Fevia and Carmel-Fevia (Costs)

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FAMILY COURT OF AUSTRALIA

FEVIA & CARMEL-FEVIA (COSTS) [2010] FamCA 143
FAMILY LAW – COSTS—Indemnity Costs—Assessment—Between Parties—Where the Husband was wholly unsuccessful at trial—Where there is a considerable disparity in financial circumstances—Circumstances that would justify indemnity costs at s 117(2A)—Where claim lacks ‘exceptional circumstances’—Order for indemnity costs refused
Family Law Act 1975 (Cth), ss 4, 79, 117, 117(1), 117(2)
Family Law Rules Chapter 19
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
David (No.2) Re Costs (1998) 23 FamLR 139
Fevia v Carmel –Fevia (2009) 42 Fam LR 50
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
I & I (No.2) (1995) FLC 96-625
Latoudis v Casey (1990) 1706 CLR 534
McDonald (1994) FLC 92-508
Penfold & Penfold (1980) 144 CLR 311
Re Skeates-Udy and Skeates (1995) FLC 92-626
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FLC 93-029
APPLICANT: Ms Carmel-Fevia
RESPONDENT: Mr Fevia
FILE NUMBER: MLC 4389 of 2008
DATE DELIVERED: 2 March 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: Murphy J
SUBMISSION DATES:

Applicant: 23/09/2009

Respondent: 14/10/2009
Applicant in Reply: 20/10/2009
Respondent in Reply: 27/10/2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Bartfeld QC
SOLICITOR FOR THE APPLICANT: Taussig Cherie and Associates
COUNSEL FOR THE RESPONDENT: Mr M Wheelahan SC and Mr GP Thompson
SOLICITOR FOR THE RESPONDENT: Saxbys Lawyers

Orders

IT IS ORDERED THAT:

  1. The husband pay the wife’s costs of and incidental to the proceedings, including the costs of and incidental to the application for costs, in such amount as is agreed in writing between the parties or, failing agreement, to be taxed.

  2. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel including Senior Counsel both in respect of the proceedings and the application for costs.

IT IS NOTED that publication of this judgment under the pseudonym Fevia & Carmel-Fevia (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC4389 of 2008

MS CARMEL-FEVIA

Applicant

And

MR FEVIA

Respondent

REASONS FOR JUDGMENT

(COSTS)

  1. On 3 September 2009 I delivered Reasons for Judgment in respect of competing allegations by the husband and wife in and about a binding financial agreement (Fevia v Carmel –Fevia (2009) 42 Fam LR 50).

  2. At the conclusion of my reasons in that matter I made orders in respect of Applications for Costs as follows:

    (1)It be declared that:

    (a)there is no “financial agreement” in existence between the Applicant and the Respondent within the meaning of the Family Law Act 1975 (Cth); and

    (b)there is no financial agreement between the Applicant and the Respondent which is “binding” within the meaning of the Act.

    (2)The application of the wife for settlement of property pursuant to s 79 of the Act be listed before a Registrar at a date and a time to be advised for the making of further…

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Details
Case
[2010] FamCA 143
Decision Date

CaseChat Overview and Summary

In the matter of *Fevia and Carmel-Fevia (Costs)*, Murphy J of the Family Court of Australia considered an application for costs following earlier proceedings between the husband and wife.

The primary legal issue before the Court was the determination of the appropriate costs order to be made, specifically whether the husband should be ordered to pay the wife's costs and whether the attendance of counsel, including senior counsel, was justified in the proceedings and the costs application.

Murphy J reasoned that the husband should bear the wife's costs, including those related to the costs application itself. The Court further determined that, pursuant to Rule 19.50 of the *Family Law Rules 2004*, the matter was of sufficient complexity and importance to warrant the attendance of counsel, including senior counsel, for both the substantive proceedings and the costs application. The quantum of the costs was to be agreed between the parties or, failing agreement, taxed.

Orders

Orders of the court

IT IS ORDERED THAT:

1.

The husband pay the wife’s costs of and incidental to the proceedings, including the costs of and incidental to the application for costs, in such amount as is agreed in writing between the parties or, failing agreement, to be taxed.

2.

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel including Senior Counsel both in respect of the proceedings and the application for costs.

Background

Background to the litigation

Full text does not contain this section.

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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