Bestari & Henley (No 2) - [2022] FedCFamC1F 1055

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bestari & Henley (No 2) [2022] FedCFamC1F 1055

File number: CAC 2301 of 2021

Judgment of: GILL J

Date of judgment: 22 December 2022

Catchwords: FAMILY LAW – COSTS – Indemnity costs in relation to an aspect of the proceedings – Conduct – Where the husband agitated parallel proceedings in Country B – Where husband’s conduct has been vexatious, oppressive and abuse of process – Where the wife has been largely successful in her application – Consideration of factors in s 117 of the Family Law Act 1975 (Cth) – Costs awarded to the wife on an indemnity basis.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Anison & Anison [2019] FamCAFC 108

Bant & Clayton (Costs) [2016] FamCAFC 35

Parke & The Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Prantage & Prantage [2013] FamCAFC 105

Quickley & Pelissier [2016] FamCAFC 124

Robinson & Higginbotham (1991) FLC 92-209

Division: Division 1 First Instance

Number of paragraphs: 41

Date of last submission/s: 16 December 2022

Place: In Chambers

Counsel for the Applicant: Dr J Behrens

Solicitor for the Applicant: Hosking & Gosling Legal

Solicitor for the Respondent: Delaney Lawyers
ORDERS

CAC 2301 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BESTARI

Applicant

AND:
MR HENLEY

Respondent

order made by:

GILL J

DATE OF ORDER:

22 december 2022

THE COURT ORDERS THAT:
1.The husband pay the wife’s costs, as agreed or assessed, in relation to the forum/stay/anti-suit injunction aspects of the wife’s Amended Application in Proceedings dated 31 October 2022 and the husband’s Response to an Application in Proceedings dated 8 November 2022 on an indemnity basis calculated in accordance with the terms of the Costs Disclosure and Costs Agreement between the wife and her legal representatives.
2.In calculating the quantum of the indemnity costs, costs that are incurred unreasonably, or in an unreasonable amount are to be excluded.

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 the pseudonym Bestari & Henley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:

This judgment concerns an application for costs, on an indemnity basis, made by the mother following interim proceedings that were the subject of a 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 Bestari & Henley (No 2)

Details

AGLC: Bestari & Henley (No 2) [2022] FedCFamC1F 1055
Case: [2022] FedCFamC1F 1055
Decision Date

CaseChat Overview and Summary

Bestari & Henley (No 2) involves a costs application brought by a wife against her husband. The dispute is centred on the costs incurred by the wife during the proceedings, specifically those related to a forum/stay/anti-suit injunction. The court was tasked with determining the appropriate allocation of costs between the parties, particularly whether the wife was entitled to indemnity costs for her application and the husband’s response.

The central legal issue was whether the wife should be granted indemnity costs for her entire application, considering the circumstances of the case and the relief she sought. The court had to balance the principle that each party should bear their own costs against the wife's request for indemnity costs, given that such relief was not fully granted. The court also considered the terms of the Costs Disclosure and Costs Agreement between the wife and her legal representatives in making its decision.

The court ruled that the wife was entitled to costs from the husband on an indemnity basis, but only in relation to the forum/stay/anti-suit injunction aspect of her application and the husband’s response. The court emphasised that the starting point should be each party bearing their own costs, but in this instance, the husband would pay the wife's costs as agreed or assessed, excluding those deemed unreasonable or incurred to an unreasonable extent. The court's decision was based on the specific nature of the relief sought and the partial success of the wife’s application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The wife seeks her costs in a fixed sum in relation to the costs application. However, the starting point that each party bear their own costs should not be departed from in relation to this aspect, noting the above circumstances, but also that the wife’s application was for the indemnity costs for her whole application, a relief that has not been granted.Conclusion Orders will be made for the husband to pay the wife’s costs, as agreed or assessed, in relation to her application in a proceedings, and his response to such, insofar as that application and response pertained to forum/stay/anti-suit injunction, on an indemnity basis, excluding costs that were unreasonable to have been incurred, or incurred to an unreasonable amount, calculated in accordance with the terms of the Costs Disclosure and Costs Agreement between the wife and her legal representatives.

Ratio Decidendi

Legal Principle Established

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File number:	CAC 2301 of 2021
Judgment of:	GILL J
Date of judgment:	22 December 2022
Catchwords:	FAMILY LAW – COSTS – Indemnity costs in relation to an aspect of the proceedings – Conduct – Where the husband agitated parallel proceedings in Country B – Where husband’s conduct has been vexatious, oppressive and abuse of process – Where the wife has been largely successful in her application – Consideration of factors in s 117 of the Family Law Act 1975 (Cth) – Costs awarded to the wife on an indemnity basis.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Anison & Anison [2019] FamCAFC 108 Bant & Clayton (Costs) [2016] FamCAFC 35 Parke & The Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage [2013] FamCAFC 105 Quickley & Pelissier [2016] FamCAFC 124 Robinson & Higginbotham (1991) FLC 92-209
Division:	Division 1 First Instance
Number of paragraphs:	41
Date of last submission/s:	16 December 2022
Place:	In Chambers
Counsel for the Applicant:	Dr J Behrens
Solicitor for the Applicant:	Hosking & Gosling Legal
Solicitor for the Respondent:	Delaney Lawyers

CAC 2301 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BESTARI Applicant
AND:	MR HENLEY Respondent

order made by:	GILL J
DATE OF ORDER:	22 december 2022