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Cornish & Cornish (No 4)

Cornish & Cornish (No 4)

Case [2024] FedCFamC1F 451 5 July 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornish & Cornish (No 4) [2024] FedCFamC1F 451

File number: MLC 12589 of 2019

Judgment of: CARTER J

Date of judgment: 5 July 2024

Catchwords: FAMILY LAW – COSTS – Application and cross application for costs on an indemnity basis – where indemnity costs are not appropriate – whether costs should be taxed – whether the court should fix costs – Costs order made against the husband in an amount fixed.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225

Cross v Beaumont (2008) 39 Fam LR 389

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

Kohan & Kohan (1993) FLC 92-340

Munday v Bowman (1997) FLC 92-784

Raymond & Raymond (No 2) [2024] FedCFamC1A 92

Stoian v Fiening (Costs) [2014] FamCA 944

Vang & Chung [2024] FedCFamC1A 25

Yunghanns v Yunghanns (2000) FLC 93-029

Division: Division 1 First Instance

Number of paragraphs: 75

Date of last submission/s: 3 July 2024

Date of hearing: 18 March 2024

Place: Melbourne

Solicitor for the Applicant: Marsdens Law Group

Solicitor for the Respondent: Taussig Cherie Fildes
ORDERS

MLC 12589 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CORNISH

Applicant

AND:
MS PEARCE AS PERSONAL LEGAL REPRESENTATIVE OF MS CORNISH

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

5 JULY 2024

THE COURT ORDERS THAT:
1.The husband pay the respondent’s costs fixed in the sum of $75,000.
2.All extant applications are otherwise dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

I made orders on a final basis on 1 February 2024, which were amended pursuant to the slip rule on 4 March 2024.
The background of this matter is extensive and is set out in my reasons for judgment delivered on 1 February 2024.
The husband’s cost application
The husband filed an Application in a Proceeding on 29 February 2024 and…

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 Cornish & Cornish (No 4)

Details

AGLC: Cornish & Cornish (No 4) [2024] FedCFamC1F 451
Case: [2024] FedCFamC1F 451
Decision Date: 5 July 2024

CaseChat Overview and Summary

The matter of Cornish & Cornish (No 4) involved the applicant, Mr. Cornish, and the respondent, Ms. Pearce, who appeared as the personal legal representative of Ms. Cornish. The dispute centered on an application and cross-application for costs on an indemnity basis following proceedings related to family law. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the appropriate costs order. The court was required to decide whether indemnity costs were suitable and, if not, whether the costs should be taxed or if the court should fix the costs.

The court considered the principles and discretion outlined in the Family Law Act 1975 (Cth) and the Family Law Rules 2021 (Cth) in relation to costs. The court determined that indemnity costs were not appropriate in this case, as they would not adequately reflect the actual costs incurred. The court also found that taxing the costs was not the most effective method due to the complexity of the proceedings. Instead, the court exercised its discretion to fix the costs, taking into account the nature of the dispute, the conduct of the parties, and the outcome of the proceedings.

After considering the relevant factors, Carter J fixed the costs at $75,000. The court ordered that the husband was to pay the respondent’s costs in that amount. All other extant applications were dismissed. The court's decision was grounded in the specific circumstances of the case and the need for a fair and reasonable resolution of the costs dispute.

Orders

Orders of the court

MLC 12589 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CORNISH

Applicant

AND:

MS PEARCE AS PERSONAL LEGAL REPRESENTATIVE OF MS CORNISH

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

5 JULY 2024

THE COURT ORDERS THAT:

1. The husband pay the respondent’s costs fixed in the sum of $75,000.

2. All extant applications are otherwise dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

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Citations

Cornish & Cornish (No 4) [2024] FedCFamC1F 451

Cases Citing This Decision

No citing cases yet.

Cases Cited

Raymond & Raymond (No 2) [2024] FedCFamC1A 92
Citation 1 (Para 15)

…As observed by Austin J in Raymond & Raymond (No 2) [2024] FedCFamC1A 92 at [11] – [12]: 11.The Act does not specify that offers must be better than the result achieved before they become relevant as a consideration (s 117(2A)(f)). In Pennisi & Pennisi (1997) FLC 92-774, the Full Court said (at 84,547): … The plain wor…
Vang & Chung [2024] FedCFamC1A 25
Citation 2 (Para 26)

…onvenience involved in taxation; Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51] approved by the Full Court in Vang & Chung [2024] FedCFamC1A 25.…
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Citation 3 (Para 28)

