Farina & Lofts (No. 3) - [2021] FamCA 328

FAMILY COURT OF AUSTRALIA
Farina & Lofts (No. 3) [2021] FamCA 328

File number(s): BRC 10102 of 2012

Judgment of: CAREW J

Date of judgment: 21 May 2021

Catchwords: FAMILY LAW – COSTS – Between parties – Where dispute between the parties about which party is liable for a single expert’s fees in substantive proceedings – Where single expert joined to proceedings – Where the first respondent found to be liable for single expert fees as between parties to substantive proceedings – Where first respondent is ordered to contribute to costs of applicant in a fixed sum – Where circumstances are not exceptional such as to justify indemnity costs.

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

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

Collins & Collins (1985) FLC 91-603

Fitzgerald v Fish sub nom PBF v TRF (2005) 191 FLR 294

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340

L Associates & Conlon and Anor [2015] FamCA 659

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Pilkvist & Coburn (Deceased) [2020] FamCA 92

Prantage v Prantage (2013) 49 Fam LR 197

Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

Number of paragraphs: 47

Place: Brisbane

Solicitor for the Applicant: Bluewater Lawyers

First Respondent: Self-represented

Solicitor for the Second Respondent: Bluewater Lawyers

Solicitor for the Third Respondent: Bluewater Lawyers

Solicitor for the Fourth Respondent: Results Legal

Fifth Respondent: Self-represented
ORDERS

BRC10102/2012

BETWEEN:
MR WAGNER

Applicant

AND:
MR FARINA

First Respondent

C PTY LTD

Second Respondent

D PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:
1.Mr Farina pay Mr Wagner’s costs fixed in the sum of $12,500 within 30 days of the date of this order.
2.All outstanding applications be otherwise dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farina & Lofts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J

On 8 November 2012, parenting and property proceedings were commenced between Mr Farina and Ms Lofts to which Mr Wagner and others were joined in 2014 (“the substantive proceedings”).
Mr I of U Pty Ltd was engaged as a single expert to provide a valuation of various business assets in the substantive proceedings.
The substantive proceedings were finalised by consent…

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 Farina & Lofts (No. 3)

Details

AGLC: Farina & Lofts (No. 3) [2021] FamCA 328
Case: [2021] FamCA 328
Decision Date: 21 May 2021

CaseChat Overview and Summary

In *Wagner v Farina & Lofts (No. 3)*, the applicant, Mr Wagner, sought costs orders against the first respondent, Mr Farina, following substantive proceedings. The dispute concerned liability for the fees of a single expert who had been joined to the proceedings.

The central legal issue before Carew J was to determine which party was liable for the single expert's fees as between the parties to the substantive proceedings, and to consider whether Mr Farina should contribute to Mr Wagner's costs.

Carew J found Mr Farina liable for the single expert's fees as between the parties. Furthermore, Mr Farina was ordered to contribute to the costs of the applicant in a fixed sum. The court determined that the circumstances of the case were not exceptional enough to warrant an order for indemnity costs.

Consequently, the court ordered that Mr Farina pay Mr Wagner’s costs fixed in the sum of $12,500, payable within 30 days of the order date. All other outstanding applications were dismissed.

Orders

Orders of the court

BRC10102/2012

BETWEEN:

MR WAGNER

Applicant

AND:

MR FARINA

First Respondent

C PTY LTD

Second Respondent

D PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS THAT:

1. Mr Farina pay Mr Wagner’s costs fixed in the sum of $12,500 within 30 days of the date of this order.

2. All outstanding applications be otherwise dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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.

File number(s):	BRC 10102 of 2012
Judgment of:	CAREW J
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – COSTS – Between parties – Where dispute between the parties about which party is liable for a single expert’s fees in substantive proceedings – Where single expert joined to proceedings – Where the first respondent found to be liable for single expert fees as between parties to substantive proceedings – Where first respondent is ordered to contribute to costs of applicant in a fixed sum – Where circumstances are not exceptional such as to justify indemnity costs.
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Collins & Collins (1985) FLC 91-603 Fitzgerald v Fish sub nom PBF v TRF (2005) 191 FLR 294 Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Kohan and Kohan (1993) FLC 92-340 L Associates & Conlon and Anor [2015] FamCA 659 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Pilkvist & Coburn (Deceased) [2020] FamCA 92 Prantage v Prantage (2013) 49 Fam LR 197 Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Number of paragraphs:	47
Place:	Brisbane
Solicitor for the Applicant:	Bluewater Lawyers
First Respondent:	Self-represented
Solicitor for the Second Respondent:	Bluewater Lawyers
Solicitor for the Third Respondent:	Bluewater Lawyers
Solicitor for the Fourth Respondent:	Results Legal
Fifth Respondent:	Self-represented

ORDER MADE BY:	CAREW J
DATE OF ORDER:	21 MAY 2021