FAMILY LAW – COSTS – Property proceedings – Where Intervener wholly unsuccessful – Where husband wholly unsuccessful in his support of Intervener's claim – Relevance of husband's and Intervener's conduct as litigants – Where findings had been made that the Intervener's intervention in the proceedings was unnecessary and done for the sole purpose of making the proceedings as complex and expensive as possible for the wife – Where husband's conduct in pressing the Intervener's claim was similar – Where husband made an offer to settle – Where husband's offer was genuine, timely and reasonable – Where offer was open for an unusually and unduly short period of time – Where wife unable to scrutinise offer and evaluate it effectively – Where wife sought costs on an indemnity basis – Discussion of principles relating to award of costs on an indemnity basis – Where Intervener and the husband ordered to pay two thirds of the wife's costs on an indemnity basis

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Castiglione QC
Respondent: Mr M Nicholls QC
Intervener: Mr H Moser

Solicitors:

Applicant: Elizabeth Wiese & Associates
Respondent: Lewis Blyth & Hooper
Intervener: Oldfield Legal

Case(s) referred to in judgment(s):

Bele & Vaughan (Costs) [2012] FamCAFC 198
Browne & Green (2002) FLC 93-115
Colgate-Palmolive (1993) 46 FCR 225
Dekker & Dekker [2014] FCWA 61
Eades & Wrensted [2014] FCWA 64
G & G [2004] FamCA 1179
Hawkins & Roe (2012) 47 Fam LR 526
J v J [2014] EWHC 3654 (Fam)
Kohan and Kohan (1993) FLC 92-340
Kowalski & Kowalski (1994) FLC 92-501
Lenova & Lenova (Costs) [2011] FamCAFC 141
Maker & Jets (No 3) [2012] FMCAfam 1104
Murray & Murray (1990) FLC 92-173
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77
Omacini & Omacini (2005) FLC 93-218
Pennisi & Pennisi (1997) FLC 92-774
Prantage & Prantage [2013] FamCAFC 105
Redmond & Redmond (Costs) [2014] FamCAFC 55
Steel & Steel (1992) FLC 92-306
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Yunghanns v Yunghanns (2000) FLC 93-029

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Introduction

1This is an application for costs made by [Ms Dekker] ("the wife") arising out of proceedings in which she was involved with her former husband, [Mr Dekker] ("the husband") and step-son, [Pim Dekker] ("[Pim]").
2On 15 September 2014, I published my Reasons for Judgment: see Dekker & Dekker [2014] FCWA 61 ("the Judgment").
3Final orders were made – pursuant to the Judgment – on 18 September 2014 ("the final orders"). The final orders were in a form to which the parties agreed, but…

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 DEKKER and DEKKER

Details

AGLC: DEKKER and DEKKER [2015] FCWA 56
Case: [2015] FCWA 56
Decision Date: 17 JULY 2015

CaseChat Overview and Summary

In the Family Court, the wife, represented by Ms Dekker, filed for divorce and sought property settlement and spousal maintenance against the husband, represented by Mr Dekker. The wife's mother, the Intervener, also sought spousal maintenance from the husband. The husband and the Intervener were wholly unsuccessful in their claims. The wife sought an order for costs on an indemnity basis against the husband and the Intervener. The primary legal issue was whether the husband and the Intervener should be ordered to pay the wife's costs on an indemnity basis. The court had to consider the unsuccessful nature of the claims, the conduct of the parties as litigants, the timing and reasonableness of the husband's offer to settle, and whether the wife was able to scrutinise and evaluate the offer.

The court found that the Intervener's intervention was unnecessary and done solely to make the proceedings complex and expensive for the wife. The husband's conduct in pressing the Intervener's claim was similar. The husband's offer to settle was genuine, timely, and reasonable, but it was open for an unusually short period of time, which prevented the wife from scrutinising and evaluating it effectively. The court considered the principles relating to the award of costs on an indemnity basis, which included the unsuccessful nature of the claims, the conduct of the parties, and the timing and reasonableness of the offer to settle. The court found that the husband and the Intervener should be ordered to pay two thirds of the wife's costs on an indemnity basis, taking into account the factors mentioned above.

The court's reasoning and outcome were based on the findings that the husband and the Intervener were wholly unsuccessful in their claims, their conduct as litigants was inappropriate, and the husband's offer to settle was genuine, timely, and reasonable, but open for an unduly short period of time. The court ordered the husband and the Intervener to pay two thirds of the wife's costs on an indemnity basis, reflecting the factors considered in the award of costs. The wife's ability to scrutinise and evaluate the husband's offer to settle was also taken into account in the court's decision. The final orders were that the husband and the Intervener were to pay two thirds of the wife's costs on an indemnity basis.

Orders