Daily & Daily (No 6)

Case [2024] FedCFamC1F 889

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daily & Daily (No 6) [2024] FedCFamC1F 889

File number(s): ADC 4606 of 2018
Judgment of: BERMAN J
Date of judgment: 20 December 2024
Catchwords: FAMILY LAW – COSTS – Where the applicant seeks costs on an indemnity basis for $235,000 – Where the applicant concedes that costs should be assessed on a party/party basis and limited to $150,000 held in a joint bank account – Where the respondent also seeks an order for costs – Where the respondent provides no evidence or assistance in relation to the quantum sought – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Consideration of the various offers made – Consideration of the parties financial circumstances – Costs order.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.04

Cases cited:

Bant & Clayton (Costs) [2016] FamCAFC35

Daily & Daily (2020) FamCAFC 304

Daily & Daily (2020) 61 Fam LR 75

Daily & Daily [2024] FedCFamC1A 185

Parke & the Estate of the late A Parke [2016] FLC 93-748

Robinson & Higginbotham (1991) FLC 92-209

Division: Division 1 First Instance
Number of paragraphs: 92
Date of hearing: 4 December 2024
Place: Adelaide
Counsel for the Applicant: Litigant in person
Counsel for the First Respondent: Mr Rowley
Solicitor for the First Respondent: Charlton Rowley Legal
Counsel for the Second Respondent: Ms Doyle
Solicitor for the Second Respondent: Barry Nilsson Lawyers

ORDERS

ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DAILY

Applicant
AND:

MR DAILY

First Respondent

R LAWYERS
Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 DECEMBER 2024

THE COURT ORDERS THAT:

1.Order 4 of orders made 13 March 2024 be discharged.

2.The parties do all thing necessary to withdraw funds payable to the applicant in the sum of $70,000 from the joint Westpac Account ending …95.

3.The respondent is entitled to retain the balance of funds held in the joint Westpac Account without further claim by the applicant.

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

BERMAN J

INTRODUCTION

  1. By Application in a Proceeding filed 21 February…

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AGLC
Daily & Daily (No 6) [2024] FedCFamC1F 889
Case
[2024] FedCFamC1F 889
Decision Date

CaseChat Overview and Summary

The case of Daily & Daily (No 6) involved a dispute over costs between Ms Daily and Mr Daily, with the former seeking costs on an indemnity basis for an amount of $235,000. Ms Daily later conceded that the costs should be assessed on a party/party basis and limited to $150,000 held in a joint bank account. Mr Daily, in turn, also sought an order for costs but provided no evidence or assistance in relation to the quantum sought. The court was required to consider the provisions of section 117(2A) of the Family Law Act 1975 (Cth), the various offers made by the parties, and their financial circumstances in making its determination.

The court found that, in assessing the costs, it was appropriate to take into account the financial circumstances of both parties and the offers made by each. The court noted that the respondent had failed to provide any evidence or assistance in relation to the quantum of costs sought, which was a significant factor in its consideration. The court also considered the offers made by the parties and found that the applicant's offer to limit the costs to $150,000 was reasonable. The court concluded that the applicant was entitled to an order for costs in the amount of $70,000, which represented a party/party assessment of the costs incurred.

The court further ordered that the parties withdraw $70,000 from the joint Westpac Account in favour of the applicant. The respondent was entitled to retain the balance of the funds held in the joint account without further claim by the applicant. The court's decision was based on a careful consideration of the relevant statutory provisions, the offers made by the parties, and their financial circumstances. The outcome was that the applicant was awarded costs in the amount of $70,000, which was a party/party assessment of the costs incurred.

Orders

Orders of the court

ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DAILY

Applicant

AND:

MR DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 DECEMBER 2024

THE COURT ORDERS THAT:

1. Order 4 of orders made 13 March 2024 be discharged.

2. The parties do all thing necessary to withdraw funds payable to the applicant in the sum of $70,000 from the joint Westpac Account ending …95.

3. The respondent is entitled to retain the balance of funds held in the joint Westpac Account without further claim by the applicant.

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

Whilst there was initial participation by the second respondent, they did not seek to be heard in respect of the issue of costs as between the parties.BACKGROUND The parties commenced cohabitation in 1997 and were married in 2005. The parties separated on 15 September 2018 and a divorce order was granted in late 2019. The respondent commenced proceedings by filing an Initiating Application on 5 November 2018 that sought orders solely relating to parenting orders. The applicant filed a Response on 7 December 2018 and introduced property settlement predicated upon the setting aside a Binding Financial Agreement (“BFA”) together with orders for spousal maintenance. Parenting orders were resolved in short compass on 17 May 2019. The applicant filed an Amended Response on 19 November 2019 and a Further Amended Response on 11 December 2019. The first trial occurred between 27 April 2020 and 1 May 2020 resulting in a judgment being delivered on 17 June 2020 (“the first judgment”). In summary, I found that by reason of hardship, the financial agreement entered into between the parties dated 21 July 2005 should be set aside pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) (“the Act”). The respondent appealed my decision on 14 July 2020 and on 9 December 2020, the Full Court found that I had erred in my determination that the applicant had properly established hardship and remitted the matter back to me for hearing. On 31 May 2021, the respondent filed an Amended Initiating Application joining the second respondent and seeking damages against them for breach of contract and/or negligence arising from their engagement with the respondent in the preparation of the BFA. The respondent filed a Further Amended Initiating Application on 13 August 2021 which provided further and better particulars of his claim against the second respondent. The second trial was heard between 14 February 2022 and 18 February 2022 and it involved the applicant, the respondent and the second respondent. Judgment was delivered on 31 March 2023 (“the second judgment”) which dealt with matters of property settlement as between the parties and a modest award of damages in favour of the respondent arising from a finding of negligence by the second respondent. The respondent appealed the second judgment on 26 April 2023 and on 3 August 2023, the Full Court dismissed the appeal and made a costs order against the respondent and in favour of the second respondent. On 27 November 2023, the parties and the second respondent were heard as to the issue of damages. Judgment was delivered on 9 February 2024 finalising property settlement in favour of the applicant and a damages order was made against the second respondent in favour of the respondent. The respondent became self-represented on 8 December 2023. On 17 October 2024, the Full Court dismissed the appeal against the applicant but upheld the appeal as against the second respondent. Orders were made that finalised the s 79 proceedings between the parties and as such, the applicant’s Application for costs filed 21 February 2024 and the Response filed 3 April 2024 was listed for hearing with judgment reserved on 4 December 2024.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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