Karbines & Karbines and Anor - [2009] FamCA 284

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES AND ANOR

[2009] FamCA 284

FAMILY LAW – COSTS – husband to pay the costs of the intervenors

FAMILY LAW – COSTS – application by the wife for costs on an indemnity basis – where the conduct of the husband is a very significant factor in the proceedings – where an order for costs is justified – where the wife has incurred significant costs – whether costs should be ordered according to the scale or on an indemnity basis – whether the order for costs should run from the commencement of the proceedings or the commencement of the preparation for trial – husband to pay the wife’s costs from the commencement of the proceedings on an indemnity basis

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Tetijo Holdings Pty Ltd and Keeprite Australia Pty Ltd [1991] FCA 187
Regata Developments Pty Ltd v Westpac Banking Corporation, (unreported, Federal Court of Australia, Davies J, 5 March 1993)
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Munday v Bowman (1997) FLC 92-784
ZH & N [2005] FamCA 828

LGM & CAM (Contempt) (2008) FLC 93-355

APPLICANT:

Ms Karbines

RESPONDENT:

Mr Karbines

INTERVENOR:

Mr and Mrs Willa

FILE NUMBER:

MLF

2479

2005

DATE DELIVERED:

2 April 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

2 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A.L. Jordan

SOLICITOR FOR THE APPLICANT:

Maddens Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INTERVENORS:

Mr H. Bersee

SOLICITOR FOR THE INTERVENORS:

Herman Bersee

Orders

The husband pay the costs incurred by Mr Willa and by Mr and Mrs Willa in the proceedings before the Family Court of Australia such costs to be as agreed and failing agreement within twenty-one [21] days from today such costs to be as taxed by a Registrar of this Court (“the [Willa] costs”).
The husband pay the wife’s costs of and incidental to the proceedings before the Family Court of Australia from the date of commencement until the present time such costs to be assessed on an indemnity basis in accordance with the costs agreements entered into by the wife with her solicitors and counsel, such costs to be paid from the monies retained by the solicitors for the wife fourteen [14] days after the solicitors for the wife provide a detailed account to the husband.
Pending the ascertainment of the exact figure for the “Willa costs” the sum of THIRTY THOUSAND DOLLARS [$30,000.00] be held in the Trust Account of the wife’s solicitors on account of those costs until the taxing of the costs has been completed and to remain there until payment and that such payment for the “Willa costs” have priority over the payment of the wife’s costs.
Wife’s solicitors have leave to file an Application in a Case as to the sale of the Y Street property in G in…

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 Karbines & Karbines and Anor

Details

AGLC: Karbines & Karbines and Anor [2009] FamCA 284
Case: [2009] FamCA 284
Decision Date: 2 April 2009

CaseChat Overview and Summary

In *Karbines & Karbines and Anor*, Dawe J of the Family Court of Australia considered applications for costs. The proceedings involved a husband, a wife, and intervenors, Mr. Willa and Mr. and Mrs. Willa. The dispute centred on the husband's conduct, which was identified as a significant factor influencing the proceedings and the wife's substantial incurred costs.

The court was required to determine whether the husband should pay the costs of the intervenors and the wife. Specifically, the court had to decide whether the wife's costs should be ordered on an indemnity basis, rather than the standard scale, and whether these costs should be payable from the commencement of the proceedings or from the commencement of trial preparation.

Dawe J reasoned that the husband's conduct warranted an order for costs in favour of both the intervenors and the wife. The court ordered the husband to pay the costs of Mr. Willa and Mr. and Mrs. Willa, to be agreed or taxed. Furthermore, the husband was ordered to pay the wife's costs from the commencement of the proceedings on an indemnity basis, reflecting the significant impact of the husband's conduct and the wife's incurred expenses. A sum of $30,000 was to be held in trust for the intervenors' costs, with priority over the wife's costs.

Orders

Orders of the court

The husband pay the costs incurred by Mr Willa and by Mr and Mrs Willa in the proceedings before the Family Court of Australia such costs to be as agreed and failing agreement within twenty-one [21] days from today such costs to be as taxed by a Registrar of this Court (“the [Willa] costs”).

The husband pay the wife’s costs of and incidental to the proceedings before the Family Court of Australia from the date of commencement until the present time such costs to be assessed on an indemnity basis in accordance with the costs agreements entered into by the wife with her solicitors and counsel, such costs to be paid from the monies retained by the solicitors for the wife fourteen [14] days after the solicitors for the wife provide a detailed account to the husband.

Pending the ascertainment of the exact figure for the “Willa costs” the sum of THIRTY THOUSAND DOLLARS [$30,000.00] be held in the Trust Account of the wife’s solicitors on account of those costs until the taxing of the costs has been completed and to remain there until payment and that such payment for the “Willa costs” have priority over the payment of the wife’s costs.

Wife’s solicitors have leave to file an Application in a Case as to the sale of the Y Street property in G in the State of South Australia within thirty [30] days of today.

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.