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