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
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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