Decker & Decker (No 2) - [2022] FedCFamC1F 767

Federal Circuit and Family Court of Australia
(DIVISION 1)
Decker & Decker (No 2) [2022] FedCFamC1F 767

File number(s): SYC 6644 of 2021

Judgment of: WILSON J

Date of judgment: 10 October 2022

Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – COSTS – indemnity costs sought – no exceptional circumstances found – costs order made on a party/party basis – no costs orders made in relation to the costs application

Legislation: Family Law Act 1975 (Cth) ss 79A 117(1) and 117(2A)(e)

Cases cited:
Decker & Decker [2022] FedCFamC1F 563

Fitzgerald v Fish (2005) 33 Fam LR 123

Garston & Yeo [2022] FedCFamC1F 235

Hatcher v Cohn (2004) 139 FCR 425

In the Marriage of Kohan (1992) 16 Fam LR 245

Mansfield & Mansfield [2019] FamCAFC 186

Medlon v Medlon (No 6) (2015) 54 Fam LR 1

Stasiuk & Guild [2021] FamCAFC 62

Warin & Warin (No 6) [2022] FedCFamC1F 457

Zheng & Cheung [2022] FedCFamC1F 249

Division: Division 1 First Instance

Number of paragraphs: 18

Date of last submission/s: 22 September 2022

Date of hearing: Decided on the papers

Place: Melbourne

Counsel for the Applicant: Written submissions on behalf of the wife

Solicitor for the Applicant: Barkus Doolan Winning

Counsel for the Respondent: Written submissions on behalf of the husband

Solicitor for the Respondent: Uther Webster & Evans
ORDERS

SYC 6644 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DECKER

Applicant

AND:
MS DECKER

Respondent

order made by:

WILSON J

DATE OF ORDER:

10 October 2022

THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act, the husband must pay the wife’s costs of and incidental to the husband’s unsuccessful application to summarily dismiss the wife’s s 79A application the subject of my reasons in Decker & Decker [2022] FedCFamC1F 563 on a party/party basis.
2.Forthwith the registrar is to assess party/party costs referred to in paragraph 1 herein.
3.The further conduct of this proceeding is referred to the Honourable Justice Harper.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Introduction

Subsequent to the handing down of judgment on 11 August 2022, the wife applied by application in a case dated 25 August 2022 for orders requiring…

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 Decker & Decker (No 2)

Details

AGLC: Decker & Decker (No 2) [2022] FedCFamC1F 767
Case: [2022] FedCFamC1F 767
Decision Date

CaseChat Overview and Summary

The case Decker & Decker (No 2) involved a dispute between the husband and wife regarding the basis on which the wife's costs should be ordered. The matter was heard in the Family Court of Australia. The wife sought an order that her costs be paid on an indemnity basis, while the husband opposed this application. The wife's costs had accumulated to a substantial amount, including fees for two King's Counsels, and she argued that the exceptional nature of the case warranted an indemnity costs order.

The legal issues before the court were whether the wife's costs should be ordered on a party/party basis or on an indemnity basis, and if the latter, whether the circumstances of the case were exceptional enough to warrant such an order. The court had to consider the relevant legal principles and authorities on the imposition of indemnity costs in family law matters.

In reaching its decision, the court noted that indemnity costs orders were to be made in exceptional circumstances and that the wife's case did not meet the threshold for such an order. The court found that the wife's costs, while significant, did not arise from exceptional circumstances as defined by the relevant authorities. The court emphasised that indemnity costs orders were reserved for cases with unique features that would justify departing from the ordinary course of awarding costs on a party/party basis. In this case, the court concluded that the wife's costs, while high, did not warrant an indemnity costs order.