…I note the observations of the Full Court in the matter of Sfakianakis and Sfakianakis [2019] FamCAFC 54 as follows: It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers…
Stoian & Fiening (Costs) [2014] FamCA 944
Citation 4 (Para 32)

…Justice Kent in Stoian v Fiening (Costs) [2014] FamCA 944 noted that these principles were applicable to what was then the operative rules with regard to the fixing of costs. These observations were referred to with approval in the very recent Full Court decision of Vang & Chung .…
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Citation 5 (Para 26)

…costs. This enables the parties to avoid the expense, delay and inconvenience involved in taxation; Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51] approved by the Full Court in Vang & Chung [2024] FedCFamC1A 25.…
Cross v Beaumont [2007] FamCA 123
Citation 6 (Para 24)

…makes it clear that impecuniosity is not a bar to the making of a costs order if the conduct of a party otherwise warrants that a cost order be made: Cross v Beaumont (2008) 39 Fam LR 389 at [60].…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 7 (Para 31)

…As observed by Einstein J in the case of Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23, the principles which inform the exercise of the Court’s discretion to fix costs pursuant to the Civil Procedure Act 2005 (NSW) are as follows: i.the purpose of th…
Sony Entertainment (Australia) Ltd v Smith [2004] FCA 1315
Citation 8 (Para 31)

…iles JA at [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788]; iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs…
Harrison v Schipp [2002] NSWCA 213
Citation 9 (Para 31)

…rness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005…
Yunghanns v Yunghanns [2000] FamCA 681
Citation 10 (Para 23)

…The categories of circumstances which enliven the discretion to award indemnity costs are not closed: see e.g. Yunghanns v Yunghanns (2000) FLC 93-029. However, the case law makes it clear that making an order for indemnity costs represents a very significant departure from the usual standard and should only be made where ther…
Hadid v Lenfest Communications Inc [2000] FCA 628
Citation 11 (Para 31)

…an only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124; [in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that … is what th…
Easterday, Clark Ervin v Australian Securities Commission [1996] FCA 793
Citation 12 (Para 31)

…of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross…
Colgate-Palmolive Co v Cussons Pty ltd [1993] FCA 801
Citation 13 (Para 21)

…basis ought not be made lightly and is generally considered a departure from the usual course, see Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225 observed by Sheppard J at 233.…
Beach Petroleum NL v Johnson [1993] FCA 392
Citation 14 (Para 31)

…are as follows: i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing…
[1987] 1 WLR 72 [1987] 1 WLR 72
Citation 15 (Para 31)

…m must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 at 120; vii.in terms of the necessity for the approach taken to be logical, fair and reasonable, Vo…
Munday v Bowman
Citation 16 (Para 22)

…n Colgate-Palmolive Company , Sheppard J provided some examples of circumstances that might justify the awarding of indemnity costs, and Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision these examples: (a) Where it appears that an action has been commenced or continued in circums…

Legislation Cited

Family Law Act 1975 (Cth) 117
2 mentions
Civil Procedure Act 2005 (NSW)
1 mention (from Para 31)

File number:	MLC 12589 of 2019
Judgment of:	CARTER J
Date of judgment:	5 July 2024
Catchwords:	FAMILY LAW – COSTS – Application and cross application for costs on an indemnity basis – where indemnity costs are not appropriate – whether costs should be taxed – whether the court should fix costs – Costs order made against the husband in an amount fixed.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 46 FCR 225 Cross v Beaumont (2008) 39 Fam LR 389 Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Kohan & Kohan (1993) FLC 92-340 Munday v Bowman (1997) FLC 92-784 Raymond & Raymond (No 2) [2024] FedCFamC1A 92 Stoian v Fiening (Costs) [2014] FamCA 944 Vang & Chung [2024] FedCFamC1A 25 Yunghanns v Yunghanns (2000) FLC 93-029
Division:	Division 1 First Instance
Number of paragraphs:	75
Date of last submission/s:	3 July 2024
Date of hearing:	18 March 2024
Place:	Melbourne
Solicitor for the Applicant:	Marsdens Law Group
Solicitor for the Respondent:	Taussig Cherie Fildes

MLC 12589 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CORNISH Applicant
AND:	MS PEARCE AS PERSONAL LEGAL REPRESENTATIVE OF MS CORNISH Respondent

ORDER MADE BY:	CARTER J
DATE OF ORDER:	5 JULY 2024