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 | of | 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…
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- Ellington and Knight [2020] FamCA 135
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- [2020] FamCA 135
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CaseChat Overview and Summary
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
1.
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
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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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