Legal Research
Cases
Foley and Foley (Costs)

Foley and Foley (Costs)

Case [2018] FamCA 319 11 May 2018

Type to search within this case.

FAMILY COURT OF AUSTRALIA

FOLEY & FOLEY (COSTS)

[2018] FamCA 319

FAMILY LAW – COSTS – Application by wife seeking a costs order on an indemnity basis against the husband on the substantive proceedings – Application by wife in the alternative seeking costs orders on a cascading basis being in a sum determined by the court, or on a practitioner/client basis as agreed and assessed or on a party/party basis as agreed or assessed – Orders made that husband pay a proportion of wife’s costs on a party/party basis as assessed by a judge.

FAMILY LAW – COSTS – Application by wife for costs on the costs application – Application dismissed.

FAMILY LAW – COSTS – Consideration of barristers’ cancellation fees.

Family Law Act 1975 (Cth) ss 117, 117(2A)
Legal Profession Uniform Law (NSW) 2014 s 172
Federal Court of Australia Act 1976 (Cth) s 23

Cachia v Hanes (1994) 179 CLR 403
Prantage v Prantage (2013) FLC 93-544
Re Keith Hercules & Sons v Steedman and Others [1987] FCA 472
Atkins & Hunt and Ors [2018] FamCA 14
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
The Pilbara Infrastructure Pty Ltd v. Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S)
Wilkie v Gordian Runoff Ltd [2005] NSWSC 873
K & V [2006] FamCA 252
Levy v Bergseng (2008) 72 NSWLR 178
Commissioner of Police v Hoffman (2014) 18 DCLR (NSW) 320
Twigg & Keady (1996) FLC 92-712
Re Blyth & Fanshawe; Ex parte Wells (1882) 10 QBD 207

A.G. Saddington and Brian K. White, Costs, solicitor and client: with precedents of bills in contested matters in the High Court, Supreme Court, Court of Bankruptcy (Law Book Co., 1947)
Council of Australian Governments (COAG) National Legal Profession Reform Discussion Paper: Legal Costs, 4 November 2009

APPLICANT:

Ms Foley

RESPONDENT:

Mr Foley

FILE NUMBER:

SYC

3203

2016

DATE DELIVERED:

11 May 2018

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

12 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr W SC

SOLICITOR FOR THE APPLICANT:

V Firm

COUNSEL FOR THE RESPONDENT:

Mr ZZ

SOLICITOR FOR THE RESPONDENT:

X Firm

Orders

The time for making an application for costs in respect of the parenting orders made 21 December 2017 is extended to 2 February 2018.
The husband shall pay to the wife $359,712, being part of the wife’s legal costs of these proceedings.

IT IS NOTED

The wife may set off the amount due pursuant to these costs orders against the sum of $338,381 payable by her pursuant to the property orders dated 15 February 2018 and amended 22 February 2018.
The balance of costs of $21,331 shall be paid by the husband to the wife, within six (6) months from 15 February 2018.
All extant applications in a case are dismissed.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered…

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 Foley and Foley (Costs)

Details

AGLC: Foley and Foley (Costs) [2018] FamCA 319
Case: [2018] FamCA 319
Decision Date: 11 May 2018

CaseChat Overview and Summary

In *Foley and Foley (Costs)*, Benjamin J of the Family Court of Australia considered an application by the wife for costs orders against the husband following substantive proceedings. The wife sought costs on an indemnity basis, or alternatively, on a cascading basis including practitioner/client or party/party costs.

The primary legal issue before the court was the appropriate basis upon which the husband should be ordered to pay the wife's costs. This involved considering the wife's various applications for costs, including an application for costs in relation to the costs application itself, and the specific circumstances of the substantive proceedings that would inform the court's discretion. The court also had to consider the inclusion of barristers' cancellation fees within the costs assessment.

His Honour determined that the husband should pay a proportion of the wife's legal costs on a party/party basis. The court extended the time for making the costs application in respect of the parenting orders made on 21 December 2017 to 2 February 2018. Ultimately, the husband was ordered to pay the wife $359,712, representing a portion of her legal costs. The wife's application for costs in relation to the costs application was dismissed.

