Hinde and Hinde and Anor

[2009] FamCA 1196

FAMILY COURT OF AUSTRALIA

HINDE & HINDE AND ANOR [2009] FamCA 1196

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment under the slip-rule – Where orders do not reflect the views expressed in the judgment – No appearance by the Husband – Application acceded to

Family Law Rules 2004 (Cth), rule 17.02

APPLICANT: Ms Hinde

FIRST RESPONDENT: Mr Hinde

SECOND RESPONDENT: Mr Fray

FILE NUMBER: BRC 5920 of 2008

DATE DELIVERED: 3 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 3 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grimshaw of Counsel appeared for the Applicant Wife

SOLICITORS FOR THE APPLICANT: Hogan Stanton Lawyers

COUNSEL FOR THE FIRST

RESPONDENT:

There was no appearance by the First Respondent

SOLICITORS FOR THE SECOND

RESPONDENT:

There was no appearance by the Second Respondent

Orders

IT IS ORDERED THAT:

1. Pursuant to rule 17.02 paragraph 1 of the Order of Justice Carmody made 26 June 2008 be amended such that it reads as follows:

   “Within sixty (60) days of the date of this Order the Husband pay the Wife’s costs of and incidental to the final hearing on an indemnity basis and the Second Respondent’s costs of and incidental to the final hearing to be agreed within fourteen (14) days, or otherwise taxed.”

IT IS NOTED that publication of this judgment under the pseudonym Hinde v Hinde and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5920 of 2008

MS HINDE

Applicant

And

MR HINDE

First Respondent

And

MR FRAY

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter that had a lengthy litigation history complicated by a number of factors.  I do not have to determine, at this point in time, whether an order for indemnity costs should or should not have been made.  The application is made under the slip rule.  The application is to rectify the order made by Carmody J, as he then was, on 26 June 2008 in terms expressed that the husband’s liability to pay costs be on an indemnity basis.  As the order currently reads:

   “Within 60 days of the date of this order the husband pay the wife’s costs of and incidental to final hearing, to be agreed within 14 days or otherwise taxed.”

2. The application seeks that that be amended to read:

   “Within 60 days of the date of this order the husband pay the wife’s costs of and incidental to the final hearing on an indemnity basis, and the second respondent’s costs of and incidental to the final hearing to be agreed within 14 days or otherwise taxed.”

   I am satisfied from the reference in the judgment that his Honour clearly intended that to be the case.  He referred to well known authorities on the issue of indemnity costs.  He referred to the submissions that had been made to justify an order for indemnity costs.  His Honour said, “I agree” in answer to the summarised proposition. 

3. There is ample evidence to establish that the husband has, at all material times, acted in a manner to deprive the wife of any property entitlements.  Accordingly, I will accede to the application and I will rule that, pursuant to rule 17.02 paragraph 1 of the order of Carmody J of 26 June 2008 be amended such that it reads:

   “Within 60 days of the date of this order the husband pay the wife’s costs of and incidental to the final hearing on an indemnity basis and the second respondent’s costs of and incidental to the final hearing to be agreed within 14 days, or otherwise taxed.”

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  3 December 2009