Lotta and Lotta (No 3) - [2015] FamCA 695

FAMILY COURT OF AUSTRALIA

LOTTA & LOTTA (NO 3)

[2015] FamCA 695

FAMILY LAW – COSTS – where the wife successful in her application for enforcement of interim spouse maintenance – where the wife substantially successful – where the wife seeks costs on an indemnity or party/party basis – where relevant factors under s 117 of the Family Law Act 1975 (Cth) considered – where principles underlying an award for indemnity costs considered – where order made for costs on a party/party basis.

Family Law Act 1975 (Cth) ss 117, 117AA, 117AC, 118
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
D & D (Costs) (No. 2) [2010] FamCAFC 64
Fennessy & Gregorian [2009] FamCAFC 44
Limousin & Limousin [2007] FamCAFC 1178
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311.
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Ms Lotta

RESPONDENT:

Mr Lotta

FILE NUMBER:

PAC

3435

2013

DATE DELIVERED:

21 August 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

Thurlow Fisher Lawyers & Consultants

SOLICITOR FOR THE RESPONDENT:

Samuel Jones Legal Services

Orders

That the husband pay 80 per cent of the wife’s costs of and incidental to the Enforcement Application filed on 5 February 2015, including this costs application, on a party/party basis as agreed between the parties within one month of this order or as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lotta & Lotta (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3435 of 2013

Ms Lotta

Applicant

And

Mr Lotta

Respondent

REASONS FOR JUDGMENT

On 17 July 2015 reasons for judgment were delivered in relation to the wife’s application for enforcement of an order for spousal maintenance made on 14 November 2013 (Lotta & Lotta (No 2) [2015] FamCA 551).
Orders were made in the following terms:
(1)That the amount owing by the husband to the wife by way of spousal maintenance as ordered on the 14 November 2013 is $14,800.
(2)That the husband pay $14,800 within 14 days from this date to the wife or as she may otherwise direct the husband in writing.
(3)In default of the husband paying the sum provided for in Order 2 the wife is appointed trustee for sale of the whole of husband’s public company shareholdings in IAG and AMP at the best price reasonably obtainable and for the purposes of this order the said shares shall vest in the wife and the wife shall thereupon pay the proceeds of sale as follows:
(a) In payment of $14,800…

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 Lotta and Lotta (No 3)

Details

AGLC: Lotta and Lotta (No 3) [2015] FamCA 695
Case: [2015] FamCA 695
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the matter of *Lotta and Lotta (No 3)*, Foster J of the Federal Circuit Court of Australia considered an application for costs following earlier proceedings. The dispute concerned the wife's costs of and incidental to an Enforcement Application filed on 5 February 2015, as well as the costs of the subsequent costs application itself.

The primary legal issue before the court was the apportionment of costs between the parties. Specifically, the court was required to determine the extent to which the husband should be ordered to pay the wife's costs associated with the Enforcement Application and the costs application.

Foster J ordered that the husband pay 80 per cent of the wife's costs of and incidental to the Enforcement Application filed on 5 February 2015, including the costs of the costs application. These costs are to be paid on a party/party basis, either as agreed between the parties within one month of the order or as assessed by the court.

Orders

Orders of the court

That the husband pay 80 per cent of the wife’s costs of and incidental to the Enforcement Application filed on 5 February 2015, including this costs application, on a party/party basis as agreed between the parties within one month of this order or as assessed.

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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