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Baum & Lokare (No 2)

Baum & Lokare (No 2)

Case [2019] FamCA 292 10 May 2019

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FAMILY COURT OF AUSTRALIA

BAUM & LOKARE (NO. 2)

[2019] FamCA 292

FAMILY LAW – COSTS – Circumstances justifying order – Where the wife has sought that the husband pay one third to half of her costs – Where the husband has not filed a response to the wife’s application and did not attend the hearing – Court finds that the husband’s conduct throughout the proceedings justifies the making of a costs order against him – Court orders that the husband pay 50 per cent of the wife’s costs.

Family Law Act 1975 (Cth) ss. 117
Federal Court of Australia Act 1976 (Cth) s. 37M(1)
Family Law Rules 2004 (Cth) rr. 1.04, 19.18

Cross & Beaumont (2008) 39 Fam LR 389
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Hawkins & Roe (2012) 47 Fam LR 526
Idoport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Sklavos v Australasian College of Dermatologists [2013] FCA 1065
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697

APPLICANT:

Ms Baum

RESPONDENT:

Mr Lokare

FILE NUMBER:

DNC

2013

DATE DELIVERED:

10 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Corbett Jessop Law

SOLICITOR FOR THE RESPONDENT:

Self-represented, no appearance

Orders

The husband pay the wife’s costs, as a lump sum, in the amount of $96,780, within 30 days.
In the event of the husband failing to comply with order (1) herein, the funds payable to the husband pursuant to order 22(i) made on 12 March 2019, shall be credited towards the costs payable to the wife, pursuant to order (1) herein.
To avoid doubt, the husband remains liable to pay to the wife the total amount specified in order (1), even in circumstances where the funds available pursuant to order (2) are insufficient to satisfy the husband’s obligation to pay that total amount.

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 Baum & Lokare (No.2) 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 SYDNEY

FILE NUMBER: DNC 17 of 2013

Ms Baum

Applicant

And

Mr Lokare

Respondent

REASONS FOR JUDGMENT

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 Baum & Lokare (No 2)

Details

AGLC: Baum & Lokare (No 2) [2019] FamCA 292
Case: [2019] FamCA 292
Decision Date: 10 May 2019

CaseChat Overview and Summary

In *Baum & Lokare (No 2)*, the wife sought an order that the husband pay between one-third and one-half of her costs. The husband had not filed a response to the wife's application and did not attend the hearing. The matter came before McClelland DCJ in the Family Court.

The central legal issue before the court was whether the husband's conduct throughout the proceedings justified making a costs order against him, and if so, to what extent.

McClelland DCJ found that the husband's conduct warranted a costs order. The court determined that the husband should pay 50 per cent of the wife's costs. The husband was ordered to pay the wife's costs as a lump sum of $96,780 within 30 days. In the event of non-compliance, funds payable to the husband under a previous order were to be credited towards this costs obligation, though the husband remained liable for the full amount regardless of the sufficiency of those funds.

Orders

Orders of the court

The husband pay the wife’s costs, as a lump sum, in the amount of $96,780, within 30 days.

In the event of the husband failing to comply with order (1) herein, the funds payable to the husband pursuant to order 22(i) made on 12 March 2019, shall be credited towards the costs payable to the wife, pursuant to order (1) herein.

To avoid doubt, the husband remains liable to pay to the wife the total amount specified in order (1), even in circumstances where the funds available pursuant to order (2) are insufficient to satisfy the husband’s obligation to pay that total amount.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Baum & Lokare (No 2) [2019] FamCA 292

Most Recent Citation

Metaxas & Sargent [2022] FedCFamC1F 97

Cases citing this decision · 10 of 10 shown

Metaxas & Sargent (No 2)
[2022] FedCFamC1F 238 Para 28

…y reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act before such an order is made: Baum & Lokare (No 2) [2019] FamCA 292 at [10] ( “Baum” ); Penfold v Penfold (1980) 144 CLR 311 at 315 ( “Penfold” ). However as McClelland DCJ observed in Baum , (citing Penfold ), “it is…
Halstron & Halstron
[2022] FedCFamC1F 211 Para 10

…y reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act before such an order is made: Baum & Lokare (No 2) [2019] FamCA 292 at [10] (“ Baum ”); Penfold v Penfold (1980) 144 CLR 311, 315 ( “Penfold” ). However as McClelland DCJ observed in Baum , (citing Penfold ), “it is n…
Metaxas & Sargent
[2022] FedCFamC1F 97 Para 27

…Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]; Wrenstead v Eades (2016) FLC 93-697 at [15]; Baum & Lokare (No 2) [2019] FamCA 292 at [10].…
Cardus and Lavrick (No 2)
[2020] FamCA 1103 Para 16

