Lotta and Lotta (No 4) - [2015] FamCA 871

FAMILY COURT OF AUSTRALIA

LOTTA & LOTTA (NO 4)

[2015] FamCA 871

FAMILY LAW – COSTS – INDEMNITY COSTS - where the husband was unsuccessful in his application for a declaration that a financial agreement be declared a binding financial agreement for the purposes of the Family Law Act 1975 - where the husband wholly unsuccessful – where the wife seeks costs on an indemnity 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 an indemnity basis.

Family Law Act 1975 (Cth) ss 117, 117AA, 117AC, 118
Family Law Rules 2004 (Cth) rr 1.21, 19.08, 19.18

Bele & Vaughan (Costs) [2012] FamCAFC 198
Lotta & Lotta (No 2) [2015] FamCA 360.
Kohan & Kohan (1993) FLC 92-340
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:

20 October 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beck

SOLICITOR FOR THE APPLICANT:

Thurlows Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Samuel Jones Legal Services

Orders

That the husband pay on an indemnity basis the wife’s costs of and incidental to his Application in a Case filed 12 February 2015 seeking a declaration that the financial agreement signed by the parties be declared a binding financial agreement under the Family Law Act 1975 and the present costs application, except for the wife’s costs of appearance on 15 September 2015, such costs to be as agreed within one month from this date or otherwise in default of agreement as assessed with such costs to be paid within three months of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lotta & Lotta (No 4) 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

The application for determination is the wife’s application for costs filed on 18 June 2015 arising from proceedings relating to a purported binding financial agreement entered into between the parties on 14 April 2009.
Reasons for judgment in respect of that issue were delivered on 18 May 2015 and a declaration was made that the purported financial agreement was not a binding financial agreement for the purposes of the Family Law Act 1975 (Cth) (“the Act”): (Lotta & Lotta (No 2) [2015] FamCA 360)
The present application for costs arises out of the Court’s determination as to the financial agreement.
The husband in submissions for…

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 4)

Details

AGLC: Lotta and Lotta (No 4) [2015] FamCA 871
Case: [2015] FamCA 871
Decision Date: 20 October 2015

CaseChat Overview and Summary

The case of *Lotta and Lotta (No 4)* concerned an application by the husband seeking a declaration that a financial agreement signed by the parties be declared a binding financial agreement under the *Family Law Act 1975*. The wife sought costs in relation to this application. The decision was made by Foster J.

The primary legal issue before the court was the wife's entitlement to costs, specifically whether those costs should be awarded on an indemnity basis.

Foster J ordered that the husband pay the wife's costs of and incidental to his application on an indemnity basis. This order excluded the wife's costs of appearance on 15 September 2015, which were to be agreed between the parties or assessed if agreement could not be reached. The costs were to be paid within three months of agreement or assessment.

Orders

Orders of the court

That the husband pay on an indemnity basis the wife’s costs of and incidental to his Application in a Case filed 12 February 2015 seeking a declaration that the financial agreement signed by the parties be declared a binding financial agreement under the Family Law Act 1975 and the present costs application, except for the wife’s costs of appearance on 15 September 2015, such costs to be as agreed within one month from this date or otherwise in default of agreement as assessed with such costs to be paid within three months of agreement or assessment.

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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