Carne & Ungaro

Case [2021] FCCA 1174

FEDERAL CIRCUIT COURT OF AUSTRALIA

Carne & Ungaro [2021] FCCA 1174

File number(s): SYC 8122 of 2017
Judgment of: JUDGE MONAHAN
Date of judgment: 28 May 2021
Catchwords: FAMILY LAW – Arbitration Costs – wife seeks costs against the husband  – costs sought on an indemnity basis – whether the court has jurisdiction to award costs where matter has been referred to arbitration – power of an arbitrator to award costs –where husband asserts that wife has filed her costs application ‘out of time’ – whether the principals of res judicata apply –whether the principles of issue estoppel or ‘Anshun’ estoppel apply – where property adjustment to wife well exceeded wife’s settlement offer – husband ordered to pay wife’s costs on a party/party basis.
Legislation: Family Law Act 1975 (Cth) ss 13E, 117
Family Law Regulations 1984 (Cth), reg 67Q
Family Law Rules 2004 (Cth) Chapter 19
Federal Circuit Court Rules 2001(Cth), r. 21.02, Sch 1
Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Fennessy & Gregorian [2009] FamCAFC 44; (2009) FLC 93-399

Hamersley Iron Pty Limited v The National Competition Council [2008) FCA 598

Harb & Harb [2020] FCCA 3544

Kohan & Kohan (1993) FLC 92-340; (1992) 16 Fam LR 245

Prantage & Prantage (Costs) [2013] FamCAFC 105

Yunghanns & Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331

Number of paragraphs: 98
Date of last submission/s: 1 June 2020
Date of hearing: 1 June 2020
Place: Sydney
Solicitor for the Applicant: Mr Reeve
Solicitor for the Respondent: Ms Nixon

ORDERS

SYC 8122 of 2017
BETWEEN:

MS CARNE

Applicant
AND:

MR UNGARO

Respondent

ORDER MADE BY:

JUDGE MONAHAN

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1.The Respondent pay the Applicant the sum of $25,132 as directed in writing by the Applicant within 42 days from the date of these orders (“the due date”) with interest to accrue on the sum at the rate set by Rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) from the due date until such time as the amount is paid in full.

2.All extant cost applications be otherwise dismissed.

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 under the pseudonym Carne & Ungaro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

  1. This determination arises from an Application in a Case filed by MS CARNE (“the Applicant”) against her former husband MR UNGARO (“the Respondent”) following an Arbitration of the parties’ property dispute.

  2. In summary, the Applicant seeks that her costs be paid by the Respondent on an indemnity basis, or in the alternative, on a party/party basis as agreed or assessed. The Applicant argues that a costs order should be made in circumstances inter alia where there is evidence that the…

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AGLC
Carne & Ungaro [2021] FCCA 1174
Case
[2021] FCCA 1174
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Ms Carne (the Applicant) and Mr Ungaro (the Respondent) were parties to property proceedings. The dispute concerned the payment of costs following an arbitration process that had been registered as a decree of the Court.

The primary legal issue before the Court was to determine the quantum of costs to be awarded and to make orders for their payment. The Court was also required to consider and dismiss extant cost applications.

Monahan J reasoned that a costs order was appropriate in the circumstances. The Court assessed the costs payable by the Respondent to the Applicant at $25,132. The Court ordered that the Respondent pay this sum to the Applicant within 42 days from the date of the orders, with interest to accrue on any unpaid amount at the rate prescribed by Rule 22.01 of the Federal Circuit Court Rules 2001. All other extant cost applications were dismissed.

Orders

Orders of the court

SYC 8122 of 2017

BETWEEN:

MS CARNE

Applicant

AND:

MR UNGARO

Respondent

ORDER MADE BY:

JUDGE MONAHAN

DATE OF ORDER:

28 MAY 2021

THE COURT ORDERS THAT:

1. The Respondent pay the Applicant the sum of $25,132 as directed in writing by the Applicant within 42 days from the date of these orders (“the due date”) with interest to accrue on the sum at the rate set by Rule 22.01 of the Federal Circuit Court Rules 2001 (Cth) from the due date until such time as the amount is paid in full.

2. All extant cost applications be otherwise dismissed.

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.

Background

Background to the litigation

Unless otherwise stated, any statutory references I make in these reasons will be to the Family Law Act 1975 (“the Act”), and to the Federal Circuit Court Rules 2001 (“the FCC Rules”).BACKGROUND The Applicant was born in 1972 and she is currently 48 years of age. The Respondent was born in 1968 and he is currently 52 years of age. The parties commenced cohabitation in 2003 and married in 2015. The parties separated during October 2016 and a divorce order was made on 5 March 2018. There are no children of the marriage. The Applicant filed her Initiating Application for property proceedings on 18 June 2018. The Respondent filed his Response on 24 August 2018. The proceedings came before me in a duty list on 29 August 2018 and on that occasion, I made orders for the parties to attend a Conciliation Conference with a Registrar of this Court on 22 November 2018. The parties duly attended that Conference but were unable to resolve their dispute. When the matter returned before me on 6 February 2019 the parties consented to orders pursuant to section 13E of the Act for their dispute to be referred to arbitration before Mr Giles Coakes (a former Judge of this Court). On 29 July 2019 the parties attended a pre-arbitration conference with Mr Coakes (“the Arbitrator”). On that occasion, the Arbitrator made directions for the provision of further disclosure and the filing and serving of material to be relied upon at hearing. Those directions were complied with by both parties and the arbitration was heard on 4 and 5 September 2019. At the conclusion of the arbitral hearing, the Arbitrator made directions that parties file written submissions according to a timetable. The parties each complied with this timetable. The Arbitrator also made directions that the parties had leave to approach in relation to any matter. On 2 December 2019 the Arbitrator handed down his Award and Reasons for Award. On 3 December 2019, the Applicant filed an Application to Register Arbitration Award. The Respondent did not seek to object to the registration of the Arbitration Award. On 9 January 2020 the parties complied with terms of Arbitration Award. This required the Applicant to transfer a property at Suburb B to the Respondent and for the Respondent to pay the Applicant the sum of $510,036.00. On 14 January 2020, I made orders that the Arbitration Award be registered as if it were a decree of this Court. On 11 February 2020, the Applicant filed the relevant costs application which came before me for directions on 4 May 2020. As the cost application was opposed, I listed it for hearing on 1 June 2020. The costs hearing duly proceeded before me on 1 June 2020. Following the hearing judgment was reserved. DOCUMENTS In addition to their written submissions, the parties asked the Court to read the following documents. Applicant The Applicant relied on the following:·Application in a Case filed 11 February 2020;·Her Affidavit sworn 7 February 2020;·Application to Register Arbitration Award filed 3 December 2019;·Affidavit of Service filed 3 December 2019; and·Her Affidavit sworn 13 August 2019.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court will allow the Respondent a period of 42 days in which to pay the amount of $25,132 in such method of payment as is directed in writing by the Applicant. If the amount is not paid by the due date then interest will interest to accrue on the amount at the rate set by Rule 22.01 of the FCC Rules from the due date until such time as the amount is paid in full. CONCLUSION The Court has found that a costs order should be made in this case. The Court has assessed that costs in the amount of $25,132 should be paid by the Respondent to the Applicant. The Respondent will have 42 days from the date of the Orders to pay the amount required. There will be Orders of the Court to reflect this decision.

Ratio Decidendi

Legal Principle Established

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