Orders

Orders of the court

The time for making an application for costs in respect of the parenting orders made 21 December 2017 is extended to 2 February 2018.

The husband shall pay to the wife $359,712, being part of the wife’s legal costs of these 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Foley and Foley (Costs) [2018] FamCA 319

Most Recent Citation

FOLEY & FOLEY [2019] FamCAFC 61

Cases citing this decision · 2 of 2 shown

Rahman v Rahman (No 4)
[2025] NSWSC 801 Para 14

…ral authority is well-established and they form the foundation of fair property distribution under the Family Law Act 1975 (Cth), s 79: Foley & Foley [2018] FamCA 319; Matthews & Norris [2020] FamCA 547; Adamson & Korac (No. 2) [2022] FedCFFAMCC1F 638. Mr Rahman submits that the valuation was obtained from Independ…
FOLEY & FOLEY
[2019] FamCAFC 61

…Foley & Foley (Costs) (2018) 58 Fam LR 52; [2018] FamCA 319 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mallet v Mallet (1984) 156 CLR 605; [1…

View all 2 citing cases →

Cases cited in this decision · 18 of 18 shown

Atkins & Hunt And Ors
[2018] FamCA 14 Para 6

…This interpretation was confirmed by Watts J in Atkins & Hunt and Ors [2018] FamCA 14 where he said:- 68. The statutory basis for the power to make an order in the terms sought by the wife directed to both the husband’s lawyers and the wife’s lawyers can be found in s 34 of the Act (see Re Keith Hercules & Sons v…
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2]
[2014] WASC 345 Para 29

…ioner of Australian Federal Police v Razzi (No 2) (supra) was cited by Edelman J in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 (S) where he said:- 39. That was said more than two decades ago. It appears that it is not as uncommon today for a party to agree to pay a cancellati…
Commissioner of Police v Hoffman
[2014] NSWDC 113 Para 7

…In Commissioner of Police v Hoffman (2014) 18 DCLR (NSW) 320 Neilson DCJ said:- 42. I reject the contention that ABC did not do any relevant "work" which entitled him to charge a fee of brief. He held himself available at all material times until the matter was settled, until at least 13 March 2012 when he returned the brief, having advi…
Levy v Bergseng (No 2)
[2008] NSWSC 958 Para 6

…The question of cancellation fees was discussed by Rothman J in Levy v Bergseng (2008) 72 NSWLR 178 where his Honour found that the fee in that circumstance was reasonable, but warned:- 111. Nothing in this judgment should be taken as a general proposition that all counsel in all cases can reasonably and justly charge…
Seven Network Ltd v News Ltd
[2007] FCA 1062 Para 13

…that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute’. In Seven Network Ltd v News Ltd [2007] FCA 1062, Justice Sackville commented adversely on the disproportionate amount of the legal fees relative to the amount ultimately in dispute. His Honour has subs…
K & v
[2006] FamCA 252 Para 5

…Deputy Chief Justice Faulks in K & V [2006] FamCA 252 said:- 108. In the submissions from the wife I was supplied with the fees agreement for Mr J of Counsel. Such documents do not often find their way into evidence. Clause 4 refers to “cancellation fees” that is, fees payable to the barrister for not attending Cou…
Wilkie v Gordian Runoff
[2005] NSWSC 873 Para 1

…In the more recent case of Wilkie v Gordian Runoff Ltd [2005] NSWSC 873 McDougall J was faced with a claim for cancellation fees sought in the context of a claim for insurance cover to meet these costs. The Court was to determine whether it was reasonable for Mr Wilkie to agree to pay cancellation fees.…
NMFM Property Pty Ltd v Citibank Ltd (No 2)
[2001] FCA 480 Para 25

…indemnity costs. 102. It is important in this context to recognise, as Lindgren J did in NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77 at [56], that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which…
DJL v Central Authority
[2000] HCA 17 Para 6

