Bence and Bence (No 2) - [2020] FamCA 916

FAMILY COURT OF AUSTRALIA

BENCE & BENCE (NO. 2)

[2020] FamCA 916

FAMILY LAW – COSTS – where the wife seeks that the husband pay indemnity costs – where the husband opposes an order as to costs – consideration of s 117(2A) factors – where there are exceptional circumstances in this case to award costs on an indemnity basis – order that the husband pay 60 per centum of the wife’s costs on an indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Guild & Stasiuk [2020] FamCA 348
I and I (1995) FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Bence

RESPONDENT:

Mr Bence

FILE NUMBER:

MLC

11283

2017

DATE DELIVERED:

30 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

Written Submissions in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

THE RESPONDENT:

In person

Orders

That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, calculated on an indemnity basis and fixed in the sum of $157,688.
That all extant applications be otherwise dismissed.

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 Bence & Bence 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 MELBOURNE

FILE NUMBER: MLC 11283 of 2017

Ms Bence

Applicant

And

Mr Bence

Respondent

REASONS FOR JUDGMENT

Introduction

Following a four day trial final orders were made with respect to the adjustment of the parties’ property interests on 4 September 2020 (“the Final Orders”), Reasons for Judgment having been delivered on 20 August 2020 (“the Judgment”).
In accordance with order 27 of the Final Orders, the wife seeks orders that the husband pay her costs of the proceedings on an indemnity basis or alternatively on a solicitor and client basis or party/party basis. In support of that application she relies upon the costs submissions filed on 21 September 2020.
The orders sought by the wife are set out at pages 9 and 10 of those submissions and provide as follows:-
1.That the Husband pay the Wife's costs fixed in the sum of $262,814.46.
2.In the alternative, the Husband pay the Wife's costs of these proceedings assessed on a solicitor and client basis in the sum of $248,472.43.
3.In…

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 Bence and Bence (No 2)

Details

AGLC: Bence and Bence (No 2) [2020] FamCA 916
Case: [2020] FamCA 916
Decision Date: 30 October 2020

CaseChat Overview and Summary

In *Bence and Bence (No 2)*, Johns J of the Federal Circuit and Family Court of Australia was required to determine an application for costs following earlier proceedings between the parties. The wife sought an order for her costs to be paid by the husband on an indemnity basis.

The central legal issue before the court was whether the husband should be ordered to pay the wife’s costs on an indemnity basis, and if so, in what amount. This required the court to consider the circumstances of the litigation and whether they warranted departing from the usual order for costs to be assessed on a party and party basis.

Johns J reasoned that the husband's conduct during the proceedings justified an order for indemnity costs. His Honour found that the husband had engaged in a pattern of obstructive and unreasonable conduct, which had unnecessarily prolonged the litigation and increased the wife's legal expenses. Applying the principles governing indemnity costs, which are awarded in exceptional circumstances where a party's conduct has been vexatious, unreasonable, or caused significant prejudice to the other party, the court concluded that such an order was appropriate.

Consequently, the court ordered that the husband pay the wife’s costs of and incidental to the proceedings on an indemnity basis, fixed in the sum of $157,688, to be paid within 30 days. All other extant applications were dismissed.

Orders

Orders of the court

That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, calculated on an indemnity basis and fixed in the sum of $157,688.

That all extant applications be otherwise dismissed.

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

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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