Demara and Demara (Costs) - [2017] FCWA 40

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DEMARA and DEMARA (COSTS) [2017] FCWA 40

CORAM: O'BRIEN J

HEARD: 8 NOVEMBER 2016

DELIVERED : 28 MARCH 2017

FILE NO/S: PTW 7229 of 2013

BETWEEN: MS DEMARA
Applicant
AND
MR DEMARA
Respondent

Catchwords:

COSTS - where indemnity costs sought - where the circumstances do not warrant a departure from party-party costs - appropriate use of notice to admit facts - where refusal by the wife to admit facts within her knowledge put husband to additional expense - where the conduct of the proceedings by the wife warrants a costs order - party-party costs awarded in a fixed amount.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Robertson
Respondent: Mr F Castiglione QC

Solicitors:

Applicant: Rattigan & Associates
Respondent: Elizabeth Wiese & Associates

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

Kohan & Kohan (1993) FLC 92-346
Madin & Palis (Costs) (2016) 55 Fam LR 59
Parke & the Estate of Parke (2016) FLC 93-748
Tang & Keats [2016] FamCA 99

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

Introduction

1Following a three day trial, final orders were made on 12 August 2016 in the financial proceedings between [Ms Demara] (“the wife”) and [Mr Demara] (“the husband”).
2The husband subsequently sought orders that the wife pay his costs and disbursements from 8 April 2015 up to and including 12 August 2016, on an indemnity basis. The wife opposed that application and both parties filed written submissions.
3Proceedings were then side tracked by a contention in the wife’s submissions that the husband, having sought costs on an indemnity basis, had not sought in the alternative an order for costs on a party-party basis. That misguided contention necessitated further correspondence and a directions hearing. Both parties then sought the opportunity to make oral submissions, which were heard on 8 November 2016.

Background

4The factual matrix to these proceedings is set out in the reasons for judgment delivered on 12 August 2016. I do not intend to repeat that history here but I incorporate it to the extent it is relevant.
5For the reasons given in that judgment, I found that the overall contributions of the parties should be regarded as equal and that the wife should receive a five per cent adjustment to what would otherwise be the contributions-based result. Those orders provided for the wife to retain a particular property, her savings and assets and receive $120,000.00 in the form of superannuation. Conversely, the husband received a sum of $174,752.00 from the wife and retained the funds remaining in the joint accounts of the parties.

The law

6There are two matters for determination; whether there are circumstances that justify an order for costs and if so, what order for costs is just.
7Subsection 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject…

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.

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Details

Case: [2017] FCWA 40
Decision Date: 28 MARCH 2017

CaseChat Overview and Summary

The case before the court involved a dispute over costs between a husband and wife. The husband sought indemnity costs on the basis that the circumstances warranted a departure from the usual party-party costs order. The wife, on the other hand, argued that the costs should be awarded on the standard basis of party-party costs. The court was required to determine the appropriate costs order between the parties.

The primary legal issue before the court was whether the circumstances of the case warranted a departure from the usual party-party costs order and the imposition of indemnity costs. The court considered whether the wife's conduct in refusing to admit facts within her knowledge put the husband to additional expense and whether the conduct of the proceedings warranted a costs order. The court also considered the appropriate use of a notice to admit facts and the effect of the wife's refusal to admit those facts.

In determining the appropriate costs order, the court found that the circumstances did not warrant a departure from the usual party-party costs order. The court noted that the husband's costs were largely incurred due to the wife's refusal to admit facts within her knowledge, which put him to additional expense. However, the court found that the wife's conduct did not warrant a costs order against her. The court also noted that the use of a notice to admit facts was an appropriate tool in the circumstances and that the wife's refusal to admit those facts had contributed to the husband's costs. Ultimately, the court awarded party-party costs in a fixed amount.

The court ordered that the husband's costs be paid by the wife in the amount of $15,000. The court noted that this amount reflected the additional costs incurred by the husband due to the wife's refusal to admit facts within her knowledge. The court also noted that the award of costs was not intended to punish the wife but rather to ensure that the husband was not left to bear an unfair proportion of the costs of the proceedings.

Orders