Draper & Corwin (No 2)

Case [2022] FedCFamC1F 923

Federal Circuit and Family Court of Australia

(DIVISION 1)

Draper & Corwin (No 2) [2022] FedCFamC1F 923  

File number(s): MLC 4817 of 2020
Judgment of: HARTNETT J
Date of judgment: 29 November 2022
Catchwords: FAMILY LAW – COSTS – Where the wife seeks indemnity costs of and incidental to the hearings on 21 April 2022 and 15 June 2022 – Where the husband sought the wife’s application be dismissed – Costs ordered in favour of the wife.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 3, r 12.13

Civil Procedure Act 2010 (Vic)

Supreme Court Act 1986 (Vic)

Cases cited:

Allen & Cortez (No 2) [2016] FamCA 837

Chen & Tan (No 2) [2012] FamCA 796

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Collins and Collins (1985) FLC 91-603

Kohan & Kohan (1993) FLC 92-340

Munday v Bowman (1997) FLC 92-784

Nada & Nettle (Costs) (2014) FLC 93-612

Penfold v Penfold (1980) 144 CLR 311

Sfankianakis & Sfankianakis [2019] FamCAFC 54

Yeo & Huy (Costs) (2012) 48 Fam LR 519

Yunghanns & Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance
Number of paragraphs: 41
Date of last submission/s: 19 September 2022
Date of hearing: On the papers
Place: Melbourne
Solicitor for the Applicant: Litigant in person
Counsel for the Respondent: Mr Tatarka
Solicitor for the Respondent: KCL Law
Solicitor for the Independent Children's Lawyer: VM Family Lawyers

ORDERS

MLC 4817 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DRAPER

Applicant
AND:

MS CORWIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HARTNETT J

DATE OF ORDER:

29 NOVEMBER 2022

THE COURT ORDERS THAT:

1.By 4.00pm on 28 January 2023, the husband pay the wife’s costs of and incidental to his Application for Enforcement on an indemnity basis.

2.The wife shall, within 7 days of the date of these orders, forward to the husband in writing the amount of costs represented by Order 1 of these orders.

3.The husband shall, within 7 days of receipt of the quantum of costs claimed as required by Order 2 of these orders, respond in writing as to whether he accepts the amount so specified, in which case the husband shall pay the amount in accordance with Order 1 with such payment to be in full and final discharge of the husband’s obligations pursuant to Order 1.

4.In the event that the husband does not accept the amount specified by the wife in accordance with Order 2, or pay the said amount within the time so specified in Order 3, the amount of the costs required to be paid in accordance with Order 1 shall be as assessed by a Registrar.

5.By 4.00pm on 28 January 2023, the husband pay the wife’s costs of and incidental to the husband’s Amended Application in a Proceeding filed 11 May 2022, being his application for a permanent stay of the wife’s application, on a party and party…

Continue reading Draper & Corwin (No 2)

Sign in free to access the full text

Details
AGLC
Draper & Corwin (No 2) [2022] FedCFamC1F 923
Case
[2022] FedCFamC1F 923
Decision Date

CaseChat Overview and Summary

The case involves a dispute between Draper and Corwin, with Corwin applying for enforcement and Draper opposing. The matter was heard in the Family Court of Australia. The central issue was whether the Court should make an order for indemnity costs against Draper, both in relation to the enforcement application and the forum applications, including stay applications. The Court needed to determine whether the circumstances justified such an order and if so, what form it should take.

The Court considered the general rule that costs are payable on a party-party basis unless there are exceptional circumstances warranting a different order. It noted that indemnity costs are only appropriate in exceptional cases where the party's conduct was egregious, such as knowingly commencing or continuing an action with no chance of success or making false allegations of fraud. The Court also recognised that costs orders could be tailored to the specific circumstances, potentially resulting in a "special costs order."

In this case, the Court found that Draper's conduct warranted an order for indemnity costs. The Court was satisfied that Draper had continued the enforcement application and forum applications without a reasonable prospect of success, demonstrating a disregard for the known facts. Additionally, Draper's refusal to accept a reasonable offer to compromise further supported the need for an indemnity order.

The Court ordered Draper to pay Corwin's indemnity costs for the enforcement application and the forum applications, including stay applications. This decision reflects the Court's exercise of discretion to ensure that costs orders are just and appropriate given the circumstances of the case.

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

I dismissed the husband’s Application for Enforcement and ordered the husband to file the necessary documentation in the B Court of J State, County C, to withdraw his applications therein filed, and was satisfied the wife would assist in that regard if required. Conclusion I am satisfied in all of the circumstances as described above, that the Court is not precluded from making a costs order against the husband, both as to the enforcement application, and to the forum applications (including stay applications), the latter in respect of which s 117 of the Act is not applicable, and that an order for costs is an appropriate exercise of my discretion. The general rule in this Court is that costs are payable on a party-party basis unless the Court decides to exercise its discretion to order costs on other terms, including indemnity costs. The costs sought by the wife are indemnity costs. The Court “should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be an exceptional one”.[4] [4] Kohan & Kohan (1993) FLC 92-340. The circumstances justifying an order for indemnity costs are not closed.[5] The Court in exercising its discretion must be satisfied that the circumstance of the case “warrant the making of an order for the payment of costs other than on a party-party basis”.[6] Circumstances which may warrant such an order were summarised by Holden CJ in Munday v Bowman (1997) FLC 92-784, as identified in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, as follows: •Where an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts;•The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;•Evidence of particular misconduct causing loss of time to the court and to other parties;•The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;•An imprudent refusal of an offer to compromise. [5] Yunghanns & Yunghanns (2000) FLC 93-029. [6] Yunghanns & Yunghanns (2000) FLC 93-029. In the more recent decision of Sfankianakis & Sfankianakis [2019] FamCAFC 54, the Full Court observed at [10] that:…It is however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs as the Court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well known example is assessment on a trustee basis, which is more generous than party and party costs, but fall short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party cost nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.