…ant for costs must establish the circumstances in which a costs order would be justified. However, as McClelland DCJ observed in Baum & Lokare (No 2) [2019] FamCA 292 at [10] , (citing Penfold v Penfold (1980) 144 CLR 311 at [315]), “it is not the case that a costs order can only be made in what has been described…
BEHZADI & AGASSI
[2020] FamCA 1112 Para 2

…& Roe [2012] FamCAFC 77, and Wrensted & Eades [2016] FamCAFC 46. I also note the decision of Deputy Chief Justice McClelland in Baum & Lokare (No.2) [2019] FamCA 292, and, of course, the decision in Penfold v Penfold (1980) FLC 90-800 in terms of the tension between section 117(1) and 117(2) of the Act where the m…
AYARI & AGASSI
[2020] FamCA 1111 Para 1

…& Roe [2012] FamCAFC 77, and Wrensted & Eades [2016] FamCAFC 46. I also note the decision of Deputy Chief Justice McClelland in Baum & Lokare (No.2) [2019] FamCA 292, and, of course, the decision in Penfold v Penfold (1980) FLC 90-800 in terms of the tension between section 117(1) and 117(2) of the Act where the m…
COLE & INGRAM
[2020] FamCA 966 Para 2

…Senior counsel for the mother also took me to a decision of Deputy Chief Justice McClelland in Baum & Lokare (No. 2) [2019] FamCA 292 where his Honour set out the following:- 18. In respect to s 117(2A)(e), I note that the husband was wholly unsuccessful in his application, as set out in the wife’s submissions, to…
Nestor and Ripley & Anor
[2020] FamCA 694 Para 16

…xhaustive list of statutory considerations set out in section 117(2A) before such an order is made. In this respect, I refer to Baum & Lokare (No. 2) [2019] FamCA 292 at 10. Any one or any combination of these matters can be matters on the basis of which the Court could make a costs order. Whilst the considerations…
Holbert and Holbert
[2020] FamCA 567 Para 10

…or costs by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) before such an order is made: Baum & Lokare (No 2 ) [2019] FamCA 292 (“ Baum ”) at [10]. Any one, or any combination, of these matters can be matters on the basis of which the court could make a costs order. Whilst the…
Feiteiro & Feiteiro
[2019] FamCA 647 Para 5

…or costs by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) before such an order is made: Baum & Lokare (No 2 ) [2019] FamCA 292 at [10] (“ Baum ”). Any one, or any combination, of these matters can be matters on the basis of which the court could make a costs order. Whilst the…

View all 10 citing cases →

Cases cited in this decision · 8 of 8 shown

Sfakianakis & Sfakianakis
[2019] FamCAFC 54 Para 12

…In that respect, in Sfakianakis & Sfakianakis [2019] FamCAFC 54, the Full Court, relevantly, held as follows: 19. In respect of such contentions, the respondent unsurprisingly submitted: The arguments raised by the appellant were contrary to authority, contrary to the position adopted below and contrary to the schem…
Stoian & Fiening (Costs)
[2014] FamCA 944 Para 1

…t fixing upon a specific amount for costs or, in r 19.18(1)(b), an order for the costs to be assessed on a particular basis: Stoian & Fiening (Costs) [2014] FamCA 944 at [82].…
Julstar Pty Ltd v Hart Trading Pty Ltd
[2014] FCA 108 Para 6

…not unreasonably fail to accept an offer to resolve a matter in dispute. This is made clear by Greenwood J in Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108, where his Honour said, at [94], that this requires a party to “carefully assess all the material … to determine and confront the strengths and weakn…
Sklavos v Australasian College of Dermatologists
[2013] FCA 1065 Para 7

…As stated by Jagot J in Sklavos v Australasian College of Dermatologists [2013] FCA 1065 at [35]: These provisions are not merely exhortatory. The duty is real and can be enforced, if necessary, by appropriate costs orders.…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 6

…on ( Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163]).…
Idoport Pty Ltd v National Australia Bank Ltd
[2007] NSWSC 23 Para 2

…plication of s 98(4)(c) of the Civil Procedure Act 2005 (NSW), as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23, stating it was “similar” to r 19.18. Those principles are: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in pro…
Nguyen v Nguyen
[1990] HCA 9 Para 6

…y erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion ( Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84]…
Penfold v Penfold
[1980] HCA 4 Para 3

…d justify such an order, it is not the case that a costs order can only be made in, what has been described as, “a clear case”: Penfold v Penfold (1980) 144 CLR 311 at 315.…

Legislation cited in this decision · 4

Family Law Rules 2004 (Cth)
1.04, 19.18 3 mentions (from Para 4)
Family Law Act 1975 (Cth)
117 2 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
37M(1) 2 mentions (from Para 5)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 2)