Emer & Caris (No 2) - [2024] FedCFamC1F 404

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Emer & Caris (No 2) [2024] FedCFamC1F 404

File number: MLC 9665 of 2022

Judgment of: STRUM J

Date of judgment: 14 June 2024

Catchwords: FAMILY LAW – COSTS – Ex Tempore Reasons – Where the applicant sought a costs order on an indemnity basis or, if unsuccessful, party-party costs – Where the respondent was found not to be a credible witness – Where the respondent advanced a case which was false and occasioned delay – Where the respondent resides in the applicant’s home rent free – Where an incapacity to meet an order for costs is not a bar to a costs order being made – Where the applicant privately funded his legal representation and the respondent received legal representation pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) – Where the applicant was put to considerable cost in disproving the respondent’s case – Where the respondent was wholly unsuccessful in her application for a declaration pursuant to s 90RD(1) of the Act – Where the applicant made an offer of compromise to the respondent – Where the offer of compromise was rejected by the respondent – Where the respondent’s refusal to accept the applicant’s offer of compromise was imprudent – Order for indemnity costs.

Legislation: Family Law Act 1975 (Cth) ss 90RD, 90SM, 102NA, 117

Cases cited:
Calderbank & Calderbank [1975] 3 All ER 333

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

Cooper & Oakley (No 2) [2012] FamCAFC 187

Davida v Davida(Costs) [2011] FamCAFC 61

Emer & Caris [2024] FedCFamC1F 251

Fitzgerald & Fish & Lynch (2005) 33 Fam LR 123

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311

Prantage & Prantage (2013) 49 Fam LR 197

Division: Division 1 First Instance

Number of paragraphs: 54

Date of hearing: 6 June 2024

Place: Melbourne

Solicitor for the Applicant: Sage Family Lawyers

The Respondent: Litigant in person
ORDERS

MLC 9665 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR EMER

Applicant

AND:
MS CARIS

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

6 JUNE 2024

THE COURT ORDERS THAT:
1.The Respondent pay the Applicant’s costs of and incidental to these proceedings fixed in the amount of $56,324.40, being the Applicant’s costs sought on an indemnity basis.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975

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 Emer & Caris (No 2)

Details

AGLC: Emer & Caris (No 2) [2024] FedCFamC1F 404
Case: [2024] FedCFamC1F 404
Decision Date: 14 June 2024

CaseChat Overview and Summary

The case of Emer & Caris (No 2) involved the applicant, Mr. Emer, and the respondent, Ms. Caris, who were engaged in a legal dispute over costs. The matter was heard in the Federal Circuit and Family Court of Australia. Mr. Emer sought an order for costs on an indemnity basis or, if unsuccessful, for party-party costs, due to the respondent's unreliability as a witness and the false nature of her case which caused significant delays. The respondent resided rent-free in the applicant's home and was deemed wholly unsuccessful in her application. The court needed to determine whether the applicant's private funding of his legal representation justified an indemnity costs order, and if the respondent's refusal to accept a compromise offer was imprudent.

The legal issues centred around the principles governing costs in family law matters, particularly under section 90RD(1) of the Family Law Act 1975, and the factors that should be considered when determining whether to award costs on an indemnity basis. The court had to assess the credibility of the respondent, the impact of her case on the proceedings, and the reasonableness of the applicant's costs. Additionally, the court examined the respondent's refusal to accept a compromise offer and whether this refusal was justified under the circumstances. The court also considered the Full Court's comments in Prantage & Prantage (2013) 49 Fam LR 197, which cautioned against making indemnity costs orders in family law matters.

The court, in its reasons, found the respondent to be not credible and her case to be based on falsehoods, leading to significant delays and costs for the applicant. The refusal to accept a compromise offer was deemed imprudent given the clear unreliability of the respondent's case. Despite the substantial costs claimed, the court concluded that making an indemnity costs order was appropriate given the circumstances. The court ordered the respondent to pay the applicant's costs of and incidental to these proceedings in the amount of $56,324.40, which represented the applicant's costs sought on an indemnity basis.