…in identical terms to s 34 of the Act). This court also has the incidental and necessary power of a statutory court ( DJL v The Central Authority (2000) 201 CLR 226 at 241; Woolf v Snipe (1933) 48 CLR 677 at 678-679; Re P’s Bill of Costs (1982) FLC 91-255 at 77,416-77,417; Weiss v Barker Gosling (1993) FLC 92-399 at…
Cachia v Hanes
[1994] HCA 14

…Cachia v Hanes (1994) 179 CLR 403 Prantage v Prantage (2013) FLC 93-544 Re Keith Hercules & Sons v Steedman and Others [1987] FCA 472 Atkins & Hunt and Ors [2018] FamCA 14 Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 The Pilbara Infrastructure Pty Ltd v. Brockman Iron Pty Ltd [No 2] [2014] W…
Commissioner of Australian Federal Police v Razzi (No 2)
[1991] FCA 267 Para 27

…In Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 Wilcox J observed:- 9. I do not think that a solicitor-client order would in fact enable recovery of "cancellation fees". A solicitor-client costs order enables the recipient of the order to recover the actual costs, reasonably incurred, o…
Simplicity Funerals Ltd v Simplicity Funerals Pty Ltd
[1987] FCA 472 Para 5

…In terms of this provision the Full Court of the Federal Court said in Re Keith Hercules & Sons v Steedman and Others [1987] FCA 472 said:- 19. Section 23 is expressed in plain words which should be given their ordinary meaning. As was pointed out by the High Court in Jackson v. Sterling Industries Limited (1987)…
Jackson v Sterling Industries Ltd
[1987] HCA 23 Para 5

…expressed in plain words which should be given their ordinary meaning. As was pointed out by the High Court in Jackson v. Sterling Industries Limited (1987) 61 ALJR 332 and by the Full Court of this Court in the same case (1986) 69 ALR 92 there is no justification for reading down the language of s. 23 so as to restr…
Hughes v Western Australian Cricket Association (inc)
[1986] FCA 465 Para 5

…In terms of this provision the Full Court of the Federal Court said in Re Keith Hercules & Sons v Steedman and Others [1987] FCA 472 said:- 19. Section 23 is expressed in plain words which should be given their ordinary meaning. As was pointed out by the High Court in Jackson v. Sterling Industries …
Hiero Pty Ltd v Somers, William Anthony
[1983] FCA 161 Para 5

…ustice in exercising the judicial power of the Commonwealth in matters over which it has jurisdiction' (Ellicott J. in Hiero Pty. Limited v. Somers (1983) 68 FLR 171 at 178; 47 ALR 605 at 612 ..." See also the reasons for judgment of Mason C.J. at 332-3, Brennan J. at 344, Deane J. at 335-6 and Gaudron J. at 344. ……
Penfold v Penfold
[1980] HCA 4 Para 4

…In Penfold v Penfold (1980) FLC 90-800 the majority of the High Court expressed the general rule that s 117(1) is not paramount to s 117(2) of the Act. A court must make a finding that there are circumstances justifying the making of a costs order before proceeding to make the orders.…
Woolf v Snipe
[1933] HCA 5 Para 6

…his court also has the incidental and necessary power of a statutory court ( DJL v The Central Authority (2000) 201 CLR 226 at 241; Woolf v Snipe (1933) 48 CLR 677 at 678-679; Re P’s Bill of Costs (1982) FLC 91-255 at 77,416-77,417; Weiss v Barker Gosling (1993) FLC 92-399 at 80,071). This, in my view, includes the…
(1882) 10 QBD 207
(1882) 10 QBD 207 Para 26

…This would even be the case if there was compliance with the Rule in Re Blyth & Fanshawe; Ex parte Wells (1882) 10 QBD 207, where Baggallay, L.J. said at 210:- I take it to be the general rule of law, and an important rule which is to be observed in almost all cases, that if an unusual expense is about to be incurre…

Legislation cited in this decision · 5

Family Law Act 1975 (Cth)
117, 117(2A) 3 mentions (from Para 6)
Federal Court of Australia Act 1976 (Cth)
23 2 mentions (from Para 6)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 13)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Federal Court Act 1976 (Cth)
1 mention (from Para 4)