Jalal & Malki - [2021] FedCFamC1F 260

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jalal & Malki [2021] FedCFamC1F 260

File number(s): BRC 2053 of 2016

Judgment of: HOGAN J

Date of judgment: 7 December 2021

Catchwords: FAMILY LAW – COSTS – Whether the applicant ought pay the respondent’s costs on an indemnity basis – Whether offers made by the respondent were in terms more favourable to the applicant than those ultimately ordered – Where the cash sum received by the applicant received was less than the quantum it was thought she would receive – Whether the applicant’s conduct in the proceedings justifies making a costs order against her – Where the applicant was self-represented.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited: Jalal & Malki [2021] FamCA 637

Number of paragraphs: 21

Date of last submission/s: 15 September 2021

Date of hearing: Determined in Chambers following the receipt of written submissions

Place: Brisbane

Counsel for the Applicant: Self-represented

Counsel for the Respondent: Mr MacDonald

Solicitor for the Respondent: Stuart Percy & Associates
ORDERS

BRC 2053 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MALKI

Applicant

AND:
MR JALAL

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

7 DECEMBER 2021

THE COURT ORDERS THAT:
1.Mr Jalal’s application for an order that Ms Malki pay his costs of and incidental to the proceedings on either an indemnity or a party/party basis is dismissed.
2.Each party shall bear their own costs of and incidental to the application for costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jalal & Malki has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:

On 27 August 2021, orders were made to finalise the property settlement proceedings between the parties.
By way of broad summary, those orders provided for:
(a)Ms Malki to receive a cash payment of about $110,000.00 (inclusive of $20,000.00 already payable to her by virtue of an earlier order) and retain her entitlement to superannuation (in an amount of about $338,430.00), chattels (having a value of about $1,450.00) and property (being vacant land in Country Q valued at $19,840.00); and
(b)Mr Jalal to receive a cash payment of $220,000.00 (inclusive of $20,000.00 already payable to him by virtue of an earlier order) and retain his entitlement to superannuation…

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 Jalal & Malki

Details

AGLC: Jalal & Malki [2021] FedCFamC1F 260
Case: [2021] FedCFamC1F 260
Decision Date

CaseChat Overview and Summary

The case of Jalal & Malki involved a dispute between the parties regarding costs following the finalisation of property settlement proceedings. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining whether the applicant, Ms Malki, should pay the respondent's costs on an indemnity basis or if the respondent's offers to resolve the proceedings were more favourable to the applicant than the final orders. Additionally, the court had to consider whether the applicant's conduct justified an order for costs against her.

The court found that the implementation of the August 2021 orders resulted in Mr Jalal receiving all of the $220,000.00 he was ordered to receive, while Ms Malki received only about $61,000.00 of the $110,000.00 she was to receive. The court concluded that the circumstances did not justify making an order that Ms Malki pay Mr Jalal's costs of and incidental to the proceedings. Furthermore, even if the circumstances did justify such an order, the court was not persuaded that an order for costs on an indemnity or party/party basis was just.

In light of the court's findings, the Federal Circuit and Family Court of Australia (Division 1) dismissed Mr Jalal's application for an order that Ms Malki pay his costs of and incidental to the proceedings on either an indemnity or a party/party basis. Instead, the court ordered that each party shall bear their own costs of and incidental to the application for costs.

Orders