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Marello and Marello (Costs)

Marello and Marello (Costs)

Case [2013] FamCA 868 5 September 2013

Costs

Offer and Acceptance

Remedies

Statutory Construction

Civil Procedure

Family Law

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FAMILY COURT OF AUSTRALIA

MARELLO & MARELLO (COSTS)

[2013] FamCA 868

FAMILY LAW – COSTS – where the husband seeks an order that the wife pay his costs of the property component of the proceedings on an indemnity basis – where the wife resists the application – where the husband made three offers to the wife all of which would have provided the wife with a better result than that which she ultimately received at trial – where the wife refused each such offer – where the wife says her refusal was legitimate – whether the presumption in s 117(1) ought be displaced –where the wife’s conduct in refusing the three offers warrants the making of an order for costs against her – whether the wife should pay costs on an indemnity basis – where that costs order confined to the property component of the proceedings – where wife ordered to pay 2/3 of the husband’s costs on a party and party basis.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Australian Securities and Investments Commission v Rich (2009) 236 FLR 1
Boylan v Collingwood-Smith [2010] NSWSC 651
Byron v Southern Star Group Pty Ltd (1995) 13 ACLC 301
C & C (1996) FLC 92-65

Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225

D & Y (1995) FLC 92-581
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Hitch & Hitch [2012] FamCAFC 124
Latoudis v Casey (1990) 170 CLR 534
Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage [2013] FamCAFC 105
R v Australian Broadcasting Tribunal; Ex parte Hardiman(1980) 144 CLR 13
Re B (Minors) (Contact) [1994] 2 FCR 812
Re Watson; Ex parte Armstrong (1976) FLC 90-059
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Marello

RESPONDENT:

Ms Marello

FILE NUMBER:

BRC

11438

2010

DATE DELIVERED:

5 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

29 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Jones McCarthy

Orders

IT IS ORDERED BY CONSENT THAT:

There be no order as to costs in respect of the Application in a Case filed by the husband on 5 June 2013 (which was dismissed on 11 June 2013).

IT IS ORDERED THAT:

The wife pay two-thirds (2/3) of the husband’s party and party costs of and incidental to the proceedings for settlement of property as agreed in writing between the parties or, failing agreement, as assessed on a party and party basis.
The Amended Application in a Case filed 19 July 2013 is dismissed.
Each party bear their own costs of and incidental to that Amended Application.

IT…

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 Marello and Marello (Costs)

Details

AGLC: Marello and Marello (Costs) [2013] FamCA 868
Case: [2013] FamCA 868
Decision Date

CaseChat Overview and Summary

In Marello and Marello (Costs), the husband sought an order that the wife pay his costs of the property component of the proceedings on an indemnity basis. The wife resisted this application. The dispute arose after a trial concerning property settlement and parenting orders, where the husband contended that he had made three offers to settle the property matters, all of which would have provided the wife with a better financial outcome than she ultimately received. The wife argued that her refusal of these offers was legitimate. The matter was heard in the Family Court of Australia before Murphy J.

The primary legal issues before the court were whether the presumption that each party bears their own costs under section 117(1) of the Family Law Act 1975 (Cth) ought to be displaced, and if so, whether the wife's conduct in refusing the husband's settlement offers warranted an order for costs against her. A further issue was whether any such costs order should be made on an indemnity basis, and if so, whether it should be confined to the property component of the proceedings. The court also considered the wife's assertion that any costs order would lead to her bankruptcy.

Murphy J reasoned that while applications for costs should not become "mini-trials," the husband's three settlement offers were significant factors. These offers, made prior to substantial trial preparation and costs being incurred, demonstrated a genuine desire by the husband to avoid litigation and its associated expenses. The court found that the wife's contentions regarding lack of disclosure by the husband, while familiar in high-conflict cases, were not ultimately pressed at trial in a way that affected the outcome. Consequently, the court determined that the husband's offers warranted an order for costs against the wife.

The court ordered that the wife pay two-thirds of the husband's costs on a party and party basis, confined to the property component of the proceedings. The court also made orders regarding other applications and a discrete issue concerning paragraph 51A of the minutes of order, providing a further opportunity for the parties to resolve that matter before it would be listed for hearing.

Orders