Kruger & Kruger (No. 2) - [2009] FamCA 229

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
In the Marriage of Murray (1990) 14 Fam LR 311
Farlow v Farlow [2009] Fam CA 46
In the Marriage ofKohan (1992) 16 Fam LR 245
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (No 2) [2007] NSWCA 194 (10 August 2007)
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 (6 May 2008)
Penfold v Penfold (1980) 144 CLR 311
Norbis v Norbis (1986) 161 CLR 513

APPLICANT:

Ms Kruger

RESPONDENT:

Mr Kruger

FILE NUMBER:

PAC

174

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…

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 Kruger & Kruger (No. 2)

Details

AGLC: Kruger & Kruger (No. 2) [2009] FamCA 229
Case: [2009] FamCA 229
Decision Date: 26 March 2009

CaseChat Overview and Summary

In *Kruger & Kruger (No. 2)*, Coleman J of the Family Court of Australia considered an application by the husband for an order for costs on an indemnity basis in property settlement proceedings. The wife also sought costs.

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

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.

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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