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Kedis & Bainbridge (No 2)

Kedis & Bainbridge (No 2)

Case [2024] FedCFamC2F 587 13 May 2024

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587

File number(s): NCC 3630 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 13 May 2024

Catchwords: FAMILY LAW – Costs - should a costs order be made pertaining to substantive de facto property proceedings – on what basis and quantum - whether it was reasonable or not to accept an offer prior to determination – finding a minimal percentage difference in outcome – making a special costs order in favour of de facto wife is justified

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134

Alston & Alston [2021] FedCFamC1A 96

Bircher & Bircher [2016] FamCAFC 123

Booysen & Ferreira [2022] FedCFamC2F 1248

Brady & Brady [2012] FamCAFC 4

Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115

Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633

D & D (Costs) (No 2) [2010] FamCAFC 64

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123

Jess & Jess (No 2) [2021] FedCFamC1A 49

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45

Lawson & Glenning [2021] FedCFamC2F 118; (2021) 64 Fam LR 414

Lombardi & Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664

Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612

Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800

Pennisi & Pennisi [1997] FamCA 39; (1997) 22 Fam LR 249

Prantage & Prantage (Costs) [2014] FamCA 850

Robinson & Higginbotham [1991] FamCA 5; (1991) 14 Fam LR 559; (1991) FLC 92-209

Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419

Division: Division 2 Family Law

Number of paragraphs: 72

Date of last submission/s: 2 May 2024

Date of hearing: Heard in chambers on the papers

Place: Newcastle

Solicitor for the Applicant: Tonkin Drysdale Partners

Solicitor for the Respondent: Kilpatrick Hatton Solicitors
ORDERS

NCC 3630 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KEDIS

Applicant

AND:
MR BAINBRIDGE

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Div 1 Rules’), as may be applicable, the parties are relieved from the effects of r 8.15(3)(e) of the Div 1 Rules so as…

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 Kedis & Bainbridge (No 2)

Details

AGLC: Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587
Case: [2024] FedCFamC2F 587
Decision Date: 13 May 2024

CaseChat Overview and Summary

The case of Kedis & Bainbridge (No 2) involved a de facto relationship between the parties, with the applicant, Ms Kedis, seeking costs from the respondent, Mr Bainbridge, in relation to substantive property proceedings. The Federal Circuit and Family Court of Australia (Division 2) was tasked with determining whether a costs order should be made, on what basis, and the quantum of such an order. Additionally, the court had to consider whether it was reasonable for Ms Kedis to have accepted an offer prior to the determination of the proceedings and the justification for any special costs order.

The primary legal issues before the court were whether it was appropriate to make a costs order in favour of Ms Kedis, given that she had accepted a settlement offer that was minimally different from the outcome of the proceedings. The court had to weigh the factors outlined in section 90AB of the Family Law Act 1975 (Cth), which provides a framework for assessing costs in family law matters, including the conduct of the parties, the outcome of the proceedings, and the financial resources of the parties. The court also had to determine whether the acceptance of the offer was reasonable and justified in the context of the proceedings.

Judge Kearney found that the acceptance of the offer by Ms Kedis was reasonable, given the minimal difference in the outcome compared to the proceedings. The court considered the financial resources of both parties and the conduct of Ms Kedis in pursuing the proceedings. Given the circumstances, the court found that it was appropriate to make a special costs order in favour of Ms Kedis. The court fixed the costs at $31,000, reflecting the reasonable steps taken by Ms Kedis in the proceedings.

The court dismissed all outstanding interlocutory applications and noted that an enforcement application filed by Mr Bainbridge remained listed for a procedural hearing. The court's decision provided clarity on the circumstances under which a costs order may be made in de facto property proceedings, particularly where the outcome is minimally different from an accepted offer. The enforcement application was to be heard separately, indicating that the court intended to address specific enforcement issues in due course.

Orders

Orders of the court

NCC 3630 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS KEDIS

Applicant

AND:

MR BAINBRIDGE

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:

1. Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Div 1 Rules’), as may be applicable, the parties are relieved from the effects of r 8.15(3)(e) of the Div 1 Rules so as to permit them to read and rely upon any annexures to their respective affidavits.

