Ferguson & Strickland - [2022] FedCFamC1F 516

Federal Circuit and Family Court of Australia
(DIVISION 1)
Ferguson & Strickland [2022] FedCFamC1F 516

File number(s): PAC 1229 of 2021

Judgment of: WILSON J

Date of judgment: 21 July 2022

Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST – COSTS – application for costs – scale cost orders made.

Legislation: Family Law Act (1975) Cth ss 75(2) and 117(2A)(c).

Cases cited:
Agosti & Agosti [2021] FedCFamC1F 72

Calderbank v Calderbank [1975] 3 All ER 333

Cutts v Head [1984] 1 All ER 597

Kyle & Kyle [2022] FedCFamC1F 251

Division: Division 1 First Instance

Number of paragraphs: 20

Date of last submission/s: 11 July 2022

Date of hearing: On the papers

Place: Melbourne

Solicitor for the Applicant: Matthews Folbigg Pty Ltd

Solicitor for the Respondent: Byron & Associates
ORDERS

PAC 1229 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FERGUSON

Applicant

AND:
MR STRICKLAND

Respondent

order made by:

JUDGE

DATE OF ORDER:

21 JULY 2022

THE COURT ORDERS THAT:
1.The husband must pay the wife her costs in the scale amount of $21,590.57.
2.The wife’s solicitors must apply the sum of $18,318 from their trust account in satisfaction of costs ordered by these reasons.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferguson & Strickland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J

Following the making of the award in this proceeding on 17 March 2022, the wife has applied for an order that the husband pay her costs either in the sum of $36,674.74 on an indemnity basis or $21,590 on scale. The wife contends that s 117(2A)(c) of the Family Law Act has been engaged.
As these reasons explain, I agree that an order should be made that the husband pays the wife her costs in the scale amount of $21,590.
The arbitrator determined that the wife should receive 70% of the asset pool and that the husband should receive 30% of the asset pool, superannuation being treated as part of the overall pool of assets and not as a separate pool. In paragraph 89 of the arbitrator’s award, erroneously described as “this judgment”, the arbitrator pronounced that orders were made in accordance with the “minute”, also erroneously described by the phrase “the court orders” in accordance with paragraphs…

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 Ferguson & Strickland

Details

AGLC: Ferguson & Strickland [2022] FedCFamC1F 516
Case: [2022] FedCFamC1F 516
Decision Date

CaseChat Overview and Summary

The case of Ferguson v Strickland involves a dispute concerning costs following a property settlement proceeding. The Federal Circuit and Family Court of Australia was tasked with determining whether the husband should be ordered to pay the wife's costs on a scale or indemnity basis. The wife applied for an order that the husband pay her costs either in the sum of $36,674.74 on an indemnity basis or $21,590 on scale. The legal issues before the court were whether the husband's conduct during the litigation warranted an order for costs under section 117(2A)(c) of the Family Law Act and whether the outcome of the arbitral award was more favourable to the wife than her earlier offer to settle.

The court found that the husband's deficiencies in disclosure were critical, leading to an adjournment of the arbitration and the issuance of subpoenas. However, the court placed greater weight on the comparison between the offer to settle dated 25 October 2021 and the terms of the arbitral award. The court determined that had the husband accepted the offer, he would have been in a more advantageous position than the outcome of the arbitral award. Therefore, the court found that the wife's proposal was better than the arbitral award, and a costs order was justified under section 117(2A)(c) of the Family Law Act. The court ordered that the husband pay the wife's costs in the scale amount of $21,590.57. Given that the wife's solicitors had $18,318 in their trust account, the court ordered them to apply this sum in satisfaction of the costs ordered.

In summary, the court ruled that the husband's failure to accept a more favourable offer to settle than the arbitral award justified an order for the wife's costs. The court ordered the husband to pay the wife's costs in the scale amount of $21,590.57, and directed the wife's solicitors to apply the available funds of $18,318 from their trust account towards the costs ordered.

Orders