FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Calvin & Calvin (No 2) [2023] FedCFamC1F 185
File number(s): BRC 4190 of 2019 Judgment of: HOGAN J Date of judgment: 23 March 2023 Catchwords: FAMILY LAW – COSTS – Where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – Where costs are ordered in a fixed amount. Legislation: Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2008) 38 Fam LR 478; [2007] FamCA 1178
Munday v Bowman (1997) FLC 92-784
Worth and Worth (No. 2) (2019) FLC 93-910; [2019] FamCAFC 126
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: First Instance Number of paragraphs: 22 Date of hearing: Determined in Chambers following the receipt of written submissions Place: Brisbane Solicitor for the Applicant: Watson Mangioni Lawyers Pty Limited Solicitor for the First Respondent: Fox & Thomas Solicitors Solicitor for the Second Respondent: Arnold Bloch Liebler Solicitor for the Third, Fourth and Fifth Respondents: Phillips Family Law ORDERS
BRC 4190 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CALVIN
Applicant
AND: MR CALVIN
First Respondent
CALVIN PTY LTD
Second Respondent
MR B CALVIN (and others named in the Schedule)
Third Respondent
order made by:
HOGAN J
DATE OF ORDER:
23 March 2023
THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Applicant pay, within 28 days of the date of this order, the First Respondent’s costs of and incidental to the applications determined by order made on 25 August 2022.
2.Pursuant to Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the costs referred to in Order 1 shall be fixed in the amount of $15,000.
3.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Applicant pay, within 28 days of the date of this order, the Third Respondent’s costs of and incidental to the applications determined by order made on 25 August 2022.
4.Pursuant to Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the costs referred to in Order 3 shall be fixed in the amount of $15,000.
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…
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- Calvin & Calvin (No 2) [2023] FedCFamC1F 185
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- [2023] FedCFamC1F 185
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CaseChat Overview and Summary
The court considered the principles governing costs in family law proceedings, which start with each party bearing their own costs. The court may order costs if it deems it just, subject to certain statutory provisions. The applicant was unsuccessful in her application, and the court found that the circumstances justified an order for costs against her. However, the court did not find the circumstances exceptional enough to order costs on an indemnity basis. The court ordered that the applicant pay the first and third respondents' costs, excluding those related to a specific objection, and that costs be on a party and party basis and payable in an agreed or assessed amount. The court did not order the applicant to pay the second respondent's costs, and found no basis for ordering costs against the fourth and fifth respondents.
The court's final orders were that the applicant pay the first and third respondents' costs, excluding certain specified costs, on a party and party basis, and in an amount to be agreed or assessed. No order was made regarding costs for the second, fourth, and fifth respondents.
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
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Ratio Decidendi
Legal Principle Established
In addition to these general submissions, the Applicant also made the following submissions, in essence, in relation to each of the following Respondents individually:(a)the First Respondent: any order for costs should exclude any costs associated with the Third Respondent’s objection to the Applicant’s affidavit, should be on the party and party basis and, given the absence of “breakdown” in the estimate of the costs relied on by the First Respondent, should be in an amount agreed or assessed on that basis; and(b)the Second Respondent: whilst the amount claimed is modest, no order as to costs should be made for the reasons set out in paragraph 12(d) but, if the Court determined to make any order, costs should be on the party and party basis and payable in an amount agreed or assessed on that basis; and(c)the Third Respondent: any order for costs should exclude the costs associated with the Third Respondent’s objection to the Applicant’s affidavit and should be on the party and party basis and payable in an amount agreed or assessed on that basis; and(d)the Fourth and Fifth Respondents: there should be no order as to costs because they did not take any active role in the proceedings.Applicable principles and consideration It is clear that the starting point in relation to costs in proceedings under the Act is that each party bears their own costs.[8] It is also clear that, if it is of the opinion that there are circumstances that justify it in doing so, the Court may, subject relevantly to s 117(2A) of the Act, make such order as it considers just.[9][8] Family Law Act 1975 (Cth) s 117(1).[9] Family Law Act 1975 (Cth) s 117(2). Having regard to the submissions made on behalf of the parties, the Reasons expressed on 25 August 2022 when the Application was dismissed and the fact that the Applicant was wholly unsuccessful in the prosecution of her application for enforcement, I am of the opinion that the circumstances justify the making of an order that the Applicant pay the First and Third Respondent’s costs of and incidental to the Application, with such costs to exclude any costs associated with the application made by the Third to Fifth Respondents to strike out correspondence dated 29 April 2021 which had been exhibited to the Applicant’s affidavit. However, having regard to the Applicant’s submissions summarised above in paragraph 12(d), I am not persuaded that the circumstances justify the making of an order that the Applicant pay the Second Respondent’s costs of and incidental to the Application. There is, in my view, no basis for an order that the Applicant pay the Fourth and Fifth Respondents’ costs, which was not really sought in any event. I am not, though, persuaded that the circumstances here are exceptional or otherwise of such a nature as to justify the Court departing from the usual basis on which costs are ordered to be paid;[10] I am not persuaded that it would be just to order that the Applicant pay the costs sought on the indemnity basis, particularly given the amount of the same and noting that the Respondents’ submissions were that the relief sought by the Applicant was so obviously doomed to fail. Consequently, I decline to accede to the Respondents’ application that costs be ordered on the indemnity basis. [10]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; In the Marriage of Kohan (1993) FLC 92-340; Yunghans & Yunghans (2000) FLC 93-029; Limousin & Limousin (Costs) (2007) 38 FamLR 478.