Davino & Morrow

Case [2023] FedCFamC1F 358


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Davino & Morrow [2023] FedCFamC1F 358

File number(s): SYC 1922 of 2022
Judgment of: ALDRIDGE J
Date of judgment: 11 May 2023
Catchwords: FAMILY LAW – COSTS – Where the parenting proceedings were resolved by consent – Where the property proceedings were dismissed by consent – Where the third and fourth respondents seek a costs order against the applicant and his solicitors – Where those respondents are receivers – Costs sought on a limited indemnity basis – Consideration of s 117 of the Family Law Act 1975 (Cth) – Lack of reasonable basis for asserting jurisdiction – No meaningful criticism of the respondents’ costs – Applicant to pay the costs of the respondents in a fixed sum – Order made for further written submissions to be filed.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.15, 12.17

Cases cited:

Cantrell & North and Anor (2020) FLC 93-976; [2020] FamCAFC 175

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Fisher v Fisher (1986) 161 CLR 438; [1986] HCA 61

Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442; [1924] HCA 36

Lenova & Lenova (Costs) [2011] FamCAFC 141

Milliford & Milliford [2019] FamCA 128

Division: Division 1 First Instance
Number of paragraphs: 47
Date of last submissions: 5 April 2023
Date of hearing: Heard by way of written submissions
Place: In Chambers
Counsel for the Applicant: Mr Neil SC
Solicitor for the Applicant: Swan Lawyers
The First and Second Respondents: Did not participate
Solicitor for the Third and Fourth Respondents: Swaab Attorneys

ORDERS

SYC 1922 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DAVINO

Applicant

AND:

MS MORROW

First Respondent

MR MORROW

Second Respondent

MR HANCOCK (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

11 MAY 2023

THE COURT ORDERS THAT:

1.The applicant is to pay the costs of the third and fourth respondents fixed in the sum of $45,000 within 28 days.

2.The applicant’s solicitors are to file and serve written submissions and any supporting evidence as to a costs order against them within 21 days of the date of these orders.

3.The third and fourth respondents are to file and serve written submissions in reply within a further seven days.

4.Pending further order, none of the parties is to disseminate the reasons for judgment other than to their lawyers or to the Federal Court of Australia.

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)…

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AGLC
Davino & Morrow [2023] FedCFamC1F 358
Case
[2023] FedCFamC1F 358
Decision Date

CaseChat Overview and Summary

In the case of Davino v Morrow, the applicant, Mr. Davino, and the first and second respondents, Ms. Morrow and Mr. Morrow, had resolved their parenting and property proceedings by consent. The third and fourth respondents, Mr. Hancock and another, who are receivers, sought a costs order against Mr. Davino and his solicitors. The third and fourth respondents sought costs on a limited indemnity basis under section 117 of the Family Law Act 1975 (Cth). The court was required to consider whether the applicant's action had a reasonable basis and whether the applicant's solicitors had acted reasonably in pursuing the proceedings.
The court held that the applicant's action lacked a reasonable basis as there was no meaningful criticism of the third and fourth respondents' costs. The court also held that the applicant's solicitors had not acted reasonably in pursuing the proceedings. The court ordered that the applicant pay the costs of the third and fourth respondents in a fixed sum of $45,000 within 28 days. The court also ordered that the applicant's solicitors file and serve written submissions and any supporting evidence as to a costs order against them within 21 days of the date of the orders. The third and fourth respondents were to file and serve written submissions in reply within a further seven days.

Pending further order, none of the parties were to disseminate the reasons for judgment other than to their lawyers or to the Federal Court of Australia. The form of the order was subject to the entry in the Court’s records, and the copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

SYC 1922 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DAVINO

Applicant

AND:

MS MORROW

First Respondent

MR MORROW

Second Respondent

MR HANCOCK (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

11 MAY 2023

THE COURT ORDERS THAT:

1. The applicant is to pay the costs of the third and fourth respondents fixed in the sum of $45,000 within 28 days.

2. The applicant’s solicitors are to file and serve written submissions and any supporting evidence as to a costs order against them within 21 days of the date of these orders.

3. The third and fourth respondents are to file and serve written submissions in reply within a further seven days.

4. Pending further order, none of the parties is to disseminate the reasons for judgment other than to their lawyers or to the Federal Court of Australia.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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