Cotter & Eggers-Cotter (No 2)

[2015] FamCA 1008

FAMILY COURT OF AUSTRALIA

COTTER & EGGERS-COTTER (NO 2) [2015] FamCA 1008

FAMILY LAW – COSTS – Where offer of settlement made – discretion still applicable – the question is whether it was unreasonable to reject the offer – limited costs orders – indemnity costs application rejected.

Family Law Act 1975 (Cth)

Calderbank v Calderbank (1975) 2 AllER 333
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor [2005] FamCA 158; (2005) Fam LR 123
Kelly and Kelly (No 2) (1981) FLC 91-108
Lenova and Lenova (Costs) [2011] FamCAFC 141
Munday and Bowman (1997) FLC 92-784
Prantage and Prantage [2013] FamCAFC 105
Richfield Investments Pty Ltd v Oversea-Chinese Banking Corp [2004] VSC 351

APPLICANT: Mr Cotter

RESPONDENT: Ms Eggers-Cotter

FILE NUMBER: MLC 7005 of 2014

DATE DELIVERED: 18 November 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

THE APPLICANT:	Rohan Hoult of Counsel C/- Farrar Gesini Dunn
THE RESPONDENT:	Robin M Smith of Counsel C/- CE Family Lawyers

Orders

1. That the husband pay 25 per cent of the wife’s costs fixed on a party and party basis for the period from and including 11 September 2015 until the 1 October 2015 by agreement and failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cotter & Eggers-Cotter (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7005  of 2014

Mr Cotter

Applicant

And

Ms Eggers-Cotter

Respondent

REASONS FOR COSTS JUDGMENT

1. Ms Eggers-Cotter seeks an order that Mr Cotter to pay her costs arising out of orders I made on 21 October 2015.  The costs claimed are $43,277.16 which are said to be calculated on an indemnity basis. 

2. The husband’s response is that there is no basis for an order for costs and particularly for indemnity costs.  His counsel submitted that there was nothing remarkable about the way the litigation was conducted.

3. This application raises two questions. They are:

   (a)Should an order for costs be made having regard to:

   ·   The disparity of the financial circumstances of the parties; and

   ·   An offer made approximately two weeks prior to the commencement of the final hearing; and

   (b)If an order is made, should it be on an indemnity basis?

4. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to depart from that principle and if there are, the Court must before making any order, take into account the matters set out in s 117(2A) of the Act.

5. In this case, the wife asserts that there are reasons to depart from the principle relying upon s 117(2A)(a) and (f).

6. These were property proceedings heard over two days.  The Court found that the assets to…