2. By 13 August 2024, the de facto husband is to pay the de facto wife’s costs fixed in the sum of $31,000.

3. All outstanding interlocutory applications are otherwise dismissed.

THE COURT NOTES THAT:

A. The enforcement application filed by the de facto husband remains listed for procedural hearing before a Judicial Registrar on Tuesday 11 June 2024 at 9.30am.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 20 of 20 shown

Booysen & Ferreira
[2022] FedCFamC2F 1248 Para 20

…ulation of party and party costs pursuant to Schedule 1 of the Div 2 Rules; I have also reflected on Judge Kemp’s observation in Booysen & Ferreira [2022] FedCFamC2F 1248 at [53] that this Schedule was designed to effect the remit of the Court to deal with matters as efficiently as possible in the exercise of its judicia…
Alston & Alston
[2021] FedCFamC1A 96 Para 10

…thus allow the parties a better chance to conduct their case in accordance with the overarching purpose. [40] See for instance Alston & Alston [2021] FedCFamC1A 96 (‘ Alston ’) at [102]; Pennisi . [41] See for example, AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134. Conclusion as to justifying circumstances…
Jess & Jess (No 2)
[2021] FedCFamC1A 49 Para 17

…d in submissions that the apportionment of costs between issues was not a new concept; upon reading the Full Court’s decision in Jess & Jess (No 2) [2021] FedCFamC1A 49 (Alstergren CJ & Strickland J) at [10], the Court’s discretion as to apportionment was founded not only on a party’s contentions but their own experien…
Lombardi & Rider
[2021] FedCFamC2F 57 Para 31

…Rolling forward some thirty-odd years the same concerns are reflected in the overarching purpose. To paraphrase Alstergren CJ in Lombardi & Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103 at [44] to [46] – elements of the overarching purpose seek to ensure the efficient use of judicial and administrative resources to…
Lawson & Glenning
[2021] FedCFamC2F 118 Para 32

…n a manner that does not cause unnecessary use of Court resources or their own resources: see Judge Reithmuller (as he then was) in Lawson & Glenning [2021] FedCFamC2F 118; (2021) 64 Fam LR 414 (‘ Lawson & Glenning ’) at [9].…
Sfakianakis & Sfakianakis
[2019] FamCAFC 54 Para 13

…not specifically submitted, it seems that the de facto wife contends for a special costs order fixed in the sum of $41,775: Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419 (‘ Sfakianakis ’) at [10].…
Bircher & Bircher and Anor
[2016] FamCAFC 123 Para 25

…facto husband’s financial statement is there an allocation for any repayments towards the two asserted creditors.[17] [16] See Bircher & Bircher [2016] FamCAFC 123. [17] cf. the specified mortgage repayments for the Suburb C property debt.…
Medlon & Medlon (No. 6) (Indemnity Costs)
[2015] FamCAFC 157 Para 11

…a finding that it is just to make a costs order.[42] [42] Prantage & Prantage (Costs) [2014] FamCA 850 and Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664 at [24]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158…
Nada & Nettle (Costs)
[2014] FamCAFC 207 Para 27

…193. [20] J-187, 188 & 197(a). [21] J-192. [22] D & D (Costs) (No 2) [2010] FamCAFC 64, (Finn, Coleman and May JJ) at [21]; Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612 (May, Ainslie-Wallace and Austin JJ) at [11].…
Prantage & Prantage (Costs)
[2014] FamCA 850 Para 11

…has priority, and one factor alone may be sufficient to ground a finding that it is just to make a costs order.[42] [42] Prantage & Prantage (Costs) [2014] FamCA 850 and Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664 at [24]; Fitzgerald (as child representative…
Brady and Brady
[2012] FamCAFC 4 Para 1

…it a proper consideration , is something to which very significant weight indeed ought normally be given. (my emphasis) [25] Brady & Brady [2012] FamCAFC 4 (‘ Brady ’) at [38]…
D & D (Costs) (No 2)
[2010] FamCAFC 64 Para 27

…y is not a barrier to the making of a costs order.[22] [18] J-197(b). [19] J-193. [20] J-187, 188 & 197(a). [21] J-192. [22] D & D (Costs) (No 2) [2010] FamCAFC 64, (Finn, Coleman and May JJ) at [21]; Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612 (May, Ainslie-Wallace and Austin JJ) at [11].…
Omacini & Omacini
[2005] FamCA 195 Para 10

