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Chtibi and Chtibi and Ors

Chtibi and Chtibi and Ors

Case [2018] FamCA 1095 19 December 2018

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FAMILY COURT OF AUSTRALIA

CHTIBI & CHTIBI AND ORS

[2018] FamCA 1095

FAMILY LAW – COSTS – Where additional respondents joined as parties by the wife – Where the wife failed to comply with directions as to filing an amended application setting out with particularity orders sought against the additional respondents – Where the additional respondents were consequently removed as parties – Where the additional respondents seek an order for costs against the wife – Where discussion of applicable principles – Where wife ordered to pay costs

Family Law Act 1975 (Cth) ss 106B, 117
Family Law Rules 2004 (Cth) r 6.03, 19.08, 19.10, 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
Collins & Collins (1985) FLC 91-603
D & D (Costs) (No 2) [2010] FamCAFC 64
Fennessy & Gregorian [2009] FamCAFC 44
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell & Harris (Costs) [2018] FamCAFC 180
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Joyce & Fante [2013] FamCAFC 141
Limousin & Limousin [2007] FamCAFC 1178
Luadaka & Luadaka (1998) FLC 92-830
Marny and Anor & Garnett and Anors [2014] FamCA 247
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Ms A Chtibi

FIRST RESPONDENT:

Mr B Chtibi

SECOND RESPONDENT:

Mr C Chtibi

THIRD RESPONDENT:

Ms D Chtibi

FILE NUMBER:

PAC

3587

2015

DATE DELIVERED:

19 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 5 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Barber of Barber Lawyers

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Bond of Bond Lawyers

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Mr Bainbridge of Bainbridge Legal

Orders

That the wife pay the costs of the Second and Third Respondents in the sum of $5,959.25 within two months from this date.
That otherwise the application for costs be 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 Chtibi & Chtibi and Ors 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 PARRAMATTA

FILE NUMBER: PAC 3587 of 2015

Ms A Chtibi

Applicant

And

Mr B Chtibi

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.

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Details

AGLC: Chtibi and Chtibi and Ors [2018] FamCA 1095
Case: [2018] FamCA 1095
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the application for costs was brought by the second and third respondents against the wife, Ms A Chtibi. The proceedings concerned final property adjustment between the wife and the first respondent, Mr B Chtibi. The second and third respondents were initially joined as parties by the wife, but were subsequently discharged from the proceedings due to the wife's failure to comply with court directions regarding the filing of an amended application that particularised the orders sought against them.

The primary legal issue before the Court was whether to grant the application for costs by the second and third respondents against the wife. This required the Court to consider the principles governing costs orders under section 117 of the *Family Law Act 1975* (Cth), including the discretion afforded to the Court to make such orders as it considers just, particularly where circumstances justify it. The Court also had to consider the factors outlined in section 117(2A) of the Act, which include the conduct of the parties, whether proceedings were necessitated by a failure to comply with previous orders, and whether any party has been wholly unsuccessful. The Court was also asked to consider the method of calculation of costs, as provided for in Rule 19.18 of the *Family Law Rules 2004* (Cth).

The Court reasoned that the wife's failure to comply with multiple court orders, specifically those requiring her to file an amended application with particularity against the second and third respondents, constituted a failure to comply with previous orders. This conduct, coupled with the fact that the second and third respondents were ultimately discharged as parties, provided sufficient justification for an order for costs. The Court noted that while costs are generally borne by each party, section 117(2) allows for orders to be made where circumstances justify it, and that the factors in section 117(2A) are not to be read restrictively. The Court also referred to the principle that costs can be fixed at a specific amount to avoid further expense and delay.

The Court ordered that the wife pay the costs of the second and third respondents in the sum of $5,959.25 within two months. Otherwise, the application for costs was dismissed.

Orders