FAMILY COURT OF AUSTRALIA
| JETER & JETER | [2019] FamCA 61 |
| FAMILY LAW – COSTS – Costs arising from property application – Consideration of applicable principles – Where no circumstances justifying departure from the general rule that each party pay their own costs – Where application for costs dismissed. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.08. 19.18 |
| Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Brown and Green [2002] FamCA 791 Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536 Collins & Collins (1985) FLC 91-603 D & D (Costs) (No. 2) [2010] FamCAFC 64 Fennessy & Gregorian [2009] FamCAFC 44 Greedy & Greedy (1982) FLC 91-250 Harris & Dewell & Harris (Costs) [2018] FamCAFC 180 Hawkins & Roe [2012] FamCAFC 77 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Jeter & Jeter [2018] FamCa 938 Joyce & Fante [2013] FamCAFC 141 Lenova & Lenova (Costs) [2011] FamCAFC 141 Limousin & Limousin [2007] FamCA 1178 Luadaka & Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 |
| APPLICANT: | Mr Jeter |
| RESPONDENT: | Ms Jeter |
| FILE NUMBER: | PAC | 6007 | of | 2016 |
| DATE DELIVERED: | 14 February 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received on 21 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE APPLICANT: | Michael Vassili Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: | Warren & Warren Solicitors |
Orders
That the husband’s application for costs is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeter & Jeter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6007 of 2016
| Mr Jeter |
Applicant
And
| Ms Jeter |
Respondent
REASONS FOR JUDGMENT
The application for determination is the husband’s application for costs arising out of property orders made on 16 November 2018: Jeter & Jeter [2018] FamCA 938.
The orders as to property adjustment were as follows:
(1)That within three months from the date of these orders the wife pay to the husband the sum of $540,000.00.
(2)In consideration of such payment the husband do all things necessary to transfer to the wife his interest in the home at B Street, Suburb C, NSW being the land comprised in Folio…
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- AGLC
- Jeter and Jeter [2019] FamCA 61
- Case
- [2019] FamCA 61
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant the husband's application for costs on an indemnity basis, and if so, from what date. This involved considering the court's discretion to award costs on an indemnity basis, which aims to fully or substantially reimburse a party for their legal expenses, and the circumstances that would justify such a departure from the usual party-and-party costs order.
Foster J dismissed the husband's application for costs. The court referred to the Full Court's observations in *Brown and Green* [2002] FamCA 791, which emphasised the importance of giving proper consideration to written offers of settlement. The insertion of s 117C into the legislation was noted as a clear indication of Parliament's intent to encourage parties to avoid unnecessary litigation by proposing settlement terms. The failure to heed a reasonable offer, where there was adequate knowledge to properly consider it, was identified as a circumstance that would normally justify an order for costs in favour of the party making the offer. However, the court ultimately found that the circumstances did not warrant departing from the usual course of making party-and-party costs orders, and therefore, the husband's application for indemnity costs was dismissed.
Orders
Orders of the court
1.
That the husband’s application for costs is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
Earlier in Brown and Green [2002] FamCA 791 the Full Court said; 57.We think that whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given. It is clearly a circumstance that would justify the making of an order for costs in favour of the husband. The husband seeks an order for costs against the wife on an indemnity basis in the sum of $97,572.82 or in the alternative that the wife pay the husband’s costs from the date of her filing her Response to the husband’s Initiating Application as agreed or assessed and on an indemnity basis from 5 October 2018 being the date of the husband’s offer being only a week or so out from trial. It is usual for the Court to make an order for costs on a party/party basis if an order for costs is made at all. Rule 19.18(3) further provides that:(3) In making an order under subrule (1), the court may consider:(a)the importance, complexity or difficulty of the issues;(b)the reasonableness of each party’s behaviour in the case;(c)the rates ordinarily payable to lawyers in comparable cases;(d)whether a lawyer’s conduct has been improper or unreasonable;(e)the time properly spent on the case, or in complying with pre-action procedures; and(f)expenses properly paid or payable. The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings. The category of cases in which an award of an indemnity costs order may be appropriate are not closed and the Full Court of the Family Court observed in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at [31]: 24.… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such order is sought. … More recently, the Full Court has considered indemnity costs in Joyce & Fante [2013] FamCAFC 141, Limousin & Limousin [2007] FamCA 1178, Fennessy & Gregorian [2009] FamCAFC 44 and D & D (Costs) (No. 2) [2010] FamCAFC 64. Otherwise, the principles underlying an award for indemnity costs have been classically summarised by Sheppard J in Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536 where his Honour, in summary, said at [24]:1. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on a party and party basis. …2. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. …3. In consequence of the settled practice which exists, the Court ought not usually make an order for payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. …