Laniga & Carron (No 4) - [2023] FedCFamC2F 598

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laniga & Carron (No 4) [2023] FedCFamC2F 598

File number: BRC 9038 of 2016

Judgment of: JUDGE LAPTHORN

Date of judgment: 30 May 2023

Catchwords: FAMILY LAW - Costs - Application to set aside a Costs Assessment Order - Notice of Discontinuance filed in relation to an appeal against a costs order – Consideration as to whether the payee is estopped from enforcing the costs order in light of written promise not to pursue the costs order if the Notice of Discontinuance filed – Costs Assessment Order set aside - Permanent Stay Order made

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2012 (Cth) rr 11.07, 12.51

Cases cited:
Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333

Carron & Laniga [2019] FamCAFC 115, (2019) FLC 93-909

The Commonwealth v. Verwayen (1991) 170 CLR 394

Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: Matter considered on the papers in Chambers

Place: Brisbane

Solicitor for the Applicant: Self represented Litigant

Solicitor for the Respondent: Goode Family Lawyers
ORDERS

BRC 9038 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARRON

Applicant

AND:
MS LANIGA

Respondent

order made by:

JUDGE LAPTHORN

DATE OF ORDER:

30 May 2023

THE COURT ORDERS THAT:
1.The Costs Assessment Order made 22 February 2022 is set aside.
2.The Respondent Wife be permanently stayed from enforcing the Order for Costs made 4 December 2018.
3.All outstanding applications be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Laniga & Carron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION

This matter has come before me to determine the husband's Application in a Proceeding filed 7 March 2022. In that application he sought orders pursuant to rule 12.51 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2012 to set aside a Costs Assessment Order made by a Judicial Registrar on 22 February 2022. The application is opposed by the Respondent wife. The significant consideration in this case is whether the wife is estopped from pursuing the costs order regardless of any assessed amount.
MATERIAL RELIED ON
The parties…

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 Laniga & Carron (No 4)

Details

AGLC: Laniga & Carron (No 4) [2023] FedCFamC2F 598
Case: [2023] FedCFamC2F 598
Decision Date

CaseChat Overview and Summary

In Laniga & Carron (No 4) [2023] FedCFamC2F 598, the Federal Circuit and Family Court of Australia (Division 2) was tasked with determining whether the wife was estopped from enforcing a Costs Assessment Order. The husband argued that the wife was estopped from enforcing the order due to a representation made through her solicitor that she would not pursue the costs order if he withdrew his appeal against the order. The wife argued that the issue had already been considered and was thus res judicata. The court found that although the issue of estoppel was not considered by the previous judge, the husband's reliance on the wife's representation to his detriment was sufficient to establish estoppel. The court held that it would be unconscionable for the wife to pursue the costs order given her earlier representation.

The court reasoned that the wife's solicitor explicitly represented that the wife would not pursue the costs order if the husband filed a Notice of Discontinuance in relation to the appeal against the order. The husband relied on this representation by filing the Notice of Discontinuance, thereby acting to his detriment. The court found that it would be unconscionable for the wife to pursue the costs order given the husband's reliance on her representation. Therefore, the wife was estopped from enforcing the costs order.

The court set aside the Costs Assessment Order and made a Permanent Stay Order preventing the wife from enforcing the costs order. The husband's application to set aside the costs order was granted, and all outstanding applications were dismissed. The court's decision was based on the principles of promissory estoppel, which preclude a party from enforcing a right if it would be unconscionable to do so due to the party's earlier representation.

Orders