Laurent and Laurent - [2013] FMCAfam 100

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAURENT & LAURENT

[2013] FMCAfam 100

FAMILY LAW – Costs – application for indemnity costs – general principles discussed – application refused – order for costs on party/party basis.

Family Law Act 1975 – s.117
Federal Magistrates Court Rules 2001 – r.21.02
Family Law Rules 2004 – r.19.18

Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Robinson and Higginbotham (1991) 14 Fam LR 559 at 561; FLC 92-209
Pennisi v Pennisi (1997) FLC 92-774
Browne and Green (2002) FLC 93–115
Lenova v Lenova (Costs) (2011) FLC 93-467
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FamCA 681
Limousin & Limousin(Costs) (2007) FamCA 1178
Fennessy & Gregorian (2009) FamCAFC 44
D & D(Costs 2) (2010) FLC 93-45
Colgate Palmolive Co. & Cussons Proprietary Limited (1993) FCA 536

Applicant:

MS LAURENT

Respondent:

MR LAURENT

File Number:

WOC 233 of 2009

Judgment of:

Foster FM

Hearing date:

11 December 2012

Date of Last Submission:

21 December 2012

Delivered at:

Sydney

Delivered on:

8 February 2013

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

John Dawson & Associates

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Verekers Lawyers

ORDERS

That the respondent husband pay the wife’s costs in the sum of $12,197 within one month from the date of these orders.
That in the event that the payment of capital or any part thereof and any interest accrued thereon to the husband pursuant to orders of 10 August 2012 is outstanding then the wife is at liberty to offset this costs order as against her liability to pay the husband.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 233 of 2009

MS LAURENT

Applicant

And

MR LAURENT

Respondent

REASONS FOR JUDGMENT

Proceedings

The application for determination is the wife’s application for costs as sought in her amended application in a case filed on 1 November 2012.
The wife seeks orders as follows:
a)That the respondent husband pay within 14 days to the wife on an indemnity basis the sum of $24,193.45 by way of costs of and incidental to the property settlement proceedings;
b)That the respondent husband pay within 14 days to the wife the sum of $2,495 by way of costs of and incidental to this application;
c)That the costs ordered pursuant to a) and b) above be paid by the husband by way of deduction from the sum of $53,423 ordered to be paid by the wife pursuant to Order 1 of 10 August 2012;
d)That any interest payable on the sum of $53,423 (or the balance thereof) ordered to be paid pursuant to Order 1 of 10 August 2012 be waived provided that payment is made within 14 days of the date of these orders.

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.

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Details

Case: [2013] FMCAfam 100
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. Laurent brought an application for costs against Mr. Laurent. The primary legal issue the court had to decide was whether Mr. Laurent should be ordered to pay Ms. Laurent's costs on an indemnity basis, or if the usual party/party costs order should be made. The court considered various factors, including the financial circumstances of the parties and the offers of settlement made during the proceedings. The court found that Ms. Laurent made several offers to settle the proceedings, each of which proposed a capital payment to Mr. Laurent that exceeded the court's final orders. This indicated a willingness to settle on terms more favourable to Mr. Laurent.

The court concluded that the circumstances warranted a departure from the usual party/party costs order. However, the court was not satisfied that the case was suitable for an indemnity costs order, which is typically reserved for cases of misconduct or bad faith. Instead, the court ordered Mr. Laurent to pay Ms. Laurent's costs in the sum of $12,197 within one month. The court also allowed Ms. Laurent to offset this costs order against her liability to pay Mr. Laurent, if the capital sum and any accrued interest pursuant to previous orders were outstanding. This decision was based on the consideration of the various offers made, the financial circumstances of both parties, and the overall context of the proceedings.

Orders