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Eldred and Eldred (No 2)

Eldred and Eldred (No 2)

Case [2015] FamCA 188 24 March 2015

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FAMILY COURT OF AUSTRALIA

ELDRED & ELDRED (NO 2)

[2015] FamCA 188

FAMILY LAW – COSTS – Circumstances justifying a departure from the general rule that each party pay their own costs – disproportionate costs incurred during proceedings – certification for senior counsel – costs order

Family Law Act1975 (Cth) ss 117, 117(2A)
Family Law Rules 2004 (Cth) rr 1.04, 15.52, 15.64B, 15.65, 15.69, 19.50, Sch 3
Federal Circuit Court Rules 2001 (Cth)

Bergman and Bergman (No 2) [2008] FamCA 414
Bevan and Bevan [2013] FamCAFC 116
Brown and Brown (1998) FLC 92-822
Calderbank v Calderbank [1975] 3All ER 333
Chai v Peng [2014] EWHC 750
Eldred [2015] FamCA 61
Evans v Evans [2013] EWHC 506
In the Marriage of Kohn (1977) 30 FLR 175
J v J [2014] EWHC 3654 (Fam)
LAC and TRF and LKL [2005] FamCA 158
Lambert and Jackson and Another [2011] FamCA 275
Lenova and Lenova (Costs) [2011] FamCAFC 141
Moreton and Moreton (Costs) [2009] FamCA 51
Nada and Nettle (Costs) [2014] FamCAFC 207
Penfold v Penfold (1980) 144 CLR 311
Seagrove v Sullivan [2014] EWHC 4110
Stoian and Fiening (Costs) [2014] FamCA 944
Stone and Stone (No 2) [2013] FamCA 479
Xu and Phak [2015] FamCA 10

APPLICANT:

Ms Eldred

RESPONDENT:

Mr Eldred

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10616

2012

DATE DELIVERED:

24 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

11 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John QC

SOLICITOR FOR THE APPLICANT:

Tolhurst Druce & Emerson

COUNSEL FOR THE RESPONDENT:

Mr Robinson

SOLICITOR FOR THE RESPONDENT:

Clancy & Triado

Orders

IT IS ORDERED THAT:

The husband contribute to the wife’s costs of the proceedings in the sum of $14,676.29.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) certification is given to the wife for engagement of senior counsel.
Any party wishing to make an application for the costs of this proceeding file and serve by not later than 12 noon on Wednesday 1 April 2015 a written submission to that effect, such submission to be of not more than four pages in length and include (but not be limited to) details of:-
(a) the sum at which such costs could be fixed on a party/party basis;
(b)an itemisation of professional fees for solicitors, counsels’ fees to prepare and counsels’ fees to appear; and
(c)a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.
Any party against whom an application for costs is made file and serve by not later than 12 noon on Monday 13 April 2015 a written submission in response, such submission to be of not more than three pages in length and include (but not be limited to) details of:-
(a)the sum at which the costs claimed should be fixed on a party/party basis in the event that a costs order is to be made; and
(b)a statement as…

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 Eldred and Eldred (No 2)

Details

AGLC: Eldred and Eldred (No 2) [2015] FamCA 188
Case: [2015] FamCA 188
Decision Date: 24 March 2015

CaseChat Overview and Summary

In *Eldred and Eldred (No 2)*, Bennett J of the Family Court of Australia considered an application for costs following proceedings between the husband and wife. The specific dispute leading to this costs application is not detailed in the provided text, but the orders indicate a significant financial award was made to the wife, and the court was addressing the allocation of legal expenses.

The primary legal issue before the court was the determination and quantification of costs to be awarded. This involved assessing the appropriate sum for party/party costs, considering professional fees for solicitors and barristers, and deciding whether oral argument was necessary for the final resolution of the costs application. The court also had to consider the procedural framework for making and responding to costs applications, including the timelines for written submissions and the possibility of oral hearings.

