FAMILY COURT OF AUSTRALIA
| BELE & VAUGHAN (COSTS) | [2012] FamCAFC 198 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – INDEMNITY COSTS – where the respondent seeks that the applicant pay his costs of and incidental to the proceedings on an indemnity basis – where the conduct of the applicant and the fact that she was wholly unsuccessful in the proceedings provide circumstances that justify an order for costs being made – where the respondent has demonstrated the presence of exceptional circumstances to warrant a departure from the ordinary rules as to costs – where the respondent should not have to bear any of the legal costs incurred by him in responding to the mala fide actions of the applicant – where the clear intention of the applicant was to obstruct and thwart the execution of the consent orders made on 13 December 2011 – costs order made as sought by the respondent. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules (2004) (Cth) r 19.08(3) and Schedule 3 |
| Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248. Munday v Bowman (1997) FLC 92-784 |
| APPLICANT: | Ms Bele |
| RESPONDENT: | Mr Vaughan |
| FILE NUMBER: | MLC | 9056 | of | 2009 |
| APPEAL NUMBERS: | SOA | 45 | of | 2011 |
| SOA | 46 | of | 2012 |
| DATE DELIVERED: | 4 December 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne and Adelaide via video-link |
| JUDGMENT OF: | Strickland J |
| HEARING DATES: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 June 2011 |
| LOWER COURT MNC: | [2011] FamCA 436 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT CONSENT ORDER DATE: | 13 December 2011 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Y (solicitor) - 13 July 2012 |
| Applicant appeared in person - 19 July 2012 |
| SOLICITOR FOR THE APPLICANT: | Y Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Harriss (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
The application of the applicant for costs be dismissed.
The applicant pay the respondent’s costs of and incidental to the application in an appeal filed by the applicant on 13 June 2012 and the response of the respondent filed on 6 July 2012 calculated on an indemnity basis from the date of filing of the application in an appeal until judgment (but including the costs incurred in preparing written submissions as to costs).
In default of agreement as to the costs payable by the applicant to the respondent pursuant to these orders, such costs be as assessed on an indemnity basis.
The costs payable by the applicant to the respondent pursuant to these orders be paid from the applicant’s share of the net proceeds of sale of the real property at No 9, sold pursuant to the consent orders made by the Honourable Justice
Le Poer Trench on 13 December 2011.
IT IS NOTED
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- AGLC
- BELE & VAUGHAN (COSTS) [2012] FamCAFC 198
- Case
- [2012] FamCAFC 198
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the appropriate basis for calculating the costs Bele owed to Vaughan, and whether those costs should be paid from Bele’s share of the net proceeds of the sale of a specific property. The court had to decide on the methodology for assessing the costs and the source from which they would be paid.
The court dismissed Bele’s application for costs and ordered Bele to pay Vaughan’s costs from the appeal filing date until judgment, calculated on an indemnity basis. Additionally, the court stipulated that if Bele and Vaughan could not agree on the exact amount of costs owed, the costs would be assessed on an indemnity basis. Finally, the court mandated that the costs Bele owed to Vaughan be paid from Bele’s share of the net proceeds of the sale of the property located at No 9, which had been sold pursuant to consent orders made by Justice Le Poer Trench on 13 December 2011.
Orders
Orders of the court
1.
The application of the applicant for costs be dismissed.
2.
The applicant pay the respondent’s costs of and incidental to the application in an appeal filed by the applicant on 13 June 2012 and the response of the respondent filed on 6 July 2012 calculated on an indemnity basis from the date of filing of the application in an appeal until judgment (but including the costs incurred in preparing written submissions as to costs).
3.
In default of agreement as to the costs payable by the applicant to the respondent pursuant to these orders, such costs be as assessed on an indemnity basis.
4.
The costs payable by the applicant to the respondent pursuant to these orders be paid from the applicant’s share of the net proceeds of sale of the real property at No 9, sold pursuant to the consent orders made by the Honourable Justice
Le Poer Trench on 13 December 2011.
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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