DEKKER and DEKKER

Case [2015] FCWA 56


JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DEKKER and DEKKER [2015] FCWA 56

CORAM: WALTERS J

HEARD: 17 MARCH 2015

DELIVERED : 17 JULY 2015

FILE NO/S: PTW 1698 of 2007

BETWEEN: MS DEKKER

Applicant

AND

MR DEKKER
Respondent

AND

PIM DEKKER
Intervener

Catchwords:

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…

Continue reading DEKKER and DEKKER

Sign in free to access the full text

Details
AGLC
DEKKER and DEKKER [2015] FCWA 56
Case
[2015] FCWA 56
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.