Bennett J applied the principles governing costs in family law proceedings, including the need for detailed submissions to justify claimed amounts. The court outlined a structured process for parties to present their cases on costs, allowing for initial applications, responses, and replies. The judge also provided certification for the wife's engagement of senior counsel, indicating a recognition of the complexity or significance of the matter. The court reserved the right to determine costs based on written submissions if no party sought oral argument, but also provided a mechanism for scheduling such hearings if required.

Orders

Orders of the court

IT IS ORDERED THAT:

The husband contribute to the wife’s costs of the proceedings in the sum of $14,676.29.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) certification is given to the wife for engagement of senior counsel.

Any party wishing to make an application for the costs of this proceeding file and serve by not later than 12 noon on Wednesday 1 April 2015 a written submission to that effect, such submission to be of not more than four pages in length and include (but not be limited to) details of:-

(a) the sum at which such costs could be fixed on a party/party basis;

(b) an itemisation of professional fees for solicitors, counsels’ fees to prepare and counsels’ fees to appear; and

(c) a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.

Any party against whom an application for costs is made file and serve by not later than 12 noon on Monday 13 April 2015 a written submission in response, such submission to be of not more than three pages in length and include (but not be limited to) details of:-

(a) the sum at which the costs claimed should be fixed on a party/party basis in the event that a costs order is to be made; and

(b) a statement as to whether that party wishes, at this stage, for the matter to be listed for oral argument as to costs.

Any party who is served with a response pursuant to the preceding paragraph of this Order may, within 14 days of service upon them of that response, file and serve a written submission in reply, of not more than three pages, confined to alleged errors of fact and law and say, finally, whether that party wants the matter to be listed for oral argument.

If no party seeks to have the matter listed for oral argument on the issue of costs, the Court may proceed to determine the applications for costs based on written submissions.

If either party does seek to have the matter listed for oral argument on the issue of costs, counsel for that party confer with counsel who will be briefed to appear for the other party to ascertain mutually convenient dates on which the matter can be listed before me at 9.00 am estimated to take not more than one hour.

Subject to further order of the court, the times for filing and service of submissions as to costs may be varied by agreement between the applicant for costs and the party against whom costs are sought and any such agreement should be referred to in the submissions or evidenced by correspondence attached to any submission which is filed and served.

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.

Citations

AGLC Citation

Eldred and Eldred (No 2) [2015] FamCA 188

Most Recent Citation

Rendon and West and Ors (No.2) [2019] FCCA 461

Cases citing this decision · 4 of 4 shown

YIM & ZIETH (No.4)
[2020] FCCA 245 Para 4

…costs.[1] [1] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, [41]; Eldred & Eldred (No.2) [2015] FamCA 188, [22].…
Vaile and Labrum and Ors (No.2)
[2019] FCCA 3477 Para 4

…r costs. [1] Fitzgerald (as child representative for AF (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, [41]; Eldred & Eldred (No.2) [2015] FamCA 188, [22]. [2] (2005) 33 Fam LR 123, [41].…
BECKERT & BECKERT (No.2)
[2019] FCCA 1488 Para 23

…each such factor must be undertaken in the exercise of the discretion to award costs: LAC & TRF & LKL [2005] FamCA 158, [41]; Eldred & Eldred (No 2) [2015] FamCA 188, [22]. The authorities recognise that there may be one factor which so dominates the particular facts and circumstances of the case that it may suffi…
Rendon and West and Ors (No.2)
[2019] FCCA 461 Para 3

…each such factor must be undertaken in the exercise of the discretion to award costs: LAC & TRF & LKL [2005] FamCA 158, [41]; Eldred & Eldred (No 2) [2015] FamCA 188, [22]. The authorities recognise that there may be one factor which so dominates the particular facts and circumstances of the case that it may suffi…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

Eldred & Eldred
[2015] FamCA 61 Para 2

…On 9 February 2015 I pronounced final orders and provided reasons for my decision, which are reported under case neutral citation [2015] FamCA 61. The wife indicated through counsel that she wished to make submissions as to costs. I determined that submissions ought to be made orally and the hearing was held on 11…
Xu and Phak
[2015] FamCA 10 Para 1

