GILL J
In this matter, the liquidator seeks the costs of today's application, while the wife seeks her costs in respect of today's application.
The starting point in respect of orders for costs is governed by s 117 of the Family Law Act 1975 (Cth) (the Act) and it is that each party will bear their own costs subject to the court ordering otherwise.
The factors that the court may take into account in considering whether to depart from that starting position are those set out at s 117(2)(a) of the Act. The High Court case of Penfold v Penfold (1980) 144 CLR 311 sets out the nature of that step to determine that costs should be ordered, despite the starting position that each party will bear their own costs.
The argument put forward by the liquidator is that there was a need to clarify the orders that were previously made and that the liquidator has been successful in the conduct of the proceedings in obtaining both clarification and accordingly modification of those previous restraints.
The rationale put forward by the wife is that the manner of the conduct of the litigation by the liquidator is what has necessitated the application today. Specifically, her complaint is that what has been raised by the liquidator today, which has resulted in an amendment of the previous restraints, are matters that were not pursued by the liquidator on the previous occasion.
In general terms, those matters that were asserted to not be pursued on the last occasion were the liquidator's intention to conduct a public examination in respect of the liquidation and the liquidator’s potential to pursue remedies under the Corporations Act 2001 (Cth).
It should be said that there is nothing in this application which would justify an award of costs in favour of the liquidator. It has been rendered necessary by the manner of the conduct of the litigation by the liquidator. A question will arise as to whether or not that is sufficient to depart from the starting rule in favour of the wife. Rightly, counsel for the liquidator has pointed out that at various points in the proceedings the liquidator has made reference to potentially seeking relief in the form of relief that can be obtained under the Corporations Act. It cannot be denied that there are references peppered within the liquidator’s outline of argument and evidence that this was a course of action that could be pursued. However, in terms of the actual conduct of the proceedings before me on the last occasion these references may be seen to be oblique rather than direct. The thrust of the proceedings on the last occasion, which was conducted in circumstances where it was left unclear by the liquidator as to what steps might be taken elsewhere, was focused upon whether or not there were claims in debt and equity that will be directed to the husband, the wife and the Suburb D property.
Under circumstances where it was within the power of the liquidator to focus the attention of the court as to the potential remedies that might be pursued elsewhere, rather than choosing to leave those matters oblique it may be seen that the necessity for the liquidator to make today's application, which I concede it was necessary for him to do in the light of the circumstances that have now been identified by him, may well have been avoided had those matters been made clear at the first hearing of the matter.
Accordingly, it is the conduct of the liquidator that has caused today's application to take place. That disentitles the liquidator to an argument to receive costs and is sufficient to warrant departure from the usual rule in favour of the wife.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 May 2023
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