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Henricksen and Janz (No.2)

Henricksen and Janz (No.2)

Case [2008] FMCAfam 1081 3 October 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HENRICKSEN & JANZ (No.2)

[2008] FMCAfam 1081

FAMILY LAW – Costs – application for indemnity costs – principles discussed.

Family Law Act 1975, ss.79A, 117
Federal Magistrates CourtRules rr.13.01, 13.02, 21.02, 21.11
Family Law Rules 19.08, 19.19

Janz & Janz [2007] FMCAfam 876
Henricksen & Janz [2008] FMCAfam 866
Penfold v Penfold (1980) 144 CLR 311
I and I (No 2) (1995) FLC 92-625
McDonald and McDonald (1994) FLC 92-508
Kohan and Kohan (1993) FLC 92-340
Yunghanns v Yunghanns (2000) FLC 93-029
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

MS HENRICKSEN

Respondent:

MR JANZ

File Number:

BRC 2587 of 2007

Judgment of:

Wilson FM

Hearing date:

25 September 2008

Date of Last Submission:

25 September 2008

Delivered at:

Brisbane

Delivered on:

3 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Hackett

Solicitors for the Applicant:

Hirst & Co

Counsel for the Respondent:

Mr Selfridge

Solicitors for the Respondent:

Mylne Lawyers

ORDERS

The husband has leave to discontinue the application filed 1 September 2008, and the amended response filed 17 July 2007 in so far as it sought orders pursuant to s.79A Family Law Act1975;
The husband pay the wife’s costs of and incidental to:
(a)The wife’s application filed 8 March 2007;
(b)The wife’s amended application filed 23 April 2007;
(c)The appearances before the court on 26 April, 2007and 29 May 2007;
(d)the husband’s application for the orders sought at paragraphs 5 and 6 of the amended response filed 17 July 2007;
(e)the husband’s application for the orders sought at paragraphs 7 and 8 of the amended response filed 17 July 2007;
(f)the wife’s application filed 2 May 2008;
(g)the husband’s application filed 1 September 2008;
(h)the wife’s application filed 17 September 2008.
The costs ordered to be paid by the husband in subparagraphs d, f and h hereof shall be taxed pursuant to Chapter 19 of the Family Law Rules on the party and party basis.
The costs otherwise ordered to be paid by the husband shall be taxed pursuant to Chapter 19 of the Family Law Rules on an indemnity basis.
The husband shall not be liable to pay any costs associated with the appearances before the court on 19 June 2007 and 18 July 2007.

IT IS NOTED that publication of this judgment under the pseudonym Henricksen & Janz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2587 of 2007

MS HENRICKSEN

Applicant

And

MR JANZ

Respondent

REASONS FOR JUDGMENT

This is, hopefully, the final stage of these proceedings which have, as I explained in my Reasons for Judgment given on 15 August 2008, grown like topsy. I am now asked to decide the question of costs.
By application filed 17 September 2008, the wife seeks the following orders:
(1)That the Husband pay the Wife’s costs on an indemnity basis of and incidental to the following:
(a)Wife’s application filed 8 March 2007;
(b)Wife’s…

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.

Continue reading Henricksen and Janz (No.2)

Details

AGLC: Henricksen and Janz (No.2) [2008] FMCAfam 1081
Case: [2008] FMCAfam 1081
Decision Date: 3 October 2008

CaseChat Overview and Summary

The case of Henricksen and Janz (No.2) involves the parties, a husband and wife, in a dispute over family law matters. The husband filed an application on 1 September 2008 and subsequently an amended response on 17 July 2007, seeking orders under section 79A of the Family Law Act 1975. The wife responded with applications on 8 March 2007 and 23 April 2007, followed by additional applications on 2 May 2008 and 17 September 2008. The husband also filed another application on 1 September 2008. The legal issues before the court involved the husband's requests for certain orders, the wife's applications, and the associated costs.

The court was required to determine the appropriate orders concerning the husband's applications and whether the husband should be allowed to discontinue the application. It also needed to address the costs associated with the various applications and court appearances. The court considered the merits of the husband's request to discontinue the application, the wife's applications, and the costs incurred by both parties. The court had to balance the interests of both parties and decide on the allocation of costs in line with the Family Law Rules.

The court granted the husband leave to discontinue the application filed on 1 September 2008, and the amended response filed on 17 July 2007, insofar as it sought orders under section 79A of the Family Law Act 1975. It ordered the husband to pay the wife's costs associated with various applications and court appearances, with specific costs to be taxed on a party and party basis and others on an indemnity basis. The husband was not required to pay any costs associated with certain court appearances.

