Catlin & Catlin - [2018] FamCA 235

FAMILY COURT OF AUSTRALIA

CATLIN & CATLIN

[2018] FamCA 235

FAMILY LAW – COSTS – Where the wife asserts that the husband was wholly unsuccessful – Where the husband asserts that the wife was not wholly successful – Whether the wife was substantially successful – Whether costs should be on an indemnity or party and party basis – Quantum of costs – Where the husband argues that the wife proceeded prematurely – Consideration of costs pursuant to section 117(2A) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules 2004 (Cth) rr 19.08(1), 19.08(3), 19.18(1), 19.18(3)

Kohan & Kohan (1993) FLC 92-340 Penfold & Penfold (1980) FLC 90-800 Prantage & Prantage (2013) FLC 93-544 Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
APPLICANT:	Ms Catlin

RESPONDENT:

Mr Catlin

FILE NUMBER:

ADC

748

2014

DATE DELIVERED:

17 April 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

16 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Tinning

SOLICITOR FOR THE APPLICANT:

Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT:

Mr Ower SC

SOLICITOR FOR THE RESPONDENT:

1878 Elix Lawyers

Orders

That the husband pay to the Trust Account of Tindall Gask Bentley for and on behalf of the wife her costs fixed in the sum of TWENTY THOUSAND FOUR HUNDRED AND FIFTY DOLLARS ($20,450) inclusive of GST on or before fourteen (14) days from the date of this order.
That if the applicant shall fail to pay the costs sum as provided for herein THEN interest shall run on the outstanding amount of such payment from the date of default to the date of payment as prescribed by the Family Law Rules.
That the application for costs do otherwise stand dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Catlin & Catlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 748 of 2014

Ms Catlin

Applicant

And

Mr Catlin

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Application in a Case filed 10 July 2017 Ms Catlin (“the wife”) sought to enforce the provisions of a binding financial agreement executed by the parties on 22 July 2016 and sought that Mr Catlin (“the husband”) pay costs of and incidental to the Amended Application on an indemnity basis, or on a party/party basis. By her Affidavit filed 14 February 2018 the wife seeks that the husband pay her costs of and incidental to…

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 Catlin & Catlin

Details

AGLC: Catlin & Catlin [2018] FamCA 235
Case: [2018] FamCA 235
Decision Date: 17 April 2018

CaseChat Overview and Summary

In the matter of *Catlin & Catlin*, Berman J of the Family Court of Australia considered an application for costs. The specific nature of the underlying dispute between the parties is not detailed in the provided text, but the proceedings concerned an application for costs made by one party against the other.

The central legal issue before the court was the determination of whether costs should be awarded, and if so, in what amount. The court was required to assess the merits of the costs application and make orders accordingly.

Berman J ordered that the husband pay the wife's costs fixed at $20,450 inclusive of GST within fourteen days. The order stipulated that interest would accrue on any outstanding amount from the date of default until payment, in accordance with the Family Law Rules. The application for costs was otherwise dismissed.

Orders

Orders of the court

That the husband pay to the Trust Account of Tindall Gask Bentley for and on behalf of the wife her costs fixed in the sum of TWENTY THOUSAND FOUR HUNDRED AND FIFTY DOLLARS ($20,450) inclusive of GST on or before fourteen (14) days from the date of this order.

That if the applicant shall fail to pay the costs sum as provided for herein THEN interest shall run on the outstanding amount of such payment from the date of default to the date of payment as prescribed by the Family Law Rules.

That the application for costs do otherwise stand dismissed.

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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