Kuriakin and Kuriakin - [2012] FMCAfam 985

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KURIAKIN & KURIAKIN

[2012] FMCAfam 985

FAMILY LAW – Cost of trial and retrial – offers of settlement – general principles.

Family Law Act 1975, s.117

Kuriakin & Kuriakin [2012] FMCAfam 382
Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Kuriakin & Kuriakin [2010] FMCAfam 40
Robinson and Higginbotham (1991) 14 Fam LR 559 at 561; FLC 92-209
Pennisi v Pennisi (1997) FLC 92-774 84,547
Browne and Green (2002) FLC 93–115
Lenova v Lenova (Costs) (2011) FLC 93-467

Applicant:

MS KURIAKIN

Respondent:

MR KURIAKIN

File Number:

SYC 5463 of 2008

Judgment of:

Foster FM

Hearing date:

14 September 2012

Date of Last Submission:

14 September 2012

Delivered at:

Sydney

Delivered on:

14 September 2012

REPRESENTATION

Solicitors for the Applicant:

Marsdens Law Group

Solicitors for the Respondent:

Macelbing Mednis & Associates

ORDERS

That the husband pay 75% of the costs of the wife as agreed or assessed on a party/party basis in relation to proceedings up to and including the first trial and that the husband pay 75% of the costs of the wife of the retrial less any sum paid pursuant to the cost certificate granted.
That the husband pay the wife’s costs of this application as agreed or assessed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5463 of 2008

MS KURIAKIN

Applicant

And

MR KURIAKIN

Respondent

REASONS FOR JUDGMENT

Proceedings

The application for determination is the wife's application for an order for costs as sought in her Amended Application in a Case filed on 27 June 2012.
The wife seeks an order in the following terms:
“that the respondent husband pay to the applicant wife costs as agreed or assessed, of the applicant wife in these proceedings.”
In contested property proceedings before the Court, the Court on 22 March 2012 made orders that, in summary, provided for the husband to pay to the wife the sum of $320,058 and that there be a splitting order in favour of the wife from the husband's superannuation fund in the sum of $106,285 (Kuriakin & Kuriakin [2012] FMCAfam 382).

The Law

Pursuant to section 117 of the Act, each party to the proceedings shall bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2) which provides as follows:
“If the court is of the opinion that there are circumstances that justify it in so doing, that it may, subject to the further subsections thereof and the applicable rules of court, make such order as to costs as the court considers just.”
Although s.117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an…

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 Kuriakin and Kuriakin

Details

AGLC: Kuriakin and Kuriakin [2012] FMCAfam 985
Case: [2012] FMCAfam 985
Decision Date

CaseChat Overview and Summary

The case of Kuriakin and Kuriakin before the Federal Magistrates Court concerns an application by the wife for an order for costs as sought in her amended application filed on 27 June 2012. The wife, MS Kuriakin, sought an order that the husband, MR Kuriakin, pay her costs as agreed or assessed, of the wife in these proceedings. The court was required to decide the legal issues of the application of section 117 of the Family Law Act 1975 (Cth) and the relevant factors in determining the costs of the proceedings. Section 117(1) of the Act provides that each party to the proceedings shall bear their own costs, but the court has discretion under section 117(2) to make an order for costs if there are justifiable circumstances.

The court considered the financial circumstances of each party, whether either party made a written offer to settle the proceedings, and any other relevant matters. The court found that the wife made offers of settlement that were more favourable to the husband than the outcome at trial. The husband rejected these offers and did not resolve the proceedings. The court held that the husband should meet a significant portion of the wife's costs and ordered that he pay 75% of the wife's costs of the first trial and the retrial less any sum paid pursuant to the cost certificate granted. The court also ordered that the husband pay the wife's costs of this application.

The court's reasoning was based on the principle that offers of settlement are encouraged to avoid litigation and the workload of the court. The court held that the husband should have accepted the wife's offers of settlement that were within the range of possible outcomes. The court found that the husband had the opportunity to resolve the proceedings and did not. The court ordered that the husband pay 75% of the wife's costs of the first trial and the retrial less any sum paid pursuant to the cost certificate granted. The court also ordered that the husband pay the wife's costs of this application.

Orders