Manesh and Manesh (No 3)

Case [2020] FamCA 952


FAMILY COURT OF AUSTRALIA

MANESH & MANESH (NO 3) [2020] FamCA 952
FAMILY LAW – COSTS – unsuccessful stay application – wife and ICL seeking costs on the basis that the stay application was wholly unsuccessful – indemnity costs ordered.
Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18
Fitzgerald v Fish (2005) 33 Fam LR 123
In the Marriage of Wilson (1989) 13 Fam LR 205
Manesh & Manesh [2020] FamCA 792
Manesh & Manesh (No. 2) [2020] FamCA 904
Medlon & Medlon (No 6) (2015) 54 Fam LR 1
APPLICANT: Ms Manesh
RESPONDENT: Mr Manesh
INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors
FILE NUMBER: MLC 8955 of 2019
DATE DELIVERED: 19 November 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Wilson J
HEARING DATE: On the papers
DATE OF LAST SUBMISSIONS: 11 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Hession
SOLICITOR FOR THE APPLICANT: Freeman Family Law
COUNSEL FOR THE RESPONDENT: Not applicable
SOLICITOR FOR THE RESPONDENT: Not applicable
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

Orders

  1. On or before 4pm on 18 January 2021 the respondent is to pay the applicant the sum of $6,308 by way of indemnity costs.

  2. On or before 4pm on 18 January 2021 the respondent is to pay the independent children’s lawyer the sum of $2,765 by way of indemnity costs.

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 Manesh & Manesh 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 MELBOURNE

FILE NUMBER: MLC 8955 of 2019

Ms Manesh

Applicant

And

Mr Manesh

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

  1. These are my reasons for making a costs order on the respondent’s unsuccessful stay application, the subject of my decision in Manesh & Manesh (No. 2).[1]  In that decision I dismissed Mr Manesh’s application to stay my decision in Manesh & Manesh.[2]

  2. For the reasons that follow in my view the wife and ICL are entitled to an order under s 117(2) that the respondent pay the wife’s and ICL’s costs of the respondent’s unsuccessful stay application.

  3. In Fitzgerald v Fish[3] it was held that any one of the grounds of s 117(2A)(a) to (g) may support a costs order under s 117(2) with the consequence that an order that deviates from s 117(1) can be made. In the absence of an order under…

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Details
AGLC
Manesh and Manesh (No 3) [2020] FamCA 952
Case
[2020] FamCA 952
Decision Date

CaseChat Overview and Summary

In *Manesh and Manesh (No 3)*, heard by Wilson J, the proceedings concerned an application for indemnity costs. The applicant sought these costs against the respondent.

The central legal issue before the court was whether the respondent should be ordered to pay the applicant's and the independent children's lawyer's costs on an indemnity basis.

Wilson J determined that the respondent should pay the applicant's costs on an indemnity basis, as well as the costs of the independent children's lawyer on an indemnity basis. The court ordered the respondent to pay the applicant the sum of $6,308 and the independent children's lawyer the sum of $2,765, both by way of indemnity costs, on or before 4pm on 18 January 2021.

Orders

Orders of the court

1.

On or before 4pm on 18 January 2021 the respondent is to pay the applicant the sum of $6,308 by way of indemnity costs.

2.

On or before 4pm on 18 January 2021 the respondent is to pay the independent children’s lawyer the sum of $2,765 by way of indemnity costs.

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

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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