…satisfy the taxing authority that such costs are on balance not fair and reasonable, that is the reversal of the onus of proof. [2] Xu and Phak [2015] FamCA 10 at [17]. [3] Family Law Rules 2004 (Cth) r 19.18(1)(b). [4] See also Family Law Rules 2004 (Cth) r 19.08(3).…
Stoian & Fiening (Costs)
[2014] FamCA 944 Para 5

…Finally, Mr St John referred to Stoian and Fiening (Costs) [2014] FamCA 944 (“ Stoian ”), wherein Kent J made orders as to the costs from a three day trial to finally determine the property interests of the parties to a marriage. His Honour determined that the net pool of assets and financial resources at issue in…
Nada & Nettle (Costs)
[2014] FamCAFC 207 Para 5

…t John submitted that his client had adopted a reasonable approach to husband’s offer. Mr St John referred to the case of Nada and Nettle (Costs) [2014] FamCAFC 207, which affirmed what was said at [10] – [13] of Lenova and Lenova (Costs) [2011] FamCAFC 141, to argue that a rejected offer is one of the factors the Co…
Stone and Stone (No 2)
[2013] FamCA 479 Para 9

…t senior counsel was not necessary in this case. He began quoting [74] of Stoian , set out above. Mr Robinson also referred to Stone and Stone (No 2) [2013] FamCA 479, wherein Fowler J discussed why the matter was appropriate for senior counsel. In that case, the property pool was significantly larger than that at…
Lenova & Lenova (Costs)
[2011] FamCAFC 141 Para 5

…hn referred to the case of Nada and Nettle (Costs) [2014] FamCAFC 207, which affirmed what was said at [10] – [13] of Lenova and Lenova (Costs) [2011] FamCAFC 141, to argue that a rejected offer is one of the factors the Court must have regard to in considering whether to make an order for costs but it is not necessa…
Lambert v Jackson
[2011] FamCA 275 Para 3

…Mr St John referred to Lambert and Jackson and Another [2011] FamCA 275 (“ Lambert ”), arguing that the factors mentioned therein applied equally to this case: [143] This is a case where the facts in dispute were contentious. It was reasonable for those representing the wife to conclude that experienced counsel who…
Moreton and Moreton (Costs)
[2009] FamCA 51 Para 4

…Mr St John referred to Moreton and Moreton (Costs) [2009] FamCA 51 (“ Moreton ”), an case in which senior counsel appeared at all times without a junior, and submitted Murphy J’s remarks are equally applicable to this case: [81] The reasonableness or otherwise of engaging senior counsel ought, in my view, be deter…
Bergman and Bergman (No. 2)
[2008] FamCA 414 Para 9

…cited by Mr Robinson for the same reason; that case involved a property pool of around $7 million. Mr Robinson also cited Bergman and Bergman (No 2) [2008] FamCA 414, wherein both sides had engaged senior counsel which wasn’t the case here, and Lambert , wherein the complexity of the case and volume of material we…
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another
[2005] FamCA 158 Para 13

…costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations. [12] LAC and TRF and LKL [2005] FamCA 158 at [41]. [13] (1998) FLC 92-822 at 85,347.…
Penfold v Penfold
[1980] HCA 4

…[2011] FamCA 275 Lenova and Lenova (Costs) [2011] FamCAFC 141 Moreton and Moreton (Costs) [2009] FamCA 51 Nada and Nettle (Costs) [2014] FamCAFC 207 Penfold v Penfold (1980) 144 CLR 311 Seagrove v Sullivan [2014] EWHC 4110 Stoian and Fiening (Costs) [2014] FamCA 944 Stone and Stone (No 2) [2013] FamCA 479 Xu and Phak [201…
Bevan & Bevan
[2013] FamCAFC 116 Para 3

…ise of the discretion may be the same or similar to the factors in s 117(2A), albeit that they may be differently applied.[6] [6] See Bevan and Bevan [2013] FamCAFC 116 at [89].…

Legislation cited in this decision · 3

Family Law Rules 2004 (Cth)
1.04, 15.52, 15.64B, 15.65, 15.69, 19.08... 9 mentions (from Para 1)
Family Law Act 1975 (Cth)
117, 117(2A) 3 mentions (from Para 1)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 1)