FAMILY COURT OF AUSTRALIA
| CARDUS & LAVRICK (NO. 2) | [2020] FamCA 1103 |
| FAMILY LAW – COSTS – Circumstances justifying order - Where mother seeks indemnity costs against father - Where father submits that he is impecunious and denies that his motives in the litigation were malicious or vexatious - Where father was wholly unsuccessful in the substantive proceeding and it was found by the Court that the institution and maintenance of the proceedings constituted an abuse of process – Where father fails to prove his claims of impecuniosity - Whether impecuniosity or incapacity to meet a costs order can, per se, be determinative – Where it is found that the father’s conduct throughout the proceedings and the fact that he was wholly unsuccessful justifies the making of a costs order against him - orders that the father pay the costs of the mother on an indemnity basis – Whether costs should be fixed in a specific amount – Orders made fixing costs in a specific amount. |
| Family Law Act 1975 (Cth) ss 64B(2)(g), 102QB(1)(a), 117(1), 117(2), 117(2A), 117(2A)(c), 117(2A)(e) Family Law Rules 2004 (Cth) rr 19.18(1)(a), 19.34 |
| Akhtar & Gaber (No. 2) [2018] FamCAFC 176 Baillieu v Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 Baum & Lokare (No 2) [2019] FamCA 292 Colgate-Palmolive and Anor v Cussons Proprietary Limited (1993) 46 FCR 225 Cooper & Oakley (No. 2) [2012] FamCAFC 187 D & D (Costs) (No. 2) (2010) FLC 93-435 Danks & McCabe (2017) FLC 93-767 Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Gerlach & Gerlach [2020] FamCA 841 Kohan and Kohan (1993) FLC 92-340 Limousin v Limousin (Costs) (2007) 38 Fam LR 478 Munday v Bowman (1997) FLC 92-784 Spencer and Spencer (No 3) [2020] FamCAFC 145 Stoian & Fiening [2014] FamCA 944 Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6 Ugly Tribe Co. Pty Ltd v Sikola [2001] VSC 189 Yunghanns v Yunghanns (2000) FLC 93-029 Wilmer & Golding (No 2) (2017) 59 Fam LR 1 Wrenstead v Eades [2016] FLC 93-697 |
| APPLICANT: | Mr Cardus |
| RESPONDENT: | Ms Lavrick |
| FILE NUMBER: | MLC | 8313 | of | 2018 |
| DATE DELIVERED: | 21 December 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | McEvoy J |
| HEARING DATE: | 31 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented |
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Carne |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
As soon as practicable an affidavit be filed on behalf of the mother deposing to the costs as itemised in the schedule which is Annexure A to the mother’s submissions filed 31 August 2020.
Subject to the mother’s compliance with order 1 hereof, pursuant to rule 19.18(1)(a) of…
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- AGLC
- Cardus and Lavrick (No 2) [2020] FamCA 1103
- Case
- [2020] FamCA 1103
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the father's alleged impecuniosity or incapacity to meet a costs order could, in itself, be determinative in preventing an order for indemnity costs. The Court was also required to determine whether the father's conduct throughout the proceedings and his complete lack of success justified making a costs order against him on an indemnity basis, and if so, whether those costs should be fixed at a specific amount.
McEvoy J reasoned that impecuniosity or an inability to pay costs does not, per se, preclude an order for indemnity costs. The Court found that the father's conduct throughout the proceedings, coupled with the fact that he was wholly unsuccessful and had abused the process of the Court, justified making an order for indemnity costs in favour of the mother. The Court further determined that it was appropriate to fix these costs in a specific amount.
Consequently, the Court ordered that the mother file an affidavit itemising her costs. Subject to compliance with this order, the mother's costs were fixed at $111,675.77 pursuant to rule 19.18(1)(a) of the *Family Law Rules 2004*. The father was ordered to pay this sum to the mother within ninety days of the filing of the affidavit.
Orders
Orders of the court
1.
As soon as practicable an affidavit be filed on behalf of the mother deposing to the costs as itemised in the schedule which is Annexure A to the mother’s submissions filed 31 August 2020.
2.
Subject to the mother’s compliance with order 1 hereof, pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 the mother’s costs be fixed in the amount of $111,675.77.
3.
The father is to pay to the wife the sum of $111,675.77 within ninety (90) days of the date on which an affidavit is filed in accordance with order 1 hereof.
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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