Khoury & Khoury

Case [2023] FedCFamC2F 1087


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Khoury & Khoury [2023] FedCFamC2F 1087

File number: ADC 5819 of 2022
Judgment of: JUDGE BROWN
Date of judgment: 25 August 2023
Catchwords: FAMILY LAW – COSTS – where the husband instituted parenting and divorce proceedings – where the wife had instructed solicitors and counsel to complete documents as ordered – where the husband discontinued said proceedings without notice to the wife on even date – wife is seeking costs on an indemnity basis – consideration as to an order for indemnity costs – exceptional circumstances – considerations relevant to party/party costs
Legislation:

Family Law Act 1975 (Cth) s 4(1), 39, 44(3), 48, 49(2), 55A, 59, 60B, 60I, 61B, 64B, 65C, 67Z, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 7, 25, 132, 149, 190, 191, 192

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, Ch 12, Pts 4.01, 10.01, 12.8, rr 1.04, 4.01, 10.03, 12.01, 12.08, 12.13, 12.17, 12.47

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) rr 2.01, 3.01(3), 4.01

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Browne v Green (2002) 170 FLR 411

Bulow & Bulow (No 5) [2021] FedCFamC2F 166

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Gin & Hing [2010] FamCA 617

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

In the Marriage of Kohan (1992) 16 Fam LR 245

Marks v GIO Australia Holdings Ltd (No2) (1996) 66 FCR 128

Parke & The Estate of the Late A Parke (2016) FLC 93-748

Prantage & Prantage (2013) FLC 93-544

Re Wilox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

Stasiuk & Guild [2021] FamCAFC 62

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Division: Division 2 Family Law
Number of paragraphs: 251
Date of hearing: 31 July 2023
Place: Adelaide
Counsel for the Applicant: Ms Vohra SC
Solicitor for the Applicant: Norman Waterhouse Lawyers
Counsel for the Respondent: Mr Bartfeld KC
Solicitor for the Respondent: BBS Family Lawyers & Mediators

ORDERS

ADC 5819 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS KHOURY

Applicant

AND:

MR KHOURY

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:

1.Within thirty (30) days of the date of these orders, the Respondent Husband, pay the Applicant Wife:

(a)The fixed sum of FORTY FIVE THOUSAND DOLLARS ($45,000.00) by way of party/party costs arising from the discontinued proceedings and relating to the costs application made ancillary to it; and

(b)The sum of the Applicant Wife’s disbursements for her counsel’s fees arising from the appearances at the initial directions hearing on 2 February 2023 and subsequent hearings on 4 May 2023, 12 May 2023 and 31 July 2023 in relation to the costs application.

2.The Application in a Proceeding filed 29 March 2023 is dismissed.

Note:   The…

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AGLC
Khoury & Khoury [2023] FedCFamC2F 1087
Case
[2023] FedCFamC2F 1087
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Khoury & Khoury involved a dispute between Ms Khoury and Mr Khoury, who were formerly married. Ms Khoury sought costs on an indemnity basis following Mr Khoury's unilateral discontinuation of parenting and divorce proceedings. Ms Khoury had complied with court orders to complete necessary documents through her solicitors and counsel, but Mr Khoury discontinued the proceedings without notice to her. The legal issues before the court included whether Ms Khoury's costs were properly incurred and whether Mr Khoury's actions justified an order for indemnity costs.

The court found that Ms Khoury had incurred costs in good faith and as a result of Mr Khoury's actions, which amounted to a unilateral discontinuation of the proceedings. The court noted that Mr Khoury's decision to discontinue the proceedings without notice was abrupt and left Ms Khoury without the opportunity to respond or mitigate her costs. The court concluded that the circumstances were exceptional, warranting an order for indemnity costs. It was determined that Mr Khoury's unilateral discontinuation without proper notice to Ms Khoury constituted a breach of the principles of fairness and good faith required in family law proceedings.

The court ordered Mr Khoury to pay Ms Khoury a fixed sum of $45,000 by way of party/party costs arising from the discontinued proceedings, along with the sum of Ms Khoury's disbursements for her counsel’s fees related to the costs application. The application filed on 29 March 2023 was dismissed.

Orders

Orders of the court

ADC 5819 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS KHOURY

Applicant

AND:

MR KHOURY

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:

1. Within thirty (30) days of the date of these orders, the Respondent Husband, pay the Applicant Wife:

(a) The fixed sum of FORTY FIVE THOUSAND DOLLARS ($45,000.00) by way of party/party costs arising from the discontinued proceedings and relating to the costs application made ancillary to it; and

(b) The sum of the Applicant Wife’s disbursements for her counsel’s fees arising from the appearances at the initial directions hearing on 2 February 2023 and subsequent hearings on 4 May 2023, 12 May 2023 and 31 July 2023 in relation to the costs application.

2. The Application in a Proceeding filed 29 March 2023 is dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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