Barron and Zebic (No.2) - [2016] FCCA 1695

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRON & ZEBIC (No.2)

[2016] FCCA 1695

Catchwords:
COSTS – Application for costs – indemnity costs – whether costs should be awarded on an indemnity basis – Calderbank offer of settlement – costs to be calculated in accordance with Federal Circuit Court Rules 2001, Sch. 1, Part 1.

Legislation:

Family Law Act 1975 (Cth), ss.117, 117C

Federal Circuit Court Rules 2001, Sch. 1, Part 1

Cases cited:

Colan Products Pty Ltd v Luxon (No.2) [2002] FMCA 90

Colgate Palmolive Co. v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248;

[1993] FCA 536

In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340

Maitland Hospital v Fisher (No.2) (1992) 27 NSWLR 721
Prantage & Prantage (2013) 49 Fam LR 197; FLC 93-544; [2013] FamCAFC 105
Zebic & Barron [2015] FCCA 3613

Applicant:

MR BARRON

Respondent:

MS ZEBIC

File Number:

NCC 2955 of 2010

Judgment of:

Judge Scarlett

Hearing date:

8 September 2015

Date of Last Submission:

8 September 2015

Delivered at:

Sydney

Delivered on:

7 July 2016

REPRESENTATION

Solicitor for the Applicant:

Ms Johnson

Solicitors for the Applicant:

Flintoff Lawyers

Solicitor for the Respondent:

Ms Tyrie

Solicitors for the Respondent:

Paula Tyrie Law Practice

ORDERS

Within six (6) months of the date of these Orders the Mother is to pay the Father’s costs of the substantive parenting proceedings fixed in the sum of $14,951.00.
Within six (6) months of the date of these orders the Mother is to pay the Father’s costs of the Application in a Case filed on 29 July 2015 fixed in the sum of $2,262.00.
All other outstanding Applications if any are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Barron & Zebic (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 2955 of 2010

MR BARRON

Applicant

And

MS ZEBIC

Respondent

REASONS FOR JUDGMENT

Application in a Case

This is an Application for costs in respect of a decision in a parenting case brought by the Respondent Father. The Father seeks costs on an indemnity basis. The decision was handed down on 30^th June 2015 (Zebic & Barron[1]).
[1] [2015] FCCA 3613

Orders sought

The Father, by his Application in a Case filed on 29^th July 2015 seeks this Order:
That within 28 days the mother pay the husband’s costs of and incidental to the proceedings on an indemnity basis.
By her Response to an Application in a Case filed on 27^th August 2015 the Mother seeks that the Application should be dismissed with costs.

Evidence and Submissions

The Application is supported by an affidavit of the Father affirmed on 27^th July 2015.
The Mother’s Response is supported by her affidavit sworn on 25^th August 2015.
The basis of the Father’s claim can be found in his affidavit:
10.The final orders that were made by the Court in these proceedings…

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 Barron and Zebic (No.2)

Details

AGLC: Barron and Zebic (No.2) [2016] FCCA 1695
Case: [2016] FCCA 1695
Decision Date: 7 July 2016

CaseChat Overview and Summary

In *Barron and Zebic (No.2)*, Judge Scarlett of the Federal Circuit and Family Court of Australia was required to determine the quantum of costs to be paid by the Mother to the Father following substantive parenting proceedings and an earlier application. The dispute concerned the final allocation of legal costs incurred by the Father in these matters.

The primary legal issue before the Court was to fix the amount of costs payable by the Mother to the Father for both the main parenting proceedings and a specific application filed on 29 July 2015. The Court also needed to address the disposition of any other outstanding applications.

Judge Scarlett ordered that the Mother pay the Father's costs of the substantive parenting proceedings in the sum of $14,951.00. Additionally, the Mother was ordered to pay the Father's costs for the Application in a Case filed on 29 July 2015, fixed at $2,262.00. All other outstanding applications were dismissed.

Orders

Orders of the court

Within six (6) months of the date of these Orders the Mother is to pay the Father’s costs of the substantive parenting proceedings fixed in the sum of $14,951.00.

Within six (6) months of the date of these orders the Mother is to pay the Father’s costs of the Application in a Case filed on 29 July 2015 fixed in the sum of $2,262.00.

All other outstanding Applications if any are dismissed.

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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