Denning and Denning (No 4) - [2011] FamCA 283

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (No 4)

[2011] FamCA 283

FAMILY LAW – COSTS - Circumstances justifying order - Where circumstances not sufficient to attract the award of indemnity costs - Where costs in excess of party and party costs appropriate – Where costs calculated on a solicitor and client basis per r 19.18

Family Law Act 1975 (Cth), ss 117(2A), 117AB
Family Law Rules 2004 (Cth), r 19.18

Colgate-Palmolive Co v Cussons Pty Ltd (1993)118 ALR 248; [1993] 46 FCR 225, applied
D & D (Costs) (No. 2) (2010) FLC 93-435, cited
Davida & Davida (Costs) [2011] FamCAFC 61, cited
Fennessy v Gregorian (2009) FLC 93-399; [2009] FamCAFC 44, applied
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202, applied
Limousin v Limousin (2007) 38 Fam LR 478; [2007] FamCA 1178, cited
Ragata Developments Pty Limited v Westpac Banking Corporation, Federal Court of Australia, 5 March 1993, unreported, cited
Stephens & Stephens & Anor(Enforcement) (Costs) [2010] FamCAFC 172, applied
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681, cited

APPLICANT:

Mr Denning

RESPONDENT:

Ms Denning

INTERVENOR:

B Pty Ltd

FILE NUMBER:

MLC

463

2008

DATE DELIVERED:

29 April 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

18 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr McConchie

SOLICITOR FOR THE RESPONDENT:

F Butera & Co

COUNSEL FOR THE INTERVENOR:

Mr Crozier-Durham RFD

SOLICITOR FOR THE INTERVENOR:

Mason Sier Turnbull

ORDERS

IT IS ORDERED:

THAT the evidence of the wife’s solicitor Mr Ferdinando Butera as to service of the wife’s Application in a Case, filed 1 April 2011, and supporting documents upon the husband be transcribed and placed upon the Court file.
THAT the husband pay to the solicitors for the wife within sixty (60) days costs assessed on a solicitor and client basis in the sum of $75,000 and in default of such payment interest then be paid on all monies outstanding at the rate prescribed in Rule 17.03 in the Family Law Rules 2004 (Cth) and be calculated quarterly in arrears.
THAT there be no costs order of, or incidental to, the hearing on Monday 18 April 2011.
THAT otherwise all extant applications including the oral application of the intervenor for costs of the hearing on Monday 18 April 2011 be dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel for each of wife and intervenor.

IT IS NOTED that publication of this judgment under the pseudonym Denning & Denning is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

Mr Denning

Applicant

And

Ms Denning

Respondent

And

B Pty Ltd

Intervenor

REASONS FOR JUDGMENT

On 3 February…

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 Denning and Denning (No 4)

Details

AGLC: Denning and Denning (No 4) [2011] FamCA 283
Case: [2011] FamCA 283
Decision Date

CaseChat Overview and Summary

In *Denning & Denning (No 4)*, the Family Court of Australia considered an application for costs made by the Respondent wife against the Applicant husband, following final orders pronounced on 8 March 2011. An intervenor, B Pty Ltd, also sought costs. The proceedings concerned property and financial matters, and the wife sought costs on an indemnity basis, supported by an affidavit detailing her legal costs and disbursements totalling $93,526.10. The husband did not appear at the costs hearing, having filed no response to the wife's application.

The primary legal issues before the Court were whether the circumstances justified an award of costs against the husband, and if so, on what basis – specifically, whether indemnity costs were appropriate or if costs should be assessed on a solicitor and client basis. The Court also considered the intervenor's application for costs. The wife's claim for costs was founded on sections 117AB and 117 of the *Family Law Act 1975* (Cth), with particular emphasis on the husband's conduct, including alleged false and misleading statements and the creation of false documents.

The Court reasoned that while the husband's conduct throughout the proceedings, particularly his truthfulness and willingness to provide accurate information and documents, justified an award of costs in favour of the wife, the circumstances did not meet the threshold for indemnity costs. The Court referred to established principles regarding indemnity costs, noting that such an award requires exceptional or very clear and significant circumstances, which were not present here. However, the Court found that costs calculated on a solicitor and client basis were appropriate, as permitted by Rule 19.18 of the *Family Law Rules 2004* (Cth), to more fully reimburse the wife for her legal expenses. The Court also dismissed the intervenor's application for costs.

The Court ordered that the husband pay to the wife's solicitors, within sixty days, costs assessed on a solicitor and client basis in the sum of $75,000. Interest was to be paid on any outstanding amount at the prescribed rate. The Court also ordered that there be no costs order in relation to the hearing on 18 April 2011, and that all other extant applications, including the intervenor's oral application for costs of that hearing, be dismissed. The Court noted that the attendance of counsel for both the wife and the intervenor was reasonably required.

Orders