Jensen and Jensen - [2015] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

JENSEN & JENSEN

[2015] FCCA 2721

Catchwords:
FAMILY LAW – Costs – indemnity costs – statutory right – right pursuant to costs agreement.

Legislation:

Family Law Act 1975, s.79
Personal Property Securities Act 2009, ss.18(5), 151

Applicant:

MS JENSEN

Respondent:

MR JENSEN

Third Party:

MS HOLLAND

(Trading as (omitted))

File Number:

BRC 11746 of 2011

Judgment of:

Judge Cassidy

Hearing date:

10 August 2015

Date of Last Submission:

10 August 2015

Delivered at:

Brisbane

Delivered on:

8 October 2015

REPRESENTATION

Counsel for the Applicant:

Mr Fisher

Solicitors for the Applicant:

(direct brief)

The Respondent’s appearance having been excused.

Solicitors for the Third Party:

Thomson Greer

ORDERS

That the respondent pay the third party’s costs on an indemnity basis of:
(a)Their costs;
(b)Costs incurred from Thomson Geer;
(c)Costs of the lodging of the caveat and relevant security interests;
(d)Costs of and incidental to the application in a case filed on 23 July 2015; and
(e)Costs of any releases and discharges under the order of 24 July 2015
to be agreed or otherwise to be assessed.
That within fourteen days of the date of this order, the applicant wife file and serve written submissions in relation to any costs sought.
That the respondent husband file and serve any written submission in response, within a further fourteen days.
That this matter be listed for judgment at 9.30am on 25 November 2015 in the Federal Circuit Court of Australia at Brisbane.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11746 of 2011

MS JENSEN

Applicant

And

MR JENSEN

Respondent

MS HOLLAND

(Trading as (omitted))

Third Party

REASONS FOR JUDGMENT

Introduction

This is an application by the third party for an indemnity costs order. The third party is Ms Holland trading as (omitted). (omitted) were the respondent husband’s former solicitors.

The Material

The husband relied upon the following material:
a)The husband’s affidavit filed on 7 August 2015;
b)The husband’s affidavit filed by leave on 10 August 2015; and
c)The husband’s submissions filed by leave on 10 August 2015.
The third party relied upon the following material:
a)The application in a case filed by the third party on 23 July 2015;
b)The affidavit of Ms H filed on 23 July 2015;
c)The affidavit of Ms H filed on 23 July 2015;
d)The written submissions of the third party filed on 28 July 2015;
e)The affidavit of Ms H filed on 30 July 2015;
f)The affidavit of Ms H filed on 7 August 2015; and
g)The affidavit of Ms H filed by leave on 10 August 2015.

Background

The proceedings in this matter related to an application for an adjustment of property rights under s.79 of the Family Law Act 1975 (Cth) (as amended) (“the Act”) (FLA). The parties to the principal proceedings were the applicant wife, Ms Jensen and the respondent husband, Mr…

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 Jensen and Jensen

Details

AGLC: Jensen and Jensen [2015] FCCA 2721
Case: [2015] FCCA 2721
Decision Date: 8 October 2015

CaseChat Overview and Summary

In the matter of *Jensen and Jensen*, heard in the Federal Circuit Court of Australia at Brisbane before Judge Cassidy, the dispute concerned the costs associated with proceedings filed on 23 July 2015 and related to an order made on 24 July 2015. The orders indicate a respondent husband and an applicant wife, with a third party also involved in the cost considerations.

The primary legal issue before the court was the determination of costs payable by the respondent to the third party. Specifically, the court was required to decide whether these costs should be awarded on an ordinary or indemnity basis, and to identify the specific categories of costs to be included in such an award. The court also needed to establish a process for the quantification of these costs, including the lodging of submissions by the parties.

Judge Cassidy ordered that the respondent pay the third party's costs on an indemnity basis. This comprehensive award encompassed the third party's general costs, costs incurred through Thomson Geer, expenses related to the lodging of a caveat and relevant security interests, costs associated with the application filed on 23 July 2015, and costs pertaining to any releases and discharges ordered on 24 July 2015. The court directed that these costs be either agreed between the parties or assessed. To facilitate the assessment, the applicant wife was required to file written submissions regarding any costs she sought within fourteen days, with the respondent husband to file any responsive submissions within a further fourteen days. The matter was then listed for judgment on 25 November 2015.

Orders

Orders of the court

That the respondent pay the third party’s costs on an indemnity basis of:

(a) Their costs;

(b) Costs incurred from Thomson Geer;

(d) Costs of and incidental to the application in a case filed on 23 July 2015; and

(e) Costs of any releases and discharges under the order of 24 July 2015

to be agreed or otherwise to be assessed.

That within fourteen days of the date of this order, the applicant wife file and serve written submissions in relation to any costs sought.

That the respondent husband file and serve any written submission in response, within a further fourteen days.

That this matter be listed for judgment at 9.30am on 25 November 2015 in the Federal Circuit Court of Australia at Brisbane.

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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