Makaral and Makaral - [2017] FamCA 126

FAMILY COURT OF AUSTRALIA

MAKARAL & MAKARAL

[2017] FamCA 126

FAMILY LAW – COSTS – Application for indemnity costs against wife in respect of the wife’s dismissed application to set aside consent orders as to property under s 79A – Where wife’s application was by consent dismissed – Where discussion of general principles – Whether there are justifying circumstances for a costs order to be made – Whether there are grounds for awarding indemnity costs – Where husband fails to comply with Rule 19.08(3) – Where costs order made on party/party basis

Family Law Act 1975 (Cth) ss 79A, 117, 117(1), 117(2) and 117(2A)
Family Law Rules 2004 (Cth) rr 19.08(3), 19.18

Bele & Vaughan (Costs) [2012] FamCAFC 198
Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
D & D (Costs) (No. 2) [2010] FamCAFC 64
Degmam v Wright (No 2) [1983] 2 NSWLR 354;
Fitzgerald (as child representative forA (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] 81 ALR 397
Hawkins & Roe [2012] FamCAFC 77
Hobartville Stud v Union Insurance Co. (1991) 25 NSWLR 358
I and I (No 2) (1995) FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Limousin & Limousin [2007] FamCAFC 1178
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311
Ragatta Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court,
3 May 1991)
Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Mr Makaral

RESPONDENT:

Ms Makaral

FILE NUMBER:

PAC

5367

2010

DATE DELIVERED:

8 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Chand of Rajesh Chand & Associates

SOLICITOR FOR THE RESPONDENT:

Ms Stouppos of Slater & Gordon Lawyers

Orders

That the wife pay the husband’s costs of and incidental to these proceedings including costs of this costs application on a party/party basis as agreed within one month from the date of these orders or failing agreement as assessed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Makaral & Makaral has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5367 of 2010

Ms Makaral

Applicant

And

Mr Makaral

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 Makaral and Makaral

Details

AGLC: Makaral and Makaral [2017] FamCA 126
Case: [2017] FamCA 126
Decision Date: 8 March 2017

CaseChat Overview and Summary

In the matter of *Makaral and Makaral*, Foster J of the Federal Circuit Court of Australia was required to determine an application for costs. The specific nature of the underlying dispute between the parties, the wife and the husband, is not detailed in the provided text, but the application concerned the costs of and incidental to those proceedings, including the costs of the costs application itself.

The central legal issue before the Court was the determination of which party should bear the costs of the proceedings and on what basis. The Court was tasked with deciding whether to order one party to pay the other's costs and, if so, whether those costs should be assessed on a party/party basis or another basis.

Foster J ordered that the wife pay the husband’s costs of and incidental to the proceedings, including the costs of the costs application, on a party/party basis. These costs were to be agreed upon by the parties within one month from the date of the orders, or failing agreement, to be assessed by the Court.

Orders

Orders of the court

That the wife pay the husband’s costs of and incidental to these proceedings including costs of this costs application on a party/party basis as agreed within one month from the date of these orders or failing agreement as assessed.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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