Giunta and Giunta (No. 4)

Case [2021] FamCA 554


Family Court of Australia

Giunta & Giunta (No. 4) [2021] FamCA 554

File number(s):

SYC 3842 of 2018

Judgment of:

MCCLELLAND DCJ

Date of judgment:

29 July 2021

Catchwords:

FAMILY LAW – COSTS – Where the wife seeks the husband pay her costs of the substantive proceedings for parenting and property orders on an indemnity basis – Where conduct of the husband in the proceedings is a relevant consideration – Where a genuine dispute existed in respect to the parenting aspect of the proceedings – Where the formal written offer of settlement from the wife justifies making of orders for costs in respect to the property dispute – Consideration of calculation of costs – Where conduct of the husband does not justify orders for costs on an indemnity basis – Where no evidence of the nature of work for which the wife has incurred legal costs – Where parenting and property aspects of the proceedings were intertwined – Where the Court is unable to determine fair and reasonable estimate of costs relating to property dispute – Order made for the husband to pay 50 per cent of costs on party/party basis incurred by the wife from date of settlement offer as agreed or assessed.

Legislation:

Family Law Act 1975 (Cth) ss 114, 117, 117C

Family Law Rules 2004 (Cth) rr 1.04, 1.08, 19.18, Sch 1 Pt 1

Federal Circuit Court Rules 2001 (Cth) r 1.03

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Family Court of Australia and Federal Circuit Court of Australia, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters, 28 January 2020

Cases cited:

Byrnes v Brisconnections Management Company Limited (No. 2) [2009] FCA 1432

Cabasso & Cabasso [2007] FamCA 511

Camm v Linke Nominees Pty Ltd (No. 4) [2013] FCA 223

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123

Giunta & Giunta (No. 3) [2021] FamCA 272

I and I (No 2) (1995) FLC 92-625

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Kennon v Kennon (1997) FLC 92-757

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664

Modra v Victoria (2012) 205 FCR 445

Parke & The Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Pierson & Romilly (2020) FLC 93–959

Ryan v Primesafe (2015) 323 ALR 107

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No. 4) (2012) ATPR 42–403

Specsavers Pty Ltd v The Optical Superstore Pty Ltd (2012) 208 FCR 78

Stoian & Fiening (Costs) [2014] FamCA 944

Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282

Warbrick & Warbrick (No. 2) (2021) FLC 94-030

Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362

Number of paragraphs:

73

Date of hearing:

26 July 2021

Place:

Sydney by web conference

Counsel for the…

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Giunta and Giunta (No. 4) [2021] FamCA 554
Case
[2021] FamCA 554
Decision Date

CaseChat Overview and Summary

In the matter of Giunta and Giunta (No. 4), the wife sought orders that the husband pay her costs of the substantive proceedings for parenting and property orders on an indemnity basis. The court was required to consider the conduct of the husband in the proceedings and the wife's formal written offer of settlement in determining the appropriate cost orders.

The legal issues before the court were whether the husband's conduct warranted costs being awarded on an indemnity basis, and how to assess and apportion costs given the intertwined nature of the parenting and property aspects of the proceedings, particularly in light of the wife's settlement offer. The court also considered the wife's applications filed on 7 June 2021 and 14 July 2021.

McClelland DCJ found that while a genuine dispute existed regarding the parenting aspect, the husband's conduct did not justify an indemnity order for costs. However, the wife's formal written offer of settlement was considered a significant factor justifying cost orders in respect to the property dispute. Due to the lack of evidence detailing the nature of the work for which the wife had incurred legal costs and the intertwined nature of the parenting and property proceedings, the court was unable to make a fair and reasonable estimate of costs relating solely to the property dispute. Consequently, the court ordered the husband to pay 50 per cent of the wife's costs, assessed on a party/party basis, incurred from the date of the settlement offer, being 14 November 2019. The wife's application filed on 14 July 2021 was dismissed, with no orders as to costs for that application or the application filed on 7 June 2021.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Mr Giunta (“the Husband”) pay 50 per cent of the costs incurred by Ms Giunta (“the Wife”), assessed on a party/party basis, in respect to the period subsequent to 14 November 2019, in relation to the Initiating Application filed by the Husband on 18 June 2018.

2. The amount payable, pursuant to Order 1, is to be paid within 28 days of those costs being agreed or assessed.

3. The Application in a Case filed 14 July 2021 by the Wife is dismissed.

4. There be no orders as to costs in relation to the Wife’s Application in a Case filed 7 June 2021 and the Application in a Case filed 14 July 2021.

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 Giunta & Giunta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

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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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