Haseloff and Kormann and Ors - [2014] FamCA 570

FAMILY COURT OF AUSTRALIA

HASELOFF & KORMANN AND ORS

[2014] FamCA 570

FAMILY LAW – COSTS – application for costs by the wife against husband and second and third respondents – whether circumstances justify order – consideration of s 117(2A) factors – where neither party was wholly successful – where husband failed to disclose material – previous finding that the husband had entered into transactions with the intention of defeating an order of this Court - the husband to pay two thirds of the wife’s costs on a party/party basis – no order for costs against the second and third respondents.

Family Law Act 1975 (Cth) s 117(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) r 13.14, 19.18, 19.19

Haseloff & Kormann and Ors [2013] FamCA 1019
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800

APPLICANT:

Ms Haseloff

RESPONDENT:

Mr Kormann

SECOND AND THIRD RESPONDENTS:

Mr Kormann Snr and Kormann Nominees Pty Ltd

FILE NUMBER:

ADC

4563

2010

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

19 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT:

Mr Scragg

SOLICITOR FOR THE RESPONDENT:

Peter Scragg & Co

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:

Mr Jordan

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Jordan & Fowler

Orders

Subject to subparagraph (2) hereof the husband do pay two-thirds of the wife’s costs of and incidental to the proceedings on a party and party basis.
The costs of any joint valuations are to be borne equally by the husband and wife.
For the purposes of paragraph (1) hereof the sum payable is to be determined by agreement between the husband and wife and in default of agreement within twenty-one [21] days from today as assessed by a Registrar under the Family Law Rules 2004 (Cth).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4563 of 2010

Ms Haseloff

Applicant

And

Mr Kormann

Respondent
And
Mr Kormann Snr and Kormann Nominees Pty Ltd
Second and Third Respondents

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Haseloff (“the wife”) seeking an order for costs against Mr Kormann (“the husband”), Mr Kormann Snr (“the second respondent”) and Kormann Nominees Pty Ltd (“the third respondent”). The second respondent is the husband’s father.
The wife seeks an order for costs of and incidental to the proceedings to be taxed on a party and party basis. The husband, second respondent and third respondent all oppose the wife’s application.
The final hearing of the wife’s application for property orders pursuant to Part…

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.

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Details

Case: [2014] FamCA 570
Decision Date: 25 July 2014

CaseChat Overview and Summary

In *Haseloff and Kormann and Ors*, Dawe J of the Family Court of Australia was required to determine the appropriate orders regarding the costs of proceedings between the husband and wife. The dispute concerned the division of property and the associated costs incurred by the parties.

The primary legal issue before the court was the apportionment of costs between the husband and wife. Specifically, the court had to decide what proportion of the wife's costs the husband should be ordered to pay, and how the costs of any joint valuations should be treated.

Dawe J ordered that the husband pay two-thirds of the wife's costs of and incidental to the proceedings on a party and party basis. However, the costs of any joint valuations were to be borne equally by the husband and wife. The sum payable by the husband for the wife's costs was to be determined by agreement between the parties within twenty-one days, failing which it was to be assessed by a Registrar in accordance with the Family Law Rules 2004 (Cth).

Orders

Orders of the court

Subject to subparagraph (2) hereof the husband do pay two-thirds of the wife’s costs of and incidental to the proceedings on a party and party basis.

The costs of any joint valuations are to be borne equally by the husband and wife.

For the purposes of paragraph (1) hereof the sum payable is to be determined by agreement between the husband and wife and in default of agreement within twenty-one [21] days from today as assessed by a Registrar under the Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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