FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARB & HARB | [2020] FCCA 3544 |
| Catchwords: FAMILY LAW – Costs – costs arising out of an arbitration – costs sought on indemnity basis – Court’s jurisdiction to award costs where matter has been referred to arbitration – power of arbitrator to award costs – power of arbitrator to issue s. 128 certificate – treatment of addbacks by reference to section 75(2)(o) – valuation of a business – negligent and deficient approach towards disclosure – non-compliance by one party with duty of disclosure – engagement in chicanery to hide non-disclosure – where party’s non-disclosure hampers ability of the other to conduct litigation and resolve case – obfuscation by one party – where husband effectively controls all income and assets of relationship – where proceedings necessitated by failure of a party to comply with prior Orders – justice and equity between the parties – whether a party has been wholly unsuccessful. |
| Legislation: Family Law Act 1975 (Cth), Pt VII; VIII; XV; ss 10L; 13E; 13F; 13G; 75; 117 Family Law Regulations 1984 (Cth), reg 67Q Evidence Act 1995 (Cth), s 128 Federal Circuit Court Rules 2001 (Cth), Div 1; Sch 1 |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 Other sources: |
| Applicant: | MS HARB |
| Respondent: | MR HARB |
| File Number: | PAC 947 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 6 May 2020 |
| Date of Last Submission: | 6 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 6 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Parks |
| Solicitors for the Applicant: | York Law Family Law Specialists |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Sharah & Associates Solicitors and Conveyancers |
ORDERS
The Husband shall pay to the Wife, as a contribution to the Wife’s costs incurred in these proceedings and on a party-party basis, $139,789.85.
The above sum shall be paid by the Husband to the Wife within 28 days, failing which:
(a)Interest shall then accrue upon that sum at…
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- HARB & HARB [2020] FCCA 3544
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- [2020] FCCA 3544
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CaseChat Overview and Summary
The primary legal issues before the court were whether it possessed the jurisdiction to award costs in circumstances where the matter had been referred to arbitration, the extent of an arbitrator's power to award costs and issue a section 128 certificate, and how to treat certain "addbacks" in light of section 75(2)(o) of the *Family Law Act 1975* (Cth). The court also had to determine whether the husband's conduct, including a negligent approach to business valuation, deficient disclosure, and "chicanery" to hide non-disclosure, warranted an award of costs on an indemnity basis, or at least a significant contribution on a party-party basis, considering the justice and equity between the parties and whether the husband had been wholly unsuccessful.
Judge Harman reasoned that while an arbitrator may have the power to award costs, the court retained jurisdiction to make orders concerning costs, particularly where the arbitration was part of a broader litigation process. The court found that the husband's conduct, including his obfuscation and failure to comply with prior orders, had necessitated the proceedings and prejudiced the wife's ability to conduct her case. Applying principles of justice and equity, and considering the husband's effective control over the parties' income and assets, the court determined that a substantial contribution to the wife's costs was warranted.
Consequently, the court ordered that the Husband pay to the Wife, as a contribution to her costs incurred in the proceedings on a party-party basis, the sum of $139,789.85. This sum was to be paid within 28 days, with interest to accrue thereafter at the rate prescribed by the Federal Circuit Court Rules. The court further ordered that this sum would be a charge upon the Husband's interest in specified company shares and a real estate property, to be discharged upon full payment.
Orders
Orders of the court
1.
The Husband shall pay to the Wife, as a contribution to the Wife’s costs incurred in these proceedings and on a party-party basis, $139,789.85.
2.
The above sum shall be paid by the Husband to the Wife within 28 days, failing which:
(a) Interest shall then accrue upon that sum at the rate described from time to time by Federal Circuit Court Rules; and
(b) The Wife shall then be entitled to commence proceedings for enforcement of payment of that sum, interest and costs of enforcement in a Court with competent jurisdiction.
3.
The above sum shall be a charge upon the Husband’s interest in any shares held in the company, B Pty Ltd, C Pty Ltd and the real estate property of the parties at Suburb A (owned jointly by the Wife), such charge to be discharged upon payment by the Husband to the Wife of the required sum (being the Order for costs together with any interest accrued thereupon).
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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