FAMILY COURT OF AUSTRALIA
| KRUGER & KRUGER (NO. 2) | [2009] FamCA 229 |
| FAMILY LAW – COSTS – Where husband sought an order for the costs of the proceedings for settlement of property on an indemnity basis – The significance of the husband’s making of an offer to settle the proceedings considered – Not accepted that any aspect of the husband’s offer rendered it invalid and precluded successful reliance upon the offer – Where superficially the wife would have been better off, or at least no worse off, had she accepted the husband’s offer but where further aspects, in complex proceedings, meant that acceptance of the offer would not have seen an end to the dispute –– Where the wife’s claim, though optimistic, was not fanciful – Where the parties had a legitimate dispute to agitate before the Court – Where the trial of those issues was conducted with economy and expedition – Where neither party was wholly successful or wholly unsuccessful – No order for costs appropriate |
| Family Law Act 1975 (Cth) s 117(2)(A)(f) Robinson v Higginbotham (1991) FLC 92-209 |
| APPLICANT: | Ms Kruger |
| RESPONDENT: | Mr Kruger |
| FILE NUMBER: | PAC | 174 | of | 2007 |
| DATE DELIVERED: | 26 March 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 20 February 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr de Robillard |
| SOLICITOR FOR THE APPLICANT: | Kent Attorneys |
| COUNSEL FOR THE RESPONDENT: | Mr Dubler S.C. Mr Combe |
| SOLICITOR FOR THE RESPONDENT: | Macquarie Partnership |
Orders
That the husband’s application for costs be dismissed.
That the wife’s application for costs be dismissed.
That each party pay his or her costs of and incidental to the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Kruger & Kruger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 174 of 2007
| MS KRUGER |
Applicant
And
| MR KRUGER |
Respondent
REASONS FOR JUDGMENT
COSTS
Introduction
Consequent upon the ultimate determination of the substantive proceedings between the parties, the husband sought an order for the costs of the proceedings on an indemnity basis.
The Court has had the benefit of comprehensive written submissions on behalf of the husband in support of his costs application, such submissions being dated 24 October 2008 and 11 March 2009. The Court has also had the benefit of comprehensive written submissions on behalf of the wife in opposition to the husband’s costs application, such submissions being dated 19 February 2009 and 19 March 2009. The Court has also…
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- AGLC
- Kruger & Kruger (No. 2) [2009] FamCA 229
- Case
- [2009] FamCA 229
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the husband's offer to settle the proceedings was valid and precluded reliance upon it for an indemnity costs order, and whether the wife's claim was fanciful. The court also had to consider the overall conduct of the parties and the trial, and whether either party was wholly successful or unsuccessful.
Coleman J reasoned that the husband's offer to settle was not invalid, despite superficial appearances suggesting the wife might have been better off or no worse off had she accepted it. The court found that further aspects of the complex proceedings meant that acceptance of the offer would not have brought an end to the dispute. While the wife's claim was optimistic, it was not considered fanciful, and the parties had a legitimate dispute to agitate. The trial was conducted with economy and expedition, and neither party achieved complete success. Consequently, the court determined that an order for costs on an indemnity basis was not appropriate.
The court ordered that the husband's application for costs be dismissed, and the wife's application for costs be dismissed. Each party was ordered to pay his or her own costs of and incidental to the proceedings.
Orders
Orders of the court
1.
That the husband’s application for costs be dismissed.
2.
That the wife’s application for costs be dismissed.
3.
That each party pay his or her costs of and incidental to the 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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