Darue and Darue - [2008] FamCA 541

FAMILY COURT OF AUSTRALIA

DARUE & DARUE

[2008] FamCA 541

FAMILY LAW – COSTS – Costs between parties – costs thrown away – indemnity costs

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340

APPLICANT:

Ms Darue

RESPONDENT:

Mr Darue

FILE NUMBER:

SYF

4321

2006

DATE DELIVERED:

14 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

3 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, Senior Counsel with Mr Livingstone, Counsel

COUNSEL FOR THE RESPONDENT:

Ms Rees, Counsel

Orders

The husband pay the wife’s costs and disbursements (as agreed or assessed in accordance with the Rules of Court on a party and party basis) thrown away by reason of the matter not proceeding to a final hearing on the day fixed for its commencement.
Pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.
The costs be paid within 28 days of the final hearing of the proceedings for alteration of property interests of the parties.

IT IS NOTED that publication of this judgment under the pseudonym Darue and Darue is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4321 of 2006

MS DARUE

Applicant

And

MR DARUE

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter which was listed for hearing before me today the wife’s Counsel Mr Richardson applied for an adjournment of the hearing of the matter in order for a single expert to be appointed to value certain property in dispute between the parties, which was asserted to have been the subject of a former agreed value, and from which agreement (if it existed) the husband sought to resile.
The opportunity was afforded to the husband and wife to reach agreement on the value of those properties but that was not possible and the husband accepted the adjournment.
In those circumstances, I made an order for the appointment of a single expert and adjourned the matter by consent to a date to be fixed.
I am asked to make an order for costs in terms of an oral application made to the Court on the day in the following terms:
“The husband pay the wife’s costs and disbursements thrown away by the adjournment of this hearing on an indemnity basis in such sum as may be agreed or in the absence of agreement as assessed.”

Section 117 considerations

The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Act. In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117 (2A) of the Act. Those matters are set out in the following sub lettered sub sections of that section namely:

(a) the financial circumstances of each of the parties to the proceedings

The financial circumstances of the…

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 Darue and Darue

Details

AGLC: Darue and Darue [2008] FamCA 541
Case: [2008] FamCA 541
Decision Date: 14 July 2008

CaseChat Overview and Summary

In the matter of *Darue and Darue*, Justice Fowler of the Family Court of Australia considered an application concerning costs. The dispute arose from proceedings for the alteration of property interests between a husband and wife.

The primary legal issue before the Court was the appropriate order for costs, specifically in relation to the costs thrown away by reason of the matter not proceeding to a final hearing on the day fixed for its commencement. The Court was also required to determine whether the attendance of Senior Counsel was reasonably required for the matter.

Justice Fowler reasoned that the husband should bear the costs thrown away due to the adjournment, as the matter failed to proceed on the scheduled hearing date. The Court further found that the attendance of Senior Counsel was reasonably required for the proceedings, pursuant to rule 19.50 of the *Family Law Rules 2004*. The Court ordered that the husband pay the wife’s costs and disbursements on a party and party basis, to be paid within 28 days of the final hearing of the property proceedings.

Orders

Orders of the court

The husband pay the wife’s costs and disbursements (as agreed or assessed in accordance with the Rules of Court on a party and party basis) thrown away by reason of the matter not proceeding to a final hearing on the day fixed for its commencement.

Pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.

The costs be paid within 28 days of the final hearing of the proceedings for alteration of property interests of the parties.

Background

Background to the litigation

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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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