The final orders were made on 6 June 2024, requiring the respondent to pay the applicant’s costs, subject to minor corrections or variations as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. This ruling underscores the court's authority to order indemnity costs in cases where a party's conduct significantly impacts proceedings and leads to unnecessary delays and expenses.

Orders

Orders of the court

MLC 9665 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EMER

Applicant

AND:

MS CARIS

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

6 JUNE 2024

THE COURT ORDERS THAT:

1. The Respondent pay the Applicant’s costs of and incidental to these proceedings fixed in the amount of $56,324.40, being the Applicant’s costs sought on an indemnity basis.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Lastly, Holden CJ referred to an imprudent refusal and offer to compromise. I have already referred above to the respondent’s refusal of the applicant’s written offer of settlement in late April 2023.CONCLUSION Given the matters which formed the subject of my reasons for judgment delivered on 17 April 2024, and with the benefit now of knowing that an offer of settlement was made, I am of the view that the respondent’s refusal to accept the applicant’s offer of compromise can properly be described as imprudent. This was not a case in relation to which reasonable minds might have differed. Given my findings of credit, the respondent must have known that her case was substantially founded upon untruths. Whilst I take into account, and I am cognisant of, the comments of the Full Court in Prantage & Prantage (2013) 49 Fam LR 197, in my view, in the particular circumstances of this case, it is appropriate to make an order for indemnity costs and I shall so order. In any event, I note that the range of costs sought by the applicant is, at its highest, $56,324.40 and, at its lowest, $41,544.67. On either basis, a costs order may well be a pyrrhic victory for the applicant because, it would seem on the evidence before me, there is at least a likelihood that any order I make will not be capable of being satisfied. However, that is not a reason not to make a costs order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLC 9665 of 2022
Judgment of:	STRUM J
Date of judgment:	14 June 2024
Catchwords:	FAMILY LAW – COSTS – Ex Tempore Reasons – Where the applicant sought a costs order on an indemnity basis or, if unsuccessful, party-party costs – Where the respondent was found not to be a credible witness – Where the respondent advanced a case which was false and occasioned delay – Where the respondent resides in the applicant’s home rent free – Where an incapacity to meet an order for costs is not a bar to a costs order being made – Where the applicant privately funded his legal representation and the respondent received legal representation pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) – Where the applicant was put to considerable cost in disproving the respondent’s case – Where the respondent was wholly unsuccessful in her application for a declaration pursuant to s 90RD(1) of the Act – Where the applicant made an offer of compromise to the respondent – Where the offer of compromise was rejected by the respondent – Where the respondent’s refusal to accept the applicant’s offer of compromise was imprudent – Order for indemnity costs.
Legislation:	Family Law Act 1975 (Cth) ss 90RD, 90SM, 102NA, 117
Cases cited:	Calderbank & Calderbank [1975] 3 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cooper & Oakley (No 2) [2012] FamCAFC 187 Davida v Davida(Costs) [2011] FamCAFC 61 Emer & Caris [2024] FedCFamC1F 251 Fitzgerald & Fish & Lynch (2005) 33 Fam LR 123 Kohan & Kohan (1993) FLC 92-340 Latoudis v Casey (1990) 170 CLR 534 Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486 Munday v Bowman (1997) FLC 92-784 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage (2013) 49 Fam LR 197
Division:	Division 1 First Instance
Number of paragraphs:	54
Date of hearing:	6 June 2024
Place:	Melbourne
Solicitor for the Applicant:	Sage Family Lawyers
The Respondent:	Litigant in person

MLC 9665 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR EMER Applicant
AND:	MS CARIS Respondent

ORDER MADE BY:	STRUM J
DATE OF ORDER:	6 JUNE 2024