Hackett and York & Anor

Case [2020] FamCA 939


FAMILY COURT OF AUSTRALIA

HACKETT & YORK AND ANOR [2020] FamCA 939
FAMILY LAW – COSTS – Between parties – where de-facto wife and third party seek a costs order in their favour as against the de-facto husband – where the de-facto husband has been wholly unsuccessful on two occasions to have a subpoena issued to the third party – order for indemnity costs made in favour of third party to be paid by de facto husband – order for fixed costs made in favour of the de-facto wife to be paid by the de facto husband
Family Law Act 1975 (Cth) s 117(2), s 117(2A)
Family Law Rules 2004 r 15.23
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) [1993] FCA 70
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Nada & Nettle (Costs) (2014) FLC 93-612
Penfold v Penfold (1980) 144 CLR 311
Phillips & Hansford [2020] FamCAFC 28
Prantage & Prantage (2013) FLC 93
Rankin & Rankin (No. 3) [2019] FamCAFC 133
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172
Worth & Worth (No. 2) [2019] FamCAFC 126
APPLICANT: Mr Hackett
FIRST RESPONDENT: Ms York
SECOND RESPONDENT: Ms Tate
FILE NUMBER: SYC 3560 of 2018
DATE DELIVERED: 13 October 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Henderson J
HEARING DATE: 7 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Breeze
SOLICITOR FOR THE APPLICANT: B Hayward & Co
COUNSEL FOR THE FIRST RESPONDENT Mr Schonell
SOLICITOR FOR THE FIRST RESPONDENT: Horton Rhodes Legal
COUNSEL FOR THE SUBPOENAED PARTY Ms Reid
SOLICITOR FOR THE SUBPOENAED PARTY Barry Nilsson Lawyers

IT IS ORDERED THAT

  1. The husband pay the costs of B Pty Ltd on an indemnity basis in relation to the subpoena hearing with Registrar Hayward, the Review and the costs hearing in the sum of $27,215.11 with such sum to be paid within 12 months of the date of these Orders.

  2. The costs incurred by B Pty Ltd in complying with the subpoena of $6,152.30 are to be paid within 28 days.

  3. The monies standing in the husband’s solicitor’s bank account of $3,630 are to be transferred to the trust account of the solicitors acting for B Pty Ltd forthwith in reduction of the costs in Order 2 herein.

  4. The husband is to pay the costs of the wife in the sum of $20,000 with such sum to be deducted from his share of the final property settlement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hackett & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject…

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Hackett and York & Anor [2020] FamCA 939
Case
[2020] FamCA 939
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Henderson J considered an application for costs made by a de facto wife and a third party against the de facto husband. The dispute arose from the de facto husband's unsuccessful attempts on two separate occasions to have a subpoena issued to the third party.

The primary legal issue before the court was whether to grant a costs order in favour of the de facto wife and the third party, and on what basis. Specifically, the court had to determine the appropriate quantum and terms of any costs awarded against the de facto husband, considering his repeated failures in seeking the subpoena.

Henderson J ordered that the de facto husband pay the costs of the third party, B Pty Ltd, on an indemnity basis in relation to the subpoena hearing, a subsequent review, and the costs hearing itself, totalling $27,215.11. These costs were to be paid within 12 months. Additionally, the costs incurred by B Pty Ltd in complying with the subpoena, amounting to $6,152.30, were to be paid within 28 days. A sum of $3,630 held in the husband's solicitor's bank account was to be transferred to B Pty Ltd's solicitors to reduce these compliance costs. The husband was also ordered to pay the wife's costs in the sum of $20,000, to be deducted from his share of the property settlement.

Orders

Orders of the court

IT IS ORDERED THAT

1. The husband pay the costs of B Pty Ltd on an indemnity basis in relation to the subpoena hearing with Registrar Hayward, the Review and the costs hearing in the sum of $27,215.11 with such sum to be paid within 12 months of the date of these Orders.

2. The costs incurred by B Pty Ltd in complying with the subpoena of $6,152.30 are to be paid within 28 days.

3. The monies standing in the husband’s solicitor’s bank account of $3,630 are to be transferred to the trust account of the solicitors acting for B Pty Ltd forthwith in reduction of the costs in Order 2 herein.

4. The husband is to pay the costs of the wife in the sum of $20,000 with such sum to be deducted from his share of the final property settlement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hackett & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 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

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Ratio Decidendi

Legal Principle Established

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