Fevia and Carmel-Fevia (Costs) - [2010] FamCA 143

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

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:

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.
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)

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).
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…

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.

Keep reading for free

Create a free CaseChat account to read Fevia and Carmel-Fevia (Costs) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FamCA 143
Decision Date: 2 March 2010

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:

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.

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

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.