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Chifley and Ha

Chifley and Ha

Case [2017] FamCA 683 6 September 2017

Costs

Appeal

Civil Procedure

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FAMILY COURT OF AUSTRALIA

CHIFLEY & HA

[2017] FamCA 683

FAMILY LAW – PRACTICE AND PROCEDURE – JOINDER – Where the wife sought to join a third party to the proceedings on the basis of a claim pursuant to s 106B of the Family Law Act 1975 (Cth) – Where the wife failed to comply with the requirements in rule 6.03 of the Family Law Rules 2004 (Cth) – Where, at the commencement of the hearing, the wife abandoned her claim to join the third party.
FAMILY LAW – COSTS – INDEMNITY COSTS – Application for costs in relation to the wife’s application to join a third party to the proceedings – Whether it is appropriate to order indemnity costs – Where the wife, in maintaining her application to join the third party, caused significant costs to the third party without a proper basis for so doing – Where if the matter had proceeded the wife would have been unsuccessful in her claim against the third party – Order that the wife pay the third party’s costs on an indemnity basis as agreed or assessed.

Family Law Act 1975 (Cth) s 106B, 117(2A)
Family Law Rules 2004 (Cth) r 6.03

Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397
Lenova & Lenova(Costs) [2011] FamCAFC 141
Prantage & Prantage (2013) FLC 93-544
Yunghanns & Yunghanns (2000) FLC 93‑029

APPLICANT:

Ms Chifley

RESPONDENT:

Ms Ha

FILE NUMBER:

SYC

4064

2013

DATE DELIVERED:

6 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

In chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Finn Roache Lawyers
SOLICITOR FOR THE RESPONDENT:	Carlisle Attorneys

Orders

IT IS ORDERED

That the Respondent, Ms Ha pay the costs of the Applicant, Ms Chifley, in relation to the application filed by the Respondent, Ms Ha on 5 June 2017 seeking orders against the applicant, Ms Chifley including costs relating to legal advice from solicitor and counsel, correspondence and the attendance of counsel on 24 June 2017.
That such costs be paid on an indemnity basis, as assessed or agreed.

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 Chifley & Ha (Costs) 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 SYDNEY

FILE NUMBER: SYC 4064 of 2013

Ms Chifley

Applicant

And

Ms Ha

Respondent

REASONS FOR JUDGMENT

Before the Court is an application for costs made by Ms Chifley…

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 Chifley and Ha

Details

AGLC: Chifley and Ha [2017] FamCA 683
Case: [2017] FamCA 683
Decision Date: 6 September 2017

CaseChat Overview and Summary

In the matter of *Chifley and Ha*, the applicant, Ms Chifley, sought costs against the respondent, Ms Ha, following an application filed by Ms Ha on 5 June 2017. The application sought orders against Ms Chifley, including costs related to legal advice, correspondence, and counsel's attendance on 24 June 2017. The decision was made by Rees J.

The central legal issue before the court was the basis upon which Ms Ha should be ordered to pay Ms Chifley's costs. Specifically, the court was required to determine whether the costs should be awarded on a standard basis or an indemnity basis.

Rees J ordered that Ms Ha pay the costs of Ms Chifley in relation to Ms Ha's application filed on 5 June 2017. Crucially, the court ordered that these costs be paid on an indemnity basis, as assessed or agreed. This indicates that the court found circumstances warranting a higher level of cost recovery for Ms Chifley than would typically be awarded on a standard basis.

Orders

Orders of the court

IT IS ORDERED

That the Respondent, Ms Ha pay the costs of the Applicant, Ms Chifley, in relation to the application filed by the Respondent, Ms Ha on 5 June 2017 seeking orders against the applicant, Ms Chifley including costs relating to legal advice from solicitor and counsel, correspondence and the attendance of counsel on 24 June 2017.

