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 |
| Cases cited: Allesch & Maunz [2000] HCA 40 Colgate-Palmolive & Cussons (1993) 46 FCR 225 |
| 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
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.
Dismiss the Application in a Case filed 12 November 2019.
Dismiss the Application in a Case filed 9 December 2019.
Remove all issues from the list of cases awaiting hearing.
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.
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…
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- AGLC
- DISHMAN & DISHMAN (No.3) [2020] FCCA 726
- Case
- [2020] FCCA 726
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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