Campbell & Diboll (No 4) - [2022] FedCFamC1F 237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Campbell & Diboll (No 4) [2022] FedCFamC1F 237

File number: WOC 455 of 2013

Judgment of: GILL J

Date of judgment: 11 April 2022

Catchwords:
FAMILY LAW – PROCEDURE – Slip Rule – Where the primary judgment predicated on identifying proper costs claimable by applicant liquidators – Liquidators sought variation of primary order to incorporate GST under the slip rule – No GST amount identified or pursued in primary hearing by the liquidators – Application dismissed – Costs awarded to respondent.

FAMILY LAW – COSTS – Indemnity costs – cumulation of factors.

Legislation:
Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth) s 117

Federal Circuit Court Rules 2001 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(e) and r 10.13(1)(h)

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Harrell & Nesland (No. 2) (2021) 62 Fam LR 230

Kohan and Kohan (1993) FLC 92-340

Penfold v Penfold (1980) FLC 90-800

Phillips & Hansford [2020] FamCAFC 28

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 11 April 2022

Place: Canberra

Counsel for the Applicant: Mr Lipp

Solicitor for the Applicant: Chamberlains Law Firm

Counsel for the Respondent: Mr Moller

Solicitor for the Respondent: Farrar Gesini Dunn
ORDERS

WOC 455 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR X & MR Z

Applicant

AND:
MS DIBOLL

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

11 APRIL 2022

THE COURT ORDERS THAT:
1.The application in proceedings filed 22 February 2022 seeking variation under the slip rule made by the applicant liquidators (“the liquidators”) is dismissed.
2.The liquidators pay the respondent’s costs of and incidental to the substantive proceeding, save for the respondent’s costs of her application in a case filed 31 October 2019.
3.The costs payable pursuant to Order 2 be paid:
(a)on an indemnity basis fixed in the sum of $123,424.71;
(b)within 28 days; and
(c)into the trust account of Farrar Gesini Dunn.

4.The liquidators are to pay the respondent’s costs of, and incidental to, the liquidator’s application filed 22 February 2022.
5.The costs payable pursuant to Order 4 be paid:
(a)on an indemnity basis;
(b)in aid of determining the quantum:
(i)the liquidators shall file and serve material to be relied upon restricted to quantum within seven days of today’s date;
(ii)the respondent shall file and serve the material to be relied upon restricted to quantum within 14 days of today’s date;
(iii)either party is at liberty to relist the matter before me to deal with quantum within 21 days of today’s date; and
(iv)failing agreement or exercise of liberty, the costs shall be thereafter as assessed on an indemnity basis.

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…

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 Campbell & Diboll (No 4)

Details

AGLC: Campbell & Diboll (No 4) [2022] FedCFamC1F 237
Case: [2022] FedCFamC1F 237
Decision Date

CaseChat Overview and Summary

In Campbell & Diboll (No 4), the Federal Circuit and Family Court of Australia dealt with an application by liquidators to amend a primary judgment concerning costs and a subsequent costs application. The liquidators sought to amend the primary judgment to include GST and additional sums they claimed were owed by the respondent, Ms Diboll. The primary judgment had dismissed the liquidators' application for enforcement of costs and ordered a refund to Ms Diboll. The liquidators argued that the omission of GST and additional sums was a "slip" that should be corrected under the slip rule provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Court, however, found that the primary judgment correctly reflected the liquidators' case as presented, which did not include a claim for GST or the additional sums. The Court held that the application for amendment was misconceived as it attempted to recast the case rather than correct an error or omission. Therefore, the application under the slip rule was dismissed.

The Court also addressed the costs application, noting that under the Family Law Act 1975 (Cth), each party generally bears their own costs unless exceptional circumstances warrant a different order. The Court considered the liquidators' unsuccessful pursuit of their claim, their inconsistent and misconceived legal strategies, and their unreasonable resistance to orders as factors justifying an indemnity costs order in favour of Ms Diboll. The Court also took into account Ms Diboll's offer to settle in November 2019 for an additional $25,000. The Court ordered that Ms Diboll's costs of and incidental to the substantive proceeding be paid on an indemnity basis, with exceptions for certain unsuccessful applications and a discount for the failed summary dismissal application. The liquidators were also ordered to pay Ms Diboll's costs of their slip rule application and to pay costs on an indemnity basis for the determination of the quantum of their costs.

The final orders included the dismissal of the liquidators' application for variation of the primary judgment, the refusal to amend the judgment to include GST and additional sums, and the imposition of indemnity costs on the liquidators for the substantive proceeding and their application, with exceptions for certain unsuccessful applications and a discount for the failed summary dismissal application. The costs were to be paid within a specified timeframe and into the trust account of Ms Diboll's solicitors. The form of the order was subject to review or variation as permitted by the Court's rules.

Orders