ELDEN & JACOBS (No.2) - [2020] FCCA 2870

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELDEN & JACOBS (No.2)

[2020] FCCA 2870

Catchwords:
FAMILY LAW – Costs – whether justifying circumstances to make costs order – costs sought on an indemnity basis – costs order made.

Legislation:

Family Law Act 1975 (Cth), ss.90RD, 117

Federal Circuit Court Rules 2001, rr.21.02, 21.04, 21.10

Cases cited:

Bant & Clayton (Costs) [2016] FamCAFC 35
Colgate-Palmolive v Cussons Pty Ltd (1993) 118 ALR 248
Greedy & Greedy (1982) FLC 91 – 250
Johnson & Johnson (No 2) (Costs) (2000) FLC 93 – 040
Parke & Estate of the Late A Parke (2016) FLC 93-748
Penfold & Penfold (1980) FLC 90 – 800
Prantage & Prantage [2014] FamCA 850
Stephens & Stephens [2010] FamCAFC 117
Elden & Jacobs [2020] FCCA 2252

Applicant:

MS ELDEN

Respondent:

MR JACOBS

File Number:

BRC 13206 of 2019

Judgment of:

Judge Tonkin

Hearing date:

15 October 2020

Date of Last Submission:

15 October 2020

Delivered at:

Brisbane

Delivered on:

21 October 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

JMW Legal

ORDERS

In accordance with the Notice of Discontinuance filed on 21 August 2020 the wife’s application for adjustment of property interests and leave to extend time is withdrawn and dismissed.
Within forty two (42) days of the date of these Orders, the wife pay the husband’s costs fixed in the sum of $25,000 by way of bank cheque payable to “JMW Legal Law Practice Trust Account or by direct deposit to JMW Legal Law Practice Trust Account BSB ... Account ...17 with reference ....
The wife be at liberty to return to the Suburb LL property on a date to be agreed with the husband via his solicitor within 28 days of the date of these orders to collect her personal property and she shall be accompanied by police for that purpose.
The husband has liberty to re-list the matter in the event that the keys and remote controls to the Suburb LL property have not been returned.

IT IS NOTED that publication of this judgment under the pseudonym Elden & Jacobs (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 13206 of 2019

MS ELDEN

Applicant

And

MR JACOBS

Respondent

REASONS FOR JUDGMENT

Introduction

On 4 November 2019 the wife commenced proceedings seeking a declaration under section 90RD of the Family Law Act1975 (Cth) that a de facto relationship existed between the parties from 2005 until 18 January 2018. The respondent sought a declaration under section 90RD (1) (b) that no de facto relationship existed between the parties after 2010. The matter was heard by me on 13 July 2020. I delivered judgment on 13 August 2020[1] and made a declaration that pursuant to section 90RD (1) (b) no de facto relationship existed between the parties after 2010. I ordered that the matter be listed for mention regarding the wife’s application for leave to extend time. On 21 August 2020…

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 ELDEN & JACOBS (No.2)

Details

AGLC: ELDEN & JACOBS (No.2) [2020] FCCA 2870
Case: [2020] FCCA 2870
Decision Date: 21 October 2020

CaseChat Overview and Summary

In the matter of *Elden & Jacobs (No.2)*, Tonkin J of the Family Court of Australia considered an application for costs following the wife's discontinuance of her proceedings seeking an adjustment of property interests and leave to extend time. The husband sought costs on an indemnity basis.

The central legal issue before the court was whether there were justifying circumstances to warrant a costs order against the wife, and specifically, whether those circumstances justified an order for costs on an indemnity basis.

Tonkin J determined that justifying circumstances did exist for making a costs order. While the judgment does not detail the specific reasoning for the indemnity basis, the court ultimately ordered the wife to pay the husband's costs, fixed in the sum of $25,000. The wife was also granted liberty to collect her personal property from the Suburb LL property, accompanied by police, within 28 days of the orders. The husband retained liberty to relist the matter if the keys and remote controls to the property were not returned.

Orders

Orders of the court

ORDERS

1. In accordance with the Notice of Discontinuance filed on 21 August 2020 the wife’s application for adjustment of property interests and leave to extend time is withdrawn and dismissed.

2. Within forty two (42) days of the date of these Orders, the wife pay the husband’s costs fixed in the sum of $25,000 by way of bank cheque payable to “JMW Legal Law Practice Trust Account or by direct deposit to JMW Legal Law Practice Trust Account BSB ... Account ...17 with reference ....

3. The wife be at liberty to return to the Suburb LL property on a date to be agreed with the husband via his solicitor within 28 days of the date of these orders to collect her personal property and she shall be accompanied by police for that purpose.

4. The husband has liberty to re-list the matter in the event that the keys and remote controls to the Suburb LL property have not been returned.

IT IS NOTED that publication of this judgment under the pseudonym Elden & Jacobs (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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