Lasic and Lasic - [2008] FamCA 80

FAMILY COURT OF AUSTRALIA

LASIC & LASIC

[2008] FamCA 80

FAMILY LAW - COSTS

Family Law Act 1975(Cth) s 79A
Family Law Rules 1004 (Cth) Rule 19
Bankruptcy Act 1966 (Cth)

Penfold v Penfold (1980) 144 CLR 311
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Yunghanns v Yunghanns (2000) FLC 93-029; (2000) 26 Fam LR 331
Limousin v Limousin (Costs) [2007] FamCA 1178
Munday v Bowman (1997) FLC 92‑784
Kohan & Kohan (1993) FLC 92-340
A & A [2006] FamCA 102

APPLICANT:

THE OFFICIAL TRUSTEE IN BANKRUPTCY OF THE ESTATE OF MR LASIC

RESPONDENT:

MRS LASIC

FILE NUMBER:

PAF

7534

1997

DATE DELIVERED:

14 February 2008

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Coleman J

HEARING DATE:

16, 17 & 18 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Durston

SOLICITOR FOR THE APPLICANT:

Home Wilkinson Lowry

COUNSEL FOR THE RESPONDENT:

Mr. Foster

SOLICITOR FOR THE RESPONDENT:

Turner Freeman

Orders

That the respondent wife pay the costs of and incidental to the proceedings of the trustee of the bankrupt estate of the deceased former husband as and from the date of filing of the trustee’s originating application to this Court on a solicitor/client basis as agreed or assessed under the Family Law Rules 2004 (Cth).
That for the purpose of the assessment of costs pursuant to Order 1, Rule 19.18 Family Law Rules 2004 (Cth) does not apply.
That it be certified pursuant to Rule 19.50 Family Law Rules 2004 (Cth) that this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

File Number: PAF 7534 of 1997

THE OFFICIAL TRUSTEE IN BANKRUPTCY OF THE ESTATE OF MR LASIC

Applicant

And

MRS LASIC

Respondent

REASONS FOR JUDGMENT

COSTS

Subsequent to the Court making final orders in the substantive proceedings between the wife as respondent and the trustee of the bankrupt estate of her now deceased former husband as applicant, the wife applied for an order that the trustee pay her costs of and incidental to the substantive proceedings as agreed or taxed. The trustee opposed any such order and sought that the wife pay the trustee’s costs of and incidental to the proceedings. Each party sought that any costs awarded be on an indemnity basis, or, alternatively, on a party and party basis.
Two questions thus arise for determination, namely:
(i) Should there be an order for costs in favour of either party; and
(ii) If so, should such costs be awarded on other than a party/party basis?
Each party filed written submissions in relation to the costs issue.
On behalf of the wife, substantial reliance was placed upon the conduct of the proceedings by the trustee. Reliance was placed upon the undisputed history of proceedings pursuant to the Family Law Act1975 (Cth) (“the Act”) and the Bankruptcy Act

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 Lasic and Lasic

Details

AGLC: Lasic and Lasic [2008] FamCA 80
Case: [2008] FamCA 80
Decision Date: 14 February 2008

CaseChat Overview and Summary

In the matter of *Lasic and Lasic*, heard by Coleman J, the proceedings concerned a dispute involving the respondent wife and the trustee of the bankrupt estate of her deceased former husband. The specific nature of the dispute is not detailed, but it involved the trustee's participation in the proceedings.

The central legal issue before the court was the determination of costs. Specifically, the court was required to decide who should bear the costs of the trustee's involvement in the proceedings and on what basis those costs should be assessed. This included whether the standard cost assessment rules under the *Family Law Rules 2004* (Cth) would apply and whether the attendance of counsel was reasonably required.

Coleman J ordered that the respondent wife pay the costs of and incidental to the proceedings of the trustee of the bankrupt estate of the deceased former husband. These costs were to be on a solicitor/client basis, as agreed or assessed under the *Family Law Rules 2004* (Cth), commencing from the date the trustee filed their originating application. The court further ordered that Rule 19.18 of the *Family Law Rules 2004* (Cth) would not apply for the purpose of assessing these costs. Finally, it was certified, pursuant to Rule 19.50 of the *Family Law Rules 2004* (Cth), that the matter reasonably required the attendance of Counsel.

Orders

Orders of the court

That the respondent wife pay the costs of and incidental to the proceedings of the trustee of the bankrupt estate of the deceased former husband as and from the date of filing of the trustee’s originating application to this Court on a solicitor/client basis as agreed or assessed under the Family Law Rules 2004 (Cth).

That for the purpose of the assessment of costs pursuant to Order 1, Rule 19.18 Family Law Rules 2004 (Cth) does not apply.

That it be certified pursuant to Rule 19.50 Family Law Rules 2004 (Cth) that this matter reasonably required the attendance of Counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.