That such costs be paid on an indemnity basis, as assessed or agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Chifley and Ha [2017] FamCA 683

Most Recent Citation

Cun & Zhihui (No 4) [2023] FedCFamC1F 581

Cases citing this decision · 5 of 5 shown

Wei & Xia (No 5)
[2023] FedCFamC1F 679

…; [2020] HCA 44 Colbeam Palmer Ltd v Stock Affilites Pty Ltd (1970) 122 CLR 25; [1968] HCA 50 Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212 Cook’s Construction v Brown (2004) 49 ACSR 62; [2004] NSWCA 105 Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 Crapp and Crapp (1979) FLC 90…
Cun & Zhihui (No 4)
[2023] FedCFamC1F 581 Para 33

…In Chiefley & Ha [2017] FamCA 683 at [57], (“ Chiefley ”) Rees J pointed out that the applicant must show an order for property settlement was actual or anticipated at the time of the impugned disposition, and the disposition is likely to defeat an order for property settlement. In Grech v Deak-Fabrikant (No 3) [20…
Stopford Malloy & Malloy
[2021] FamCA 100 Para 6

…In Chifley & Ha [2017] FamCA 683, Rees J dealt with an application for costs by a third party who was briefly joined by the filing of an Amended Initiating Application by the wife. No other document of any kind was provided to the third party. It was clear that rule 6.03(3) had not be complied with. The third party…
HAWKING & HAWKING
[2018] FamCA 890 Para 3

…Reference was also made to the decision of Rees J in Chifley & Ha [2017] FamCA 683, where her Honour dismissed an application to join a third party for the purposes of prosecuting a claim under s 106B of the Act. At [59], her Honour stated: At the time of the transaction in 2011, the parties had not separated and t…
Riemann & Riemann and Ors (No. 3)
[2017] FamCA 911 Para 3

…r for property settlement; ·That the transaction was not a bona fide transaction on the part of the person who benefited from the disposition. [8] [2017] FamCA 683 at [57].…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

Lenova & Lenova (Costs)
[2011] FamCAFC 141 Para 4

…In Lenova & Lenova (Costs) [2011] FamCAFC 141 the Full Court of the Family Court held: 10. In this jurisdiction, costs do not “follow the event”; the Act prescribes, relevantly, that “subject to subsection (2) … each party to proceedings under this Act shall bear his or her own costs” (s 117(1)). As a result, a litig…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 1

…vies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Mega…
Marks v GIO Australia Holdings Ltd
[1998] HCA 69 Para 2

…urisdiction to move away from the “usual rule” that costs are awarded on a party and party basis. In Marks v GIO Australia Holdings Ltd (1996) 137 ALR 579, Einfeld J gave reasons why the “usual rule” should no longer apply in the Federal Court of Australia. 81. The views expressed by Einfeld J were the subject of pro…
MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd (No 2)
[1996] FCA 862 Para 2

…udges, however, have continued to follow the established approach (see, for example, MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236) and it was recently applied by a Full Court in McHattan v Saramoa Charters Pty Ltd (unreported, Federal Court, Full Court, 17 September 1996). Moreover, one of the di…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 1

…Prantage & Prantage (2013) FLC 93-544 . The majority set out the principles to be applied, confirming that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 should continue to be applied in the Family Court of Australia.…
Thors v Weekes
[1989] FCA 795 Para 1

…em to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo ); the fact that the proceedi…
Ltd v Kenny and Good Pty Ltd
[1996] FCA 1746 Para 2

…In the joint judgment of Thackray and Ryan JJ, their Honours set out the settled law relating to indemnity costs and recorded as follows: 76. The law relating to indemnity costs has been well established in this jurisdiction for many years, a fact the trial Judge himself properly recognised. 77. Thi…
Re Wilcox, Ex parte Venture Industries Pty Ltd
[1996] FCA 1942 Para 2

…eld J were the subject of prompt criticism by the Full Court of the Federal Court in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151, where Black CJ said at 153: Recently, in Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128, Einfeld J expressed the view that it was wrong to begin any cons…
Maitland Hospital v Fisher
268 ALR 1 Para 1

…In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, Sheppard J set out some of the circumstances in which there might be a departure from the ordinary rule that costs are ordered on a party and party basis: … it is useful to note some of the circumstances which have been thought to warrant…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 1

…ue prolongation of a case by groundless contentions (Davies J in Ragata ); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of c…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
106B, 117(2A) 3 mentions (from Para 7)
Family Law Rules 2004 (Cth)
6.03 2 mentions (from Para 9)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 2)
Federal Court Rules 1979 (Cth)
1 mention (from Para 2)