The final orders include the husband's leave to discontinue the application, the specific costs to be paid by the husband, and the basis on which these costs are to be taxed. The husband is exempt from paying costs associated with two particular court appearances. This decision outlines the court's resolution of the legal issues and the financial responsibilities of the parties involved.

Orders

Orders of the court

The husband has leave to discontinue the application filed 1 September 2008, and the amended response filed 17 July 2007 in so far as it sought orders pursuant to s.79A Family Law Act 1975;

The husband pay the wife’s costs of and incidental to:

(a) The wife’s application filed 8 March 2007;

(b) The wife’s amended application filed 23 April 2007;

(d) the husband’s application for the orders sought at paragraphs 5 and 6 of the amended response filed 17 July 2007;

(e) the husband’s application for the orders sought at paragraphs 7 and 8 of the amended response filed 17 July 2007;

(f) the wife’s application filed 2 May 2008;

(g) the husband’s application filed 1 September 2008;

(h) the wife’s application filed 17 September 2008.

The costs ordered to be paid by the husband in subparagraphs d, f and h hereof shall be taxed pursuant to Chapter 19 of the Family Law Rules on the party and party basis.

The costs otherwise ordered to be paid by the husband shall be taxed pursuant to Chapter 19 of the Family Law Rules on an indemnity basis.

The husband shall not be liable to pay any costs associated with the appearances before the court on 19 June 2007 and 18 July 2007.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Henricksen and Janz (No.2) [2008] FMCAfam 1081

Most Recent Citation

Henricksen & Janz (No.3) [2008] FMCAfam 1343

Cases citing this decision · 1 of 1 shown

Henricksen & Janz (No.3)
[2008] FMCAfam 1343 Para 20

…In Henricksen & Janz (No.2) [2008] FMCAfam 1081 I discussed the principles attendant on the awarding of costs in general and indemnity costs in particular. I have had regard to the matters in s.117(2A) of the Act, particularly that the father has been wholly unsuccessful in his application, and in his resistance to th…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Preston v Preston
[2011] FamCA 618 Para 14

…At paragraph [24] in Colgate-Palmolive Sheppard J said: “24. It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, i.e. litigation as between parties at arm’s length. Different consi…
HENRICKSEN & JANZ
[2008] FMCAfam 866 Para 17

…he presiding judge. That occurred on 6 August 2008. I delivered my Reasons for Judgment on the preliminary issue on 15 August 2008: Henricksen & Janz [2008] FMCAfam 866. The husband’s application for parenting orders was dismissed.…
Janz and Janz
[2007] FMCAfam 876 Para 16

…application to re-agitate the consent parenting orders. That application, heard on 18 September 2007 was dismissed on 26 October 2007: Janz & Janz [2007] FMCAfam 876. I decided however that the question of whether the court should re-examine the earlier parenting orders be determined as a preliminary issue.…
Bartlem Pty Ltd v CMMC Pty Ltd (Receiver and Manager Appointed)
[2001] FCA 1352 Para 14

…gata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1978) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity…
Yunghanns v Yunghanns
[2000] FamCA 681 Para 12

…and party and the circumstances justifying the departure should be of an exceptional kind” (citing Kohan and Kohan (1993) FLC 92-340 at p 79,614; Yunghanns v Yunghanns (2000) FLC 93-029 at pp 87,470-1).…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 13

…The authority most often cited on an application for indemnity costs is that of Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. Of course in that case the court was dealing with a forum in which the ordinary rule as to costs applied, namely that the successful party recovered their costs on a party and party basis. That is to be dist…
Penfold v Penfold
[1980] HCA 4 Para 21

…The interrelationship of ss.117(1) and (2) was considered by the High Court of Australia in Penfold v Penfold (1980) 144 CLR 311. There the majority justices in a joint judgment construed s.117(1) as being subject to s.117(2) and that the former must yield to the latter whenever a judge finds in a particular case tha…
Thors v Weekes
[1989] FCA 795 Para 14

…lse and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were com…
Maitland Hospital v Fisher
268 ALR 1 Para 14

…At paragraph [24] in Colgate-Palmolive Sheppard J said: “24. It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred: 1. The problem arises in adversary litigation, i.e. litigation as between parties at arm’s length. Different consi…
Messiter v Hutchinson
(1987) 10 NSWLR 525 Para 14

…ation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1978) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
117, 79A 3 mentions (from Para 1)