Kinton and Kinton

[2009] FamCA 689

FAMILY COURT OF AUSTRALIA

KINTON & KINTON [2009] FamCA 689

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Kinton

RESPONDENT: Ms Kinton

INTERVENOR: P Kinton

FILE NUMBER: SYC 405 of 2007

DATE DELIVERED: 5 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 5 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

COUNSEL FOR THE RESPONDENT: Mr Stewart

INTERVENOR: No appearance

Orders

1. The respondent pay the applicant’s costs as follows:

   (a)as to the costs incurred by the applicant whilst instructing Messrs Harris Hyde Page in relation to this matter the costs of the applicant on a party and party basis

   (b)as to the fees for Counsel briefed on the application those costs shall be paid by the respondent on a party and party basis.

   (c)the costs incurred for solicitors costs and disbursements excluding Counsels fees during the period from the date of the filing of the application for summary dismissal to the date of its conclusion of and incidental to that application is to be paid on an indemnity basis.

2. All the costs provided for above shall be in such sum as is agreed or assessed.

3. The respondent pay the applicant’s costs of and incidental to this application for costs on a party and party basis.

4. The amount due for costs when determined be paid by the respondent:

   (a)in the event that the matter between the husband and wife is not determined at the time that the costs have been determined then as to one half thereof on the ascertainment of those costs and as to the balance on the conclusion of the proceedings between the husband and the wife.

   (b)in the event that the matter between the husband and the wife is determined at the time that the costs have been determined then forthwith upon that determination.

IT IS NOTED that publication of this judgment under the pseudonym Kinton and Kinton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 405  of 2007

MR KINTON

Applicant

And

MS KINTON

Respondent

And

P KINTON

Intervenor

REASONS FOR JUDGMENT

1. The proceedings before the Court are ones in which the second respondent seeks an order that the applicant pay his costs of these proceedings on an indemnity basis.  The costs claimed by the applicant relate to his instructing Messrs Harris Hyde Page, solicitors, for a proportion of the proceedings, for a time preparing with the assistance of his wife, who has rendered a charge in relation to the matters that were before the Court, and who did not formally act for him, and also for the costs of his current attorneys Messrs McDonell Milne Toltz.

2. Before the Court are the fee agreements with respect to Messrs McDonell Milne Toltz and there are no fee agreements with respect to the instruction of Messrs Harris Hyde Page.  I am informed by counsel for the applicant that a calculation has been done which indicates the rates of charge although there are no costs agreements in relation to the instruction of Harris Hyde Page. 

3. In my view, having regard to the authorities, it is clear that I ought not to make an indemnity order for party and party costs except in the circumstances where first of all there had been compliance in full with the provisions of rule 19, and, in addition, for more abundant caution have before me, the agreements upon which the retainer is based.  Not having those documents in relation to the retention of Harris Hyde Page, it would not be my intention to make any orders for indemnity costs with respect to those fees incurred by the applicant.

4. In relation to the fees claimed in respect of the wife of the applicant, who was not formally on the record, I reject the claim.  They are not fees which can properly be claimable in these proceedings.

5. As to the fees incurred with Messrs McDonell Milne Toltz, whilst I have before me the fee agreement with respect to that firm, I have no fee agreement with respect to the counsel who was retained in the matter. 

   RECORDED  :   NOT TRANSCRIBED

6. I do not know whether the fee charged by Messrs McDonell Milne Toltz, in respect of which an indemnity costs order is claimed include the provision of disbursements.  I decline to make any order for the payment of counsel's fees on an indemnity basis.  In relation to the solicitor's fees, I think, having regard to the nature of the claim, the success of the claim, the notification of the solicitors for the respondent of the intention to make the claim and the notification in advance of the application for summary dismissal, and of an intention to make that application that some proportion of those fees be paid on an indemnity basis but not all.

7. Accordingly, it is my intention to make an order that the costs of the applicant, excluding the costs of counsel as previously indicated, from the date of filing of the application for summary dismissal to the date of conclusion of its hearing, be paid on an indemnity basis.

8. Any other costs are to be paid on a party and party basis and to be agreed or assessed.

9. In relation to the costs incurred with Messrs Harris Hyde Page, I decline to make an order, as I have said on an indemnity basis, but I believe it is appropriate that an order for costs be made on a party and party basis.  Such sum to be agreed or assessed.

10. In relation to the time for payment of any order for costs, given the age and the financial position of the respondent, my intention to make an order is that upon ascertainment of the costs one half of the sum be paid immediately providing that the matter between the husband and wife has not then been determined, and that the balance be payable upon the wife receiving the fruits of that litigation, or in the event that she receives no fruits of the litigation upon its conclusion.

    RECORDED  :   NOT TRANSCRIBED

11. Anything else I can do to assist?

    RECORDED  :   NOT TRANSCRIBED

12. I make an order for the payment of the applicant's costs on a party and party basis and of this application for costs.  Such sum to be added to the other sum due and payable at the same time.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  5 February 2009