Kelso and Aldrin (No.2) - [2017] FCCA 3215

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELSO & ALDRIN (No.2)

[2017] FCCA 3215

Catchwords:
FAMILY LAW – Costs – application for indemnity costs after successful enforcement application – husband’s attempts to set aside orders misconceived – wife entitled to enforce orders – wife’s costs increased because of husband’s actions – indemnity costs justified.

Legislation:

Family Law Act 1975, ss.117(1), 117(2A)

Federal Circuit Court Rules2001, Part 21

Cases cited:

Kelso & Aldrin [2017] FCCA 2219

Prantage & Prantage [2013] FamCAFC 105
Calderbank v Calderbank [1975] 3 All ER 333

Applicant:

MR KELSO

Respondent:

MS ALDRIN

File Number:

MLC 6535 of 2014

Judgment of:

Judge Harland

Hearing date:

4 September 2017

Date of Last Submission:

2 October 2017

Delivered at:

Melbourne

Delivered on:

19 December 2017

REPRESENTATION

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Brooks

Solicitors for the Respondent:

Maharaj Lawyers

ORDERS

That the husband pay the wife’s costs in the sum of $22,022.71.
That the wife’s indemnity costs be paid to the wife from the sale proceeds of the default sale of the property at Property A, prior to any balance being distributed to the husband pursuant to paragraph 4(a)(iv) of the orders made 30 March 2017.

IT IS NOTED that publication of this judgment under the pseudonym Kelso & Aldrin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6535 of 2014

MR KELSO

Applicant

And

MS ALDRIN

Respondent

REASONS FOR JUDGMENT

The wife seeks an order for costs in her favour on an indemnity basis, incurred in relation to the husband’s Initiating Application and amended Initiating Application filed on 14 August 2017, and her costs in enforcing the consent orders, resolving the property issues between them, which the parties entered into on 30 March 2017. The circumstances of the amended application are set out in my first judgment Kelso & Aldrin [2017] FCCA 2219. Those reasons should be read with these reasons for background.
Upon the conclusion of that hearing, I made directions for the filing of written submissions with respect to costs. The wife was to provide written submissions on or before 11 September 2017 and the husband’s response to submissions on or before 25 September 2017.
The wife’s solicitors emailed my Associate on 12 September 2017 advising of difficulties with respect to filing their submissions on the Commonwealth Courts Portal due to a file corruption. They advised they would attend the Melbourne Registry that day to file the document in person but also attached an electronic copy to their email.
A further email from the wife’s solicitors was received on 15 September 2017. They reiterated that due to technical difficulties they attended the Melbourne Registry to file the submissions and it was recommended that they inform the husband of the issue. The solicitor for the wife forwarded an unsealed copy of the submissions to the husband by express post that day.
The husband filed submissions for costs on 15…

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 Kelso and Aldrin (No.2)

Details

AGLC: Kelso and Aldrin (No.2) [2017] FCCA 3215
Case: [2017] FCCA 3215
Decision Date: 19 December 2017

CaseChat Overview and Summary

In *Kelso and Aldrin (No.2)*, the Family Court of Australia considered an application by the wife for costs following earlier proceedings. The dispute concerned the division of property and the wife's entitlement to indemnity costs.

The primary legal issue before the Court was whether the wife should be awarded her costs, and specifically, whether those costs should be on an indemnity basis. This required the Court to consider the conduct of the parties during the litigation and whether such conduct warranted an order for indemnity costs.

Judge Harland found that the wife was entitled to her costs. The Court ordered that the husband pay the wife's costs in the sum of $22,022.71. Furthermore, the Court ordered that the wife's indemnity costs be paid to her from the sale proceeds of a property, prior to any distribution to the husband.

Orders

Orders of the court

That the husband pay the wife’s costs in the sum of $22,022.71.

That the wife’s indemnity costs be paid to the wife from the sale proceeds of the default sale of the property at Property A, prior to any balance being distributed to the husband pursuant to paragraph 4(a)(iv) of the orders made 30 March 2017.

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.