…rching purpose. [40] See for instance Alston & Alston [2021] FedCFamC1A 96 (‘ Alston ’) at [102]; Pennisi . [41] See for example, AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134. Conclusion as to justifying circumstances…
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another
[2005] FamCA 158 Para 11

…015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664 at [24]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at [41].…
Browne v Green
[2002] FamCA 791 Para 1

…costs order.[25] [24] See for example Pennisi & Pennisi [1997] FamCA 39 ; (1997) 22 Fam LR 249; at pp 259-260 (‘ Pennisi ’) and Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115 (‘ Browne & Green ’) at [57] where the Full Court (Kay, Colan & Warnick JJ) observed that the failure to heed a re…
Latoudis v Casey
[1990] HCA 59 Para 18

…The High Court of Australia in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45 (‘ Latoudis v Casey ’) at [13] stated as follows: ...in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to f…
Penfold v Penfold
[1980] HCA 4 Para 17

…the costs jurisdiction including that I do not have to find a clear case to make out a costs order pursuant to s 117(2) of the Act: Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800 at pp 75,053-75,054.…
[1991] FAMCA 5
[1991] FAMCA 5 Para 30

…In the longstanding Full Court decision of Robinson & Higginbotham [1991] FamCA 5; (1991) 14 Fam LR 559; (1991) FLC 92-209 (Nygh J with whom Simpson & Smithers JJ agreed) ( Robinson & Higginbotham ) observed at page 561 that – Similarly, when one looks at para (f) it is quite clear that the purpose of that provis…
Cassidy v Murray
[1995] FAMCA 91 Para 19

…In this regard, see also the Full Court decision (Fogarty, Kay and Hase JJ) of Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633 at [35].…
[1997] FAMCA 39
[1997] FAMCA 39 Para 1

…ffer relates.[24] An offer that is not sufficiently precise may not support the making of a costs order.[25] [24] See for example Pennisi & Pennisi [1997] FamCA 39 ; (1997) 22 Fam LR 249; at pp 259-260 (‘ Pennisi ’) and Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115 (‘ Browne & Green ’) a…

Legislation cited in this decision · 2

Federal Circuit and Family Court of Australia Act 2021 (Cth)
190, 191 3 mentions (from Para 4)
Family Law Act 1975 (Cth)
117 2 mentions (from Para 4)

File number(s):	NCC 3630 of 2021
Judgment of:	JUDGE KEARNEY
Date of judgment:	13 May 2024
Catchwords:	FAMILY LAW – Costs - should a costs order be made pertaining to substantive de facto property proceedings – on what basis and quantum - whether it was reasonable or not to accept an offer prior to determination – finding a minimal percentage difference in outcome – making a special costs order in favour of de facto wife is justified
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134 Alston & Alston [2021] FedCFamC1A 96 Bircher & Bircher [2016] FamCAFC 123 Booysen & Ferreira [2022] FedCFamC2F 1248 Brady & Brady [2012] FamCAFC 4 Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115 Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633 D & D (Costs) (No 2) [2010] FamCAFC 64 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123 Jess & Jess (No 2) [2021] FedCFamC1A 49 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45 Lawson & Glenning [2021] FedCFamC2F 118; (2021) 64 Fam LR 414 Lombardi & Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103 Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664 Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612 Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800 Pennisi & Pennisi [1997] FamCA 39; (1997) 22 Fam LR 249 Prantage & Prantage (Costs) [2014] FamCA 850 Robinson & Higginbotham [1991] FamCA 5; (1991) 14 Fam LR 559; (1991) FLC 92-209 Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419
Division:	Division 2 Family Law
Number of paragraphs:	72
Date of last submission/s:	2 May 2024
Date of hearing:	Heard in chambers on the papers
Place:	Newcastle
Solicitor for the Applicant:	Tonkin Drysdale Partners
Solicitor for the Respondent:	Kilpatrick Hatton Solicitors

NCC 3630 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KEDIS Applicant
AND:	MR BAINBRIDGE Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	13 MAY 2024