The court ordered that the wife's costs be assessed on a party/party basis and that a registrar would be responsible for assessing those costs. The costs of this application were to be borne by the wife.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that appear below, in my view costs should be ordered on a party/party basis, not on an indemnity basis. A registrar must assess those costs. Costs of this costs application are to be his and her own costs. The wife’s evidence on this costs application So far as her affidavit sworn 25 August 2022 related to costs, the wife deposed to events prior to and subsequent to the judgment delivered 11 August 2022. The more important matters were as follows – (a)on 27 July 2021 the wife received a costs agreement from her solicitors;(b)on 7 August 2019 the wife received a costs disclosure and agreement from her King’s Counsel;(c)the total combined costs of the wife’s solicitors and one of her counsel is $68,267; and(d)the wife has paid a further $13,200 in relation to the fees of another barrister retained on the wife’s behalf. Self-evidently, the sum of $68,267 is the wife’s solicitor-own-client costs. Those are not assessed costs or taxed costs nor are they party/party costs. The wife’s submissions The wife’s written submissions prepared by her solicitor recorded in paragraph 7 that the husband agreed to pay the wife’s costs in his response filed 8 September 2022 and that the only contentious issue was the basis of those costs. The wife sought an order for her costs to be paid on an indemnity basis. She contended that the husband had been wholly unsuccessful on his s 79A dismissal application for the purposes of s 117(2A)(e). The learning in the family law area in relation to the imposition of indemnity costs provides that such an order is to be made in exceptional circumstances.[1] So far as exceptional circumstances were concerned, the wife’s solicitors wrote the following terms between paragraphs 17 to 20 of those submissions – 17.The case has elements that itself make it exceptional and warranted the experience of Kings Counsel, making it fall outside of a case where scale would accommodate a party's costs incurred or come close. It is noted that both parties engaged Senior Counsel for all Hearings related to the Husband’s Application in a Proceeding, including Directions Hearings save for the Direction Hearing on 13 April 2022 (in which both parties solicitors appeared).18.Further, it is noted that whilst the Wife engaged two King Counsels, she not (sic) seeking the payment of the costs she incurred to obtain advice from [Ms Q] in relation to the Husband’s Application in a Proceeding.19.The Wife’s incurred costs pursuant to the terms of the Costs Agreement she entered into with her solicitors Barkus Doolan Winning and those costs are outside that provided by scale and greater in quantum.20.Consistent with the authorities referred to in Munday & Bowman [1997 FLC 92-748] all of the above features make this case one where the trial Judge should use his and/or her discretion and depart from the ordinary course and award the Wife indemnity costs. [1] Stasiuk & Guild [2021] FamCAFC 62; Medlon v Medlon (No 6) (2015) 54 Fam LR 1; In the Marriage of Kohan (1992) 16 Fam LR 245; Mansfield & Mansfield [2019] FamCAFC 186; Zheng & Cheung[2022] FedCFamC1F 249 and Garston & Yeo[2022] FedCFamC1F 235.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 6644 of 2021
Judgment of:	WILSON J
Date of judgment:	10 October 2022
Catchwords:	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – COSTS – indemnity costs sought – no exceptional circumstances found – costs order made on a party/party basis – no costs orders made in relation to the costs application
Legislation:	Family Law Act 1975 (Cth) ss 79A 117(1) and 117(2A)(e)
Cases cited:	Decker & Decker [2022] FedCFamC1F 563 Fitzgerald v Fish (2005) 33 Fam LR 123 Garston & Yeo [2022] FedCFamC1F 235 Hatcher v Cohn (2004) 139 FCR 425 In the Marriage of Kohan (1992) 16 Fam LR 245 Mansfield & Mansfield [2019] FamCAFC 186 Medlon v Medlon (No 6) (2015) 54 Fam LR 1 Stasiuk & Guild [2021] FamCAFC 62 Warin & Warin (No 6) [2022] FedCFamC1F 457 Zheng & Cheung [2022] FedCFamC1F 249
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of last submission/s:	22 September 2022
Date of hearing:	Decided on the papers
Place:	Melbourne
Counsel for the Applicant:	Written submissions on behalf of the wife
Solicitor for the Applicant:	Barkus Doolan Winning
Counsel for the Respondent:	Written submissions on behalf of the husband
Solicitor for the Respondent:	Uther Webster & Evans

SYC 6644 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DECKER Applicant
AND:	MS DECKER Respondent

order made by:	WILSON J
DATE OF ORDER:	10 October 2022