DISHMAN & DISHMAN (No.3)

Case [2020] FCCA 726


FEDERAL CIRCUIT COURT OF AUSTRALIA

DISHMAN & DISHMAN (No.3) [2020] FCCA 726
Catchwords:
FAMILY LAW – COSTS – Due process – Court’s power to deal with Application for costs – financial circumstances of the parties – conduct – where the husband has been wholly unsuccessful – offers – basis for costs – Order for costs made against husband on a party-party basis.

Legislation:

Family Law Act 1975 (Cth), ss.117, 106A
Federal Circuit Court Rules 2001 (Cth), sch.1

Cases cited:

Allesch & Maunz [2000] HCA 40

Colgate-Palmolive & Cussons (1993) 46 FCR 225
Prantage & Prantage (Costs) [2014] FamCA 850
Black & Kellner [1992] FLC 92-287
Peake & Benedict (Costs)[2014] FCCA 2723
Stanford v Stanford (2012) 247 CLR 108
Penfold v Penfold (1980) 144 CLR 311
Watton & Smart (Costs) [2014] FCCA 2826
Lennon & Lennon (Costs) [2012] FamCA 116
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Davida & Davida (Costs) [2011] FamCAFC 61
Browne & Green [2002] FamCA 791

Applicant: MS DISHMAN
Respondent: MR DISHMAN
File Number: PAC 6114 of 2018
Judgment of: Judge Harman
Hearing date: 5 March 2020
Date of Last Submission: 5 March 2020
Delivered at: Parramatta
Delivered on: 5 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Ford
Solicitors for the Applicant: Matthews Dooley & Gibson
No appearance by the Respondent

ORDERS

  1. The Husband shall pay to the Wife, as a contribution to the Wife’s costs on a party/party basis, a sum of $35,000, such costs to be paid by the Husband to the Wife by 4pm 3 April 2020, failing which:

    a)Interest shall then accrue upon that sum at the rate prescribed from time to time from the Federal Circuit Court Rules; and

    b)The Wife shall then be entitled to commence proceedings for recovery of that sum together with interest and cost in a Court of competent jurisdiction.

  2. Dismiss the Application in a Case filed 12 November 2019.

  3. Dismiss the Application in a Case filed 9 December 2019.

  4. Remove all issues from the list of cases awaiting hearing.

  5. Note: That the Husband has failed, refused or neglected to execute a document or documents necessary to authorise, permit and instruct Mathews Dooley & Gibson Solicitors to release to the Wife (from a controlled monies account maintained by them in trust for the parties jointly) the sum that is presently held by them, which funds are the property of the Wife pursuant to the Orders of this Court made 8 October 2019.

  6. Noted: An approach has previously been made to a Registrar of the Court pursuant to section 106A (Order 12 of the Orders made 8 October 2019) to have the above document or documents signed by a Registrar on behalf of the Husband so as to permit the release of funds to the Wife and the Registrar has declined to execute that document or documents as the Husband had filed an appeal from the Orders 8 October 2019 which had not yet then been determined and, further, had…

Continue reading DISHMAN & DISHMAN (No.3)

Sign in free to access the full text

Details
AGLC
DISHMAN & DISHMAN (No.3) [2020] FCCA 726
Case
[2020] FCCA 726
Decision Date

CaseChat Overview and Summary

In the matter of DISHMAN & DISHMAN (No.3), Judge Harman of the Federal Circuit Court of Australia considered an application for costs. The dispute arose in the context of family law proceedings, where the husband had been unsuccessful in his applications. The wife sought an order for costs against the husband.

The primary legal issue before the court was whether to make an order for costs against the husband, and if so, on what basis and to what extent. This involved considering the financial circumstances of the parties and the conduct of the husband throughout the proceedings, particularly in light of his complete lack of success. The court also had to determine the appropriate quantum of costs and the method of payment.

Judge Harman reasoned that the husband's complete lack of success in his applications, coupled with his conduct in failing or refusing to execute necessary documents for the release of funds to the wife, warranted an order for costs. The court applied principles of due process and its inherent power to deal with costs applications. The court ordered the husband to pay the wife a sum of $35,000 as a contribution to her costs on a party-party basis, with a specified payment deadline. Failure to comply would result in interest accruing and the wife being entitled to commence recovery proceedings. The court also dismissed the husband's applications filed in November and December 2019, removed all issues from the list of cases awaiting hearing, and directed Registrars to sign necessary documents for the release of funds held in trust by the parties' solicitors.

Orders

Orders of the court

1.

The Husband shall pay to the Wife, as a contribution to the Wife’s costs on a party/party basis, a sum of $35,000, such costs to be paid by the Husband to the Wife by 4pm 3 April 2020, failing which:

a) Interest shall then accrue upon that sum at the rate prescribed from time to time from the Federal Circuit Court Rules; and

b) The Wife shall then be entitled to commence proceedings for recovery of that sum together with interest and cost in a Court of competent jurisdiction.

2.

Dismiss the Application in a Case filed 12 November 2019.

3.

Dismiss the Application in a Case filed 9 December 2019.

4.

Remove all issues from the list of cases awaiting hearing.

5.

Note: That the Husband has failed, refused or neglected to execute a document or documents necessary to authorise, permit and instruct Mathews Dooley & Gibson Solicitors to release to the Wife (from a controlled monies account maintained by them in trust for the parties jointly) the sum that is presently held by them, which funds are the property of the Wife pursuant to the Orders of this Court made 8 October 2019.

6.

Noted: An approach has previously been made to a Registrar of the Court pursuant to section 106A (Order 12 of the Orders made 8 October 2019) to have the above document or documents signed by a Registrar on behalf of the Husband so as to permit the release of funds to the Wife and the Registrar has declined to execute that document or documents as the Husband had filed an appeal from the Orders 8 October 2019 which had not yet then been determined and, further, had filed an Application in a Case seeking a stay or Orders (although no stay has ever been granted).

7.

Noted: All appellant controversy before the Full Court has now concluded and by dismissal of any Application made by the Husband.

8.

Direct all Registrars of the Federal Circuit Court to forthwith, upon presentation to them, to sign all deeds and instruments presented to them by the Wife’s legal representatives on behalf of and, in the place of the Husband so as to authorise and permit the release to the Wife of all funds presently held by Mathews Dooley & Gibson Solicitors in trust on behalf of the parties (whether held in their trust account, controlled monies account or otherwise.

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.