FAMILY COURT OF AUSTRALIA
| LIMOUSIN & LIMOUSIN | [2008] FamCA 315 |
| FAMILY LAW – COSTS – Indemnity costs sought by husband against the solicitor for the wife following a long complex financial dispute – Applicable principles of indemnity costs discussed together with the basis of costs being sought to be paid by a solicitor. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Penfold v Penfold (1980) 144 CLR 311 Collins v Collins (1985) FLC 91-603 JEL v DDF (No. 2) (2001) FLC 93-083 Kohan and Kohan (1993) FLC 92-340 Limousin & Limousin and Anor [2004] FamCA 1315 Jachimowicz v Jachimowicz (1986) FLC 91-702 Flower & Hart v White Industries (1999) 163 ALR 744 Williams v Spautz (1992) 174 CLR 509 Edwards v Edwards (1958) 2 All ER 179 Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FLR 225 Jones v Dunkel (1959) 101 CLR 298 Fabre v Arenales (1992) 27 NSWLR 437 at 449 Payne v Parker (1976) 1 NSWLR 191 at 202 |
| APPLICANT: | Mr Limousin |
| RESPONDENT: | Mrs Limousin |
| FILE NUMBER: | MLF | 10522 | of | 1996 |
| DATE DELIVERED: | 30 April 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Guest |
| HEARING DATE: | 20 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lipshutz |
| SOLICITOR FOR THE APPLICANT: | Berry Family Law |
| FOR THE RESPONDENT: | No appearance |
| WIFE’S FORMER SOLICITOR: | Issac Brott in person |
Orders
That Issac Brott the former solicitors for the wife in these proceedings do pay 60 per cent of the costs of the husband on an indemnity basis as agreed or in default of agreement as assessed under the Family Law Rules 2004 (Cth) (“the said Rules”) such costs being those incurred on 2 April and 3 April 2003, 12, 13, 14, 26, 27 and 28 May 2003, 31 July 2003 and 1 August 2003.
That ISSAC BROTT do pay:
2.1 All reasonable costs of and incidental to the wife’s application filed on 26 March 2003, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the Rules;
2.2 All costs of and incidental to preparation of all written objections to the trial affidavit of the wife and the trial affidavits of Mr M together with costs for one half day of the proceedings on 1 April 2003 lost in preparation of the substituted affidavit of the said Mr M, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the said Rules;
2.3 All costs of and incidental to the application of the wife filed on 14 May 2003 being the professional costs and disbursements necessary to prepare all answering submissions and receive judgment, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the said Rules;
2.4 All costs of and incidental to the wife’s application filed on 16 July 2003 including the costs of retention of Mr St John SC and…
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- Limousin & Limousin [2008] FamCA 315
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- [2008] FamCA 315
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CaseChat Overview and Summary
The court was required to determine whether Issac Brott should be ordered to pay a portion of the husband's costs on an indemnity basis, and to what extent they should bear the wife's costs, also on either a party/party or indemnity basis, in relation to specific applications and trial preparation. The court also needed to consider whether the attendance of Senior Counsel was reasonably required for the proceedings.
Justice Guest reasoned that Issac Brott's conduct warranted a significant costs order against them. The court found that the solicitors' actions necessitated the husband incurring costs on an indemnity basis for specific hearing dates. Furthermore, Issac Brott was ordered to pay the wife's costs on a party/party basis for several applications, including those related to objections to affidavits and the preparation of answering submissions. Notably, the wife's costs for a further application, which involved the retention of Senior Counsel, were also to be paid by Issac Brott on an indemnity basis. The court also ordered Issac Brott to pay the husband's costs for the preparation of costs submissions.
The court ordered that Issac Brott pay 60 per cent of the husband's costs on an indemnity basis for specific hearing dates. Issac Brott was also ordered to pay the wife's costs on a party/party basis for several applications, and on an indemnity basis for another application involving Senior Counsel. Additionally, Issac Brott was to pay the husband's costs for the preparation of costs submissions on a party/party basis. The court also made a finding that the attendance of Counsel, including Senior Counsel, was reasonably required. All other applications were dismissed, and the proceedings were removed from the Active Pending Cases List.
Orders
Orders of the court
1.
That Issac Brott the former solicitors for the wife in these proceedings do pay 60 per cent of the costs of the husband on an indemnity basis as agreed or in default of agreement as assessed under the Family Law Rules 2004 (Cth) (“the said Rules”) such costs being those incurred on 2 April and 3 April 2003, 12, 13, 14, 26, 27 and 28 May 2003, 31 July 2003 and 1 August 2003.
2.
That ISSAC BROTT do pay:
2.1 All reasonable costs of and incidental to the wife’s application filed on 26 March 2003, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the Rules;
2.2 All costs of and incidental to preparation of all written objections to the trial affidavit of the wife and the trial affidavits of Mr M together with costs for one half day of the proceedings on 1 April 2003 lost in preparation of the substituted affidavit of the said Mr M, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the said Rules;
2.3 All costs of and incidental to the application of the wife filed on 14 May 2003 being the professional costs and disbursements necessary to prepare all answering submissions and receive judgment, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the said Rules;
2.4 All costs of and incidental to the wife’s application filed on 16 July 2003 including the costs of retention of Mr St John SC and Mr Graham QC and for the preparation of all written submissions, such costs to be assessed on an indemnity basis as agreed or in default of agreement as assessed under the said Rules.
3.
That the said ISSAC BROTT do pay all costs of and incidental to the preparation of the costs submissions prepared on behalf of the husband including the written submissions of 5 March 2008 and 4 April 2008, such costs to be assessed on a party/party basis as agreed or in default of agreement as assessed under the said Rules.
4.
That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.
5.
That all applications be otherwise dismissed and the proceedings removed from the Active Pending Cases List
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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