Cornish & Cornish (No. 3)

Case [2021] FamCA 438

FAMILY COURT OF AUSTRALIA

Cornish & Cornish (No. 3) [2021] FamCA 438

File number(s): MLC 12589 of 2019
Judgment of: WILLIAMS J
Date of judgment: 25 June 2021
Catchwords: FAMILY LAW – COSTS – s 117 of the Family Law Act 1975 (Cth) – Justifying circumstance for order for costs – Unacceptable conduct – Party/party costs.
Legislation: Family Law Act 1975 (Cth) s 117(1), 117(2), 117(2A)
Cases cited:

Cornish & Cornish (No. 2) [2020] FamCA 1090

Cornish & Cornish [2020] FamCA 962

Marriage of I & I (No. 2) (1995) 22 Fam LR 557

Worth & Worth (No.2) [2019] FamCAFC 126
Number of paragraphs: 48
Date of last submission/s: 29 April 2021
Date of hearing: 13 April 2021
Place: Melbourne
Solicitor for the Applicant: Mr Guo
Solicitor for the Applicant: GR Lawyers
Counsel for the Respondent: Mr Dunlop
Solicitor for the Respondent: Taussig Cherrie Fildes
Counsel for the Intervener: Mr Cain
Solicitor for the Intervener: Andrew Croxford And Associates Pty Ltd

ORDERS

MLC 12589 of 2019
BETWEEN:

MR CORNISH

Applicant
AND:

MS CORNISH

Respondent

MR WALEY

Intervener

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

25 JUNE 2021

THE COURT ORDERS THAT:

1.The husband pay the party/party costs and disbursements of the putative second respondent, Mr Waley, of and incidental to:

(a)the Application in a Case dated 17 January 2021, which was sealed on 22 January 2021;

(b)preparation of the costs submissions;

as agreed, and in default of agreement, to be taxed.

2.The payment referred to in order (1) hereof be made within 30 days of agreement as to quantum, or failing agreement within 30 days of the determination of the taxed costs.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Williams J

  1. This matter was listed in the Judicial Duty List on 13 April 2021.  One of the issues for determination was whether the husband should pay the costs of the putative respondent, Mr Waley, the wife’s brother, arising out of the husband’s application to join him as second respondent to the substantive property proceedings.  I made orders that the parties file and serve written costs submissions.

  2. The husband and the wife are in dispute about the parenting arrangements for their daughter and a division of matrimonial property.  Since the Initiating Application was filed on 7 November 2019 there have been numerous interim applications filed by both parties.  A number of the applications were heard and determined by me in Cornish & Cornish [2020] FamCA 962 and a…

Continue reading Cornish & Cornish (No. 3)

Sign in free to access the full text

Details
AGLC
Cornish & Cornish (No. 3) [2021] FamCA 438
Case
[2021] FamCA 438
Decision Date

CaseChat Overview and Summary

In the matter of MLC 12589 of 2019, Mr Cornish (the husband) was the applicant and Ms Cornish (the wife) was the respondent. Mr Waley intervened in the proceedings. The dispute concerned an application made by the husband against the wife's brother, Mr Waley, and the subsequent claim for costs by Mr Waley. The decision was made by Williams J.

The primary legal issue before the court was whether there were justifying circumstances, pursuant to section 117 of the *Family Law Act 1975* (Cth), to make an order for costs against the husband in favour of Mr Waley, and if so, whether those costs should be on an indemnity or party/party basis. The court was required to consider the husband's conduct in the proceedings as it related to Mr Waley's involvement and the claim for costs.

Williams J found that the husband's conduct was unacceptable and warranted an order for costs. This conduct included the husband being warned of a lack of prospect of success, potentially having an ulterior and malicious motive, making irrelevant claims against Mr Waley, unduly prolonging proceedings with groundless contentions, and imprudently refusing to resolve the joinder of Mr Waley until late in the proceedings. The husband had also been on notice of the intended claim for indemnity costs since February 2021. Despite these findings, the court was not persuaded that the circumstances were exceptional enough to warrant an order for indemnity costs.

Consequently, the court ordered that the husband pay the party/party costs and disbursements of Mr Waley, in relation to the husband's application dated 17 January 2021 and the preparation of costs submissions. These costs were to be agreed between the parties or, in default of agreement, taxed. Payment was to be made within 30 days of agreement as to quantum or within 30 days of the determination of taxed costs.

Orders

Orders of the court

MLC 12589 of 2019

BETWEEN:

MR CORNISH

Applicant

AND:

MS CORNISH

Respondent

MR WALEY

Intervener

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

25 JUNE 2021

THE COURT ORDERS THAT:

1. The husband pay the party/party costs and disbursements of the putative second respondent, Mr Waley, of and incidental to:

(a) the Application in a Case dated 17 January 2021, which was sealed on 22 January 2021;

(b) preparation of the costs submissions;

as agreed, and in default of agreement, to be taxed.

2. The payment referred to in order (1) hereof be made within 30 days of agreement as to quantum, or failing agreement within 30 days of the determination of the taxed costs.

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

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 17.02 Family Law Rules 2004 (Cth).

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

The conduct of the Husband which Mr Waley relies upon is as follows: (a)the husband should have known, and was warned he had no prospect of success;(b)it is possible to infer from his conduct that he had an ulterior and malicious motive in making application against the wife’s brother;(c)the husband made irrelevant claims and allegations against the wife’s brother;(d)the husband unduly prolonged the proceedings with groundless contentions against the wife’s brother relating to the U Street property;(e)until late in the afternoon before the matter was to resume on 13 April 2021, the husband imprudently refused to resolve the issue of whether the wife’s brother should properly be joined in the proceedings;(f)since the letter of 3 February 2021, the husband has been on notice of the intended claim for indemnity costs against him;(g)subsequent to that letter there has been numerous correspondence in relation to the issue of indemnity costs which is clear and unambiguous;(h)the wife’s brother should not be prejudiced and denied relief by way of recovery of costs on an indemnity basis, because of the correspondence between the parties. Conclusion The Husband opposes any order for costs, let alone indemnity costs and submits that each party should bear his own costs in the proceedings. I do not accept that submission for the reasons set out in the proceeding paragraphs. The conduct of the Husband is clearly unacceptable and in my view warrants an order for costs, when all of the relevant statutory considerations are addressed however, the appropriate costs remedy is to order costs on a party/party basis. I am not persuaded that the circumstances of this matter are so exceptional, as required by the authorities, that my discretion should be exercised to make an order for indemnity costs. I intend to make an order that the husband pay the party/party costs of Mr Waley of and incidental to the husband’s Application in a Case dated 17 January 2021 and sealed 22 January 2021 and including the costs of the preparation of the costs submissions, as agreed and in default of agreement, to be taxed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.