Martin and Harris and Ors

FAMILY COURT OF AUSTRALIA

MARTIN & HARRIS AND ORS [2010] FamCA 239

FAMILY LAW – COSTS – indemnity costs – loss said to be occasioned by conduct of the husband and husband’s solicitor – costs order against husband’s solicitor personally – intervenor and husband wholly unsuccessful in the proceedings

Family Law Act 1975 (Cth)
Family Law Rules 2004

Cassidy and Murray (1995) FLC ¶92-633
In the marriage of Collins (1985) FLC ¶91-603

APPLICANT / WIFE: Ms Martin

1^st RESPONDENT / HUSBAND: Mr Harris

2^ND RESPONDENT: Mr Z

3^RD RESPONDENT / INTERVENOR: Mr R

FILE NUMBER: SYC 1251 of 2007

DATE DELIVERED: 11 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Broun QC

SOLICITOR FOR THE 1^ST RESPONDENT: Mr Z

SOLICITOR FOR THE 2^ND RESPONDENT: Mr Killalea

SOLICITOR FOR THE INTERVENOR/
3^RD RESPONDENT:
Mr Orlizki

Orders

1. The Third Respondent is to pay the Applicant’s costs of and incidental to the Intervenor’s application assessed in the sum of $20,000.

2. The Second Respondent is to pay on account of the Applicant’s costs the sum of $20,000.

3. The First Respondent is to pay the Applicant’s costs assessed in the sum of $203,211.

IT IS NOTED that publication of this judgment under the pseudonym Martin & Harris and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1251 of 2007

MS MARTIN

Applicant / Wife

And

MR HARRIS

1^st Respondent / Husband

And

MR Z

2^nd Respondent

And

MR R

3^