Ellington and Knight - [2020] FamCA 135

FAMILY COURT OF AUSTRALIA

ELLINGTON & KNIGHT

[2020] FamCA 135

FAMILY LAW – COSTS – Application by the wife for indemnity costs – Where s 117(2A) of the Family Law Act 1975 (Cth) applied – Where the husband was not successful in the proceedings and refused the wife’s offer to settle – Where the husband is in poorer financial circumstances than the wife – Where there is sound reason to depart from the general provision in relation to costs – Where the court is not satisfied that the circumstances justify an order for indemnity costs – Order that the husband pay the wife’s costs of these proceedings as assessed.

Family Law Act 1975 (Cth) s 79A and s 117
Family Law Rules 2004 (Cth) r 19.08 and r 19.18

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202
J Corporation Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2) [1993] FCA 42
Knight & Ellington [2018] FamCA 892
Knight & Ellington [2019] FamCA 488
Kohan & Kohan (1993) FLC 92-340
Yunghanns & Ors & Yunghanns & Ors & Yungahanns [2000] FLC 93-029
Z (A Solicitor) v Limousin (Costs) [2010] FLC 93-433

APPLICANT:

Ms Ellington

RESPONDENT:

Mr Knight

FILE NUMBER:

CSC

677

2007

DATE DELIVERED:

6 March 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

27 February 2020

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

That the husband pay the wife’s costs of and incidental to these proceedings as assessed, excluding her costs of and incidental to her Application in a Case filed 2 August 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellington & Knight has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC677/2007

MS ELLINGTON

Applicant

And

MR KNIGHT

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 23 July 2019, for reasons then delivered[1] (“the first reasons”) I dismissed property proceedings brought by Mr Knight (“the husband”) against Ms Ellington (“the wife”). Now, by Application in a Case filed 19 August 2019, the wife seeks an order for indemnity costs, or in the alternative, an order for costs on a non-indemnity basis.
[1]Knight & Ellington [2019] FamCA 488.
On 27 February 2020 I heard the parties’ submissions in relation to the wife’s application, and reserved my decision. This is that decision and the reasons for it.

BACKGROUND

The husband…

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 Ellington and Knight

Details

AGLC: Ellington and Knight [2020] FamCA 135
Case: [2020] FamCA 135
Decision Date: 6 March 2020

CaseChat Overview and Summary

In *Ellington and Knight*, heard before Tree J, the dispute concerned the costs of proceedings between a husband and wife. The specific nature of the underlying dispute that led to these proceedings is not detailed in the provided text.

The primary legal issue before the court was the determination of which party should bear the costs of the proceedings and to what extent. This involved considering the wife's application filed on 2 August 2018 and its impact on the overall cost order.

Tree J ordered that the husband pay the wife's costs of and incidental to the proceedings. However, this order was qualified to exclude the wife's costs specifically related to her Application in a Case filed on 2 August 2018. The final form of this order was subject to its formal entry into the Court's records.

Orders

Orders of the court

That the husband pay the wife’s costs of and incidental to these proceedings as assessed, excluding her costs of and incidental to her Application in a Case filed 2 August 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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