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Cabb and Cabb (No 2)

Cabb and Cabb (No 2)

Case [2013] FamCA 921 27 November 2013

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FAMILY COURT OF AUSTRALIA

CABB & CABB (NO 2)

[2013] FamCA 921

FAMILY LAW – COSTS – BASES ON WHICH COSTS CAN BE ORDERED – Where the husband seeks an order for costs against the wife arising from an application for summary dismissal in which the husband was successful – Where the husband seeks indemnity costs – Consideration of factors set out in s 117(2A) of the Family Law Act 1975 (Cth) – Analysis of the case law with respect to the Court’s power to order costs on a party/party, solicitor/client or an indemnity basis – Where the Court determined to make an order for costs on a solicitor/client basis and to certify for Senior Counsel.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Australian Transport Insurance Pty Ltd & Anor v Graeme Phillips Road Transport Insurance Pty Ltd& Ors (1986) 71 ALR 287

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd & Ors (1988) 81 ALR 397

Hand & Bodilly [2013] FamCAFC 98

Prantage & Prantage [2013] FamCAFC 105
Re WilCabb, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

APPLICANT:

Mr Cabb

RESPONDENT:

Ms Cabb

FILE NUMBER:

SYC

6670

2010

DATE DELIVERED:

27 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

REES J

HEARING DATE:

In chambers – written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grieve QC

SOLICITOR FOR THE APPLICANT:

Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Stenmark SC with Mr Grew of Counsel

SOLICITOR FOR THE RESPONDENT:

Southern Legal

Orders

IT IS ORDERED

That the wife pay the husband’s costs of the application for summary dismissal filed 5 February 2013 on a solicitor/client basis as assessed or agreed.
Certify for Senior Counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cabb & Cabb (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6670 of 2010

Mr Cabb

Applicant

And

Ms Cabb

Respondent

REASONS FOR JUDGMENT

background

Before the Court is an application for costs by Mr Cabb (“the husband”) filed 3 September 2013. The respondent is Ms Cabb (“the wife”).
The application arises from proceedings between the parties for property settlement which were commenced on 17 September 2010 and concluded in the National Court of Justice of Country B on 28 December 2011, and unsuccessfully appealed. The wife commenced proceedings for property settlement in Australia on 21 October 2010.
The husband filed an application to restrain the wife from proceedings in Australia, contending that the wife was estopped by the doctrine of res judicata. That application was successful and an order was made (“the anti-suit injunction”) restraining the wife from pursuing the Australian suit on 8 November 2010.
The history of the proceedings in Country B and in Australia is set out in the judgment delivered on 7 August 2013.
The husband seeks indemnity costs. 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 Cabb and Cabb (No 2)

Details

AGLC: Cabb and Cabb (No 2) [2013] FamCA 921
Case: [2013] FamCA 921
Decision Date: 27 November 2013

CaseChat Overview and Summary

In *Cabb and Cabb (No 2)*, Rees J of the Family Court of Australia considered an application for summary dismissal. The specific nature of the dispute between the parties, the husband and wife, is not detailed in the provided text, beyond the fact that the wife was ordered to pay the husband's costs of this application.

The central legal issue before the court was whether the husband's application for summary dismissal should be granted. The court was required to determine the appropriate basis for assessing the costs associated with this application.

Rees J ordered that the wife pay the husband's costs of the application for summary dismissal filed on 5 February 2013. Crucially, these costs were to be assessed on a solicitor/client basis, indicating a higher level of indemnity than standard party/party costs. The court also certified that the matter warranted the briefing of Senior Counsel.

Orders

Orders of the court

IT IS ORDERED

That the wife pay the husband’s costs of the application for summary dismissal filed 5 February 2013 on a solicitor/client basis as assessed or agreed.

Certify for Senior Counsel.

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

Cabb and Cabb (No 2) [2013] FamCA 921

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Prantage & Prantage
[2013] FamCAFC 105 Para 1

…The Full Court has most recently considered the law in relation to indemnity costs in Prantage & Prantage [2013] FamCAFC 105 (“ Prantage ”). The majority (Thackray and Ryan JJ) set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (199…
Hand & Bodilly
[2013] FamCAFC 98 Para 1

…In Hand & Bodilly [2013] FamCAFC 98 (“ Hand & Bodilly ”) the Full Court (per Faulks DCJ, Ryan and Watts JJ) considered the appropriateness of an order for indemnity costs, where party/party costs or solicitor/client costs could be ordered. Rule 19.18 of the Rules provides: (1)That the court may order that a party is…
Christie v Christie
[2007] FamCA 125 Para 7

…ave been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another case cited in argument was Australian Guarantee Corporation Ltd v De Jager [1984…
Bouras v Grandelis
[2005] NSWCA 463 Para 3

…er: 102.… Sometimes that discussion equates “solicitor and client” costs with “indemnity” costs but as Santow JA said in Bouras v Grandelis (2005) 65 NSWLR 214: 125. The weight of authority is that solicitor and client costs and indemnity costs are distinct, though the difference between them has been eroded by practi…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 6

…n Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal) ; Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 1

…(“ Prantage ”). The majority (Thackray and Ryan JJ) set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 (“ Colgate-Palmolive v Cussons ”) should continue to be applied in the Family Court of Australia. The principles (as summarised by Cooper and…
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3)
[1979] FCA 143 Para 7

…J said: That discretion is “absolute and unfettered”, but must be exercised judicially ( Trade Practices Commission v Nicholas Enterprises (1979) 28 ALR 201 at 207). Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases where…
Thors v Weekes
[1989] FCA 795 Para 6

…false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedings were c…
Re Wilcox, Ex parte Venture Industries Pty Ltd
[1996] FCA 1942 Para 1

…ed in the Family Court of Australia. The principles (as summarised by Cooper and Merkel JJ in Re WilCabb, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 at 156-157) were reproduced in Prantage at [82]: 82. ……
Andrews v Barnes
(1888) 39 ChD 133 Para 7

…the allegations of fraud have been made knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another ca…
Forester v Read
(1870) 6 Ch App 40 Para 7

…de knowing them to be false, or they have been irrelevant to the issues between the parties: see Andrews v Barnes (1888) 39 Ch D 133; Forester v Read (1870) 6 LR Ch App 40 Christie v Christie (1873) 8 LR Ch App 499; Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354. Another case cited in argument was Australian…
Maitland Hospital v Fisher
268 ALR 1 Para 6

…When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive v Cussons at 257 where his Honour reviewed the authorities and said: 4. …The tests have been variously put. The Court of Appeal…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 6

…ngation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal) ; Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 15)