Lund & Whittall (No 3)

Case [2025] FedCFamC1F 287

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lund & Whittall (No 3) [2025] FedCFamC1F 287

File number(s): DNC 518 of 2022
Judgment of: BERMAN J
Date of judgment: 20 May 2025
Catchwords: FAMILY LAW – COSTS – Where judgment was delivered following final hearing – Where the applicant seeks that the respondent pay costs fixed in the sum of $150,000 on a party/party basis and pay the costs of this application – Where the respondent seeks that the application for costs be dismissed and the applicant pay the costs of this application – Where the applicant asserts that the respondent did not make full and frank disclosure – Section 117(2A) of the Family Law Act 1975 (Cth) – Consideration of the parties’ financial circumstances – Consideration of the parties’ conduct and the offers exchanged – Whether the applicant has been wholly unsuccessful – Costs order.
Legislation:

Family Law Act 1975 (Cth) s 117.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.01, 12.13, 12.17, 15.05.

Cases cited:

Bant & Clayton(Costs) [2016] FamCAFC 35,

Briese & Briese (1986) FLC 91-713,

Hadwick & Scadden (2020) FLC 93-973,

Lund & Whittall (No 2) [2025] FedCFamC1F 76,

Martin & Martin & Anor (No 2) [2014] FamCA 232,

Oriolo & Oriolo (1985) FLC 91-653,

Parke & the Estate of the late A Parke [2016] FLC 93-748,

Petrucci & Delos [2017] FamCA 1079.

Division: Division 1 First Instance
Number of paragraphs: 77
Date of hearing: 9 April 2025
Place: Adelaide
Counsel for the Applicant: Ms V. Farmer
Solicitor for the Applicant: AFL Withnalls Lawyers
Counsel for the Respondent: Mr K. Tredrea
Solicitor for the Respondent: McQueens Solicitors

ORDERS

DNC 518 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LUND

Applicant
AND:

MR WHITTALL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MAY 2025

THE COURT ORDERS THAT:

1.Mr Whittall (“the respondent”) do pay Ms Lund’s (“the applicant”) legal fees, costs and disbursements fixed in the sum of FIFTY THOUSAND DOLLARS ($50,000) within twelve (12) months of the date of this Order.

2.All extant applications are hereby dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS…

Continue reading Lund & Whittall (No 3)

Sign in free to access the full text

Details
AGLC
Lund & Whittall (No 3) [2025] FedCFamC1F 287
Case
[2025] FedCFamC1F 287
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms. Lund and Mr. Whittall engaged in a protracted dispute that culminated in a final hearing. The primary focus of the case was on the costs incurred by Ms. Lund, who sought an order for $150,000 in costs from Mr. Whittall, arguing that his failure to provide full and frank disclosure was a significant factor in the escalation of the proceedings. Conversely, Mr. Whittall sought to have the application for costs dismissed and instead for Ms. Lund to bear the costs of the application. The court had to consider the financial circumstances of both parties, their conduct throughout the proceedings, and the offers that had been exchanged.

The court determined that while the non-disclosure by Mr. Whittall was a factor, it did not justify the full amount sought by Ms. Lund. The court found that the applicant had not been wholly unsuccessful and that the costs should be apportioned in a manner that reflected the contributions of both parties to the length and complexity of the proceedings. The court concluded that the respondent should pay one third of the applicant's costs, resulting in a total of $50,000. Additionally, the court granted the respondent 12 months to pay this sum, taking into account his ongoing financial obligations.

The court's final order was that Mr. Whittall pay Ms. Lund $50,000 within 12 months of the date of the order. All other pending applications were dismissed. The form of the order is subject to formal entry in the court's records, and any minor errors in the reasons for judgment may be subject to review or correction under the relevant federal rules.

Orders

Orders of the court

DNC 518 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LUND

Applicant

AND:

MR WHITTALL

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 MAY 2025

THE COURT ORDERS THAT:

1. Mr Whittall (“the respondent”) do pay Ms Lund’s (“the applicant”) legal fees, costs and disbursements fixed in the sum of FIFTY THOUSAND DOLLARS ($50,000) within twelve (12) months of the date of this Order.

2. All extant applications are hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

As discussed, until the further disclosure was made by the respondent at the commencement of the final hearing and the Court was able to assess the evidence of Mr N as to the inadequacy of the respondent’s bookkeeping and financial management, it would not have been reasonable for the applicant to be required to accept the position adopted by the respondent.CONCLUSION I find that there should be an order for costs in favour of the applicant however, only limited assistance has been provided to assist in the determination of quantum. I note that the total fees of the applicant are in the sum of $218,083. The applicant seeks an order for costs in the specific amount of $150,000 calculated as a party/party basis. It could not be said that the entirety of the proceedings were occasioned as a result of the non-disclosure by the respondent. Doing the best that I can, and having regard to the affidavit evidence relied upon by the applicant, together with the history of the conduct of the proceedings, I consider that the respondent should pay the applicant’s costs of the proceedings on the basis of one third of the party/party charges resulting in the sum of $50,000.Time allowed to pay As discussed in the judgment at [148], there is a paucity of evidence as to the consequences to the respondent if he is not given sufficient time to pay the costs order. Whilst I do not consider that 24 months is appropriate, it is reasonable that the respondent be given 12 months in which to pay given that he has the ongoing obligation under the final orders to pay the mortgage instalments as and when they fall due with the intention that the loan will be discharged within 24 months of judgment. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.