FEDERAL CIRCUIT COURT OF AUSTRALIA
| LABELLA & LABELLA (No.2) | [2020] FCCA 3267 |
| Catchwords: FAMILY LAW – Costs – undefended property proceedings – where Respondent Husband dropped out of the proceedings – where matter heard on a final basis undefended – where section 117(2A) applied. |
| Legislation: Family Law Act 1975 (Cth), ss.117, 117B. Family Law Rules 2004 (Cth) sch 3. Federal Circuit Court Rules 2001 (Cth) rr 21.02, 21.10, 21.11; sch 1.. |
| Cases cited: Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MS LABELLA |
| Respondent: | MR LABELLA |
| File Number: | WOC 1080 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 12 June 2020 |
| Date of Last Submission: | 10 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr McEwan of Heard McEwan Legal |
| The Respondent did not appear |
ORDERS
That the Respondent Husband Mr Labella pay the Applicant Wife Ms Labella’s costs of these proceedings in the fixed sum of $50,000, such sum to be paid by the Respondent Husband into the trust account of the Applicant Wife’s solicitors Heard McEwan Legal within 21 days of the making of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Labella & Labella (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 1080 of 2018
| MS LABELLA |
Applicant
And
| MR LABELLA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are Reasons for Judgment in relation to the costs application by the Applicant Wife Ms Labella (‘the Applicant’) consequent upon judgment being delivered on 12 June 2020 after the final undefended hearing of these property proceedings that occurred on 24 October 2019.
The Respondent Respondent is Mr Labella (‘the Respondent’).
At the final undefended hearing in October 2019, Ms Eldershaw of Counsel appeared for the Applicant. There was no appearance by or for the Respondent.
It is the Applicant’s application that the Respondent pay her costs of these proceedings in the amount of $50,000.00.
The substantive proceedings
The substantive proceedings related to property settlement pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’). They were commenced by the Applicant filing an Initiating Application accompanied by affidavit and Financial Statement on 19 October 2018, all of which were…
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- AGLC
- LABELLA & LABELLA (No.2) [2020] FCCA 3267
- Case
- [2020] FCCA 3267
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the Applicant Wife was entitled to an order for costs against the Respondent Husband, and if so, the appropriate quantum of those costs, particularly in light of the Respondent Husband's withdrawal from the proceedings. The Court was required to consider the application of section 117(2A) of the *Family Law Act 1975* (Cth) in determining the entitlement to and quantum of costs.
Judge Morley reasoned that the Respondent Husband's conduct in withdrawing from the proceedings, thereby necessitating the final hearing on an undefended basis, justified an award of costs in favour of the Applicant Wife. The Court applied the principles of section 117(2A) of the *Family Law Act 1975* (Cth), which allows for costs orders in circumstances where a party has conducted proceedings unreasonably or vexatiously, or where it is otherwise just and equitable to do so. The Court found that the Respondent Husband's actions fell within the scope of conduct warranting a costs order.
Consequently, the Court ordered that the Respondent Husband pay the Applicant Wife's costs of the proceedings in the fixed sum of $50,000. This sum was to be paid into the trust account of the Applicant Wife's solicitors within 21 days of the making of the orders.
Orders
Orders of the court
1.
That the Respondent Husband Mr Labella pay the Applicant Wife Ms Labella’s costs of these proceedings in the fixed sum of $50,000, such sum to be paid by the Respondent Husband into the trust account of the Applicant Wife’s solicitors Heard McEwan Legal within 21 days of the making of these orders.
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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