Galani & Galani (No. 2) - [2021] FamCA 387

FAMILY COURT OF AUSTRALIA
Galani & Galani (No. 2) [2021] FamCA 387

File number(s): MLC 13970 of 2020

Judgment of: WILLIAMS J

Date of judgment: 10 June 2021

Catchwords: FAMILY LAW – COSTS.

Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Cases cited:
Galani & Galani [2021] FamCA 229

In the Marriage of I and I (No. 2) (1995) 22 Fam LR 557

Worth & Worth (No. 2) [2019] FamCAFC 126

Number of paragraphs: 31

Date of last submission/s: 21 May 2021

Date of hearing: 13 April 2021

Place: Melbourne

The Applicant: No Appearance

Solicitor for the Respondent: Ms Carson

Solicitor for the Respondent: Kennedy Guy
ORDERS

MLC 13970 of 2020

BETWEEN:
MR GALANI
Applicant

AND:
MS GALANI
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

10 JUNE 2021

THE COURT ORDERS THAT:
1.The husband pay the party/party costs and disbursements of the wife, of and incidental to the Initiating Application filed on 16 December 2020, including the costs of preparation of the costs submissions, fixed in the sum of $2,384.23.
2.The payment referred to in order (1) hereof be made within 30 days of these orders.

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 Galani & Galani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J

This matter was listed in the Judicial Duty List on 13 April 2021. The substantive issue for consideration before the Court on that day was the husband’s Application in a Case filed 16 December 2020 and the wife’s response filed 15 March 2021.
The husband did not appear on 13 April 2021 and the wife proceeded with an application to summarily dismiss the husband’s Application in a Case. That matter was heard and determined by me and I made orders and published my reasons on 23 April 2021, Galani & Galani [2021] FamCA 229.
My reasons set out the background of the dispute and the litigation between the parties subsequent to final orders having been made on 24 March 2017. I do not propose to repeat the background and procedural history of the dispute.
The current application before me is the wife’s application for costs arising out of the husband’s Application in a Case. Orders made on 23 April 2021 provided that any written submissions as to costs, which shall not exceed five pages, shall be filed and served within 28 days, with a copy to be emailed to my associate.
On 21 May 2021, the wife’s solicitors filed submissions as to costs on behalf of the wife.…

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 Galani & Galani (No. 2)

Details

AGLC: Galani & Galani (No. 2) [2021] FamCA 387
Case: [2021] FamCA 387
Decision Date: 10 June 2021

CaseChat Overview and Summary

In *Galani & Galani (No. 2)*, Williams J of the Family Court of Australia considered an application for costs made by the wife against the husband. The dispute concerned the husband's Initiating Application filed on 16 December 2020, and the wife sought costs in relation to this application.

The primary legal issue before the court was whether to order costs on an indemnity basis or a party/party basis. The court was required to determine if exceptional circumstances existed to justify departing from the usual basis of costs, as outlined in established authorities such as *Worth & Worth (No. 2)*.

Williams J reasoned that while the husband's conduct was unacceptable and warranted a costs order, the circumstances did not meet the threshold for indemnity costs. The judge referred to categories of exceptional circumstances, including commencing or continuing proceedings with no chance of success, making false allegations of fraud, evidence of misconduct causing loss of time, making allegations that ought not to have been made, or unduly prolonging a case with groundless contentions. The court found that these exceptional circumstances were not present in this matter. Consequently, the court ordered the husband to pay the wife's party/party costs and disbursements incidental to the Initiating Application, fixed at $2,384.23, to be paid within 30 days.

Orders

Orders of the court

MLC 13970 of 2020

BETWEEN:

MR GALANI

Applicant

AND:

MS GALANI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

10 JUNE 2021

THE COURT ORDERS THAT:

1. The husband pay the party/party costs and disbursements of the wife, of and incidental to the Initiating Application filed on 16 December 2020, including the costs of preparation of the costs submissions, fixed in the sum of $2,384.23.

2. The payment referred to in order (1) hereof be made within 30 days of these orders.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The principles as to the basis on which indemnity costs should be ordered is set out by the Full Court in Worth & Worth (No. 2) [2019] FamCAFC 126, as follows: [9] The authorities are clear, that for the usual basis to be departed from, exceptional circumstances need to be demonstrated (see, eg, Limousin & Limousin (Costs) (2007) 38 FamLR 478). The categories of such circumstances are not closed (Yunghanns & Yunghanns (2000) FLC 93–029 ), but some examples are provided in the oft-quoted decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive Co”), and usefully, Holden CJ in Munday v Bowman (1997) FLC 92–784 at 84,660, drew from his Honour’s decision the following:(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.(c)Evidence of particular misconduct causing loss of time to the court and to other parties.(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.(e)An imprudent refusal of an offer to compromise.CONCLUSION I am able to infer from the husband’s email of 21 May 2021 that he opposes any order for costs, let alone indemnity costs. I do not accept that he should not pay the wife’s costs, for the reasons set out in the preceding paragraphs. The conduct of the husband is clearly unacceptable and in my view warrants an order for costs, when all of the relevant statutory considerations are addressed however, the appropriate costs remedy is to order costs on a party/party basis. I am not persuaded that the circumstances of this matter are so exceptional, as required by the authorities, that my discretion should be exercised to make an order for indemnity costs. I intend to make an order that the husband pay the party/party costs of the wife of and incidental to the husband’s Initiating Application filed 16 December 2020. QUANTUM In relation to quantum of the costs claimed, the wife’s costs submissions set out an itemised account of the work involved in accordance with the scale of costs which total $2,384.23. In the absence of any submissions by the husband in relation to quantum, I accept the itemised schedule of costs and will fix the costs in accordance with the amount claimed. If an order were made for costs to be paid as agreed or in default to be taxed, given the limited nature of the claim, it is highly likely that there would never be any agreement by the husband as to quantum and to require the wife to prepare for and attend a taxation of costs would in my view be unduly onerous. I will therefore order that the husband pay the wife’s costs fixed in the sum of $2,384.23 within 30 days of these orders.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 13970 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	10 June 2021
Catchwords:	FAMILY LAW – COSTS.
Legislation:	Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Cases cited:	Galani & Galani [2021] FamCA 229 In the Marriage of I and I (No. 2) (1995) 22 Fam LR 557 Worth & Worth (No. 2) [2019] FamCAFC 126
Number of paragraphs:	31
Date of last submission/s:	21 May 2021
Date of hearing:	13 April 2021
Place:	Melbourne
The Applicant:	No Appearance
Solicitor for the Respondent:	Ms Carson
Solicitor for the Respondent:	Kennedy Guy

MLC 13970 of 2020
BETWEEN:	MR GALANI Applicant
AND:	MS GALANI Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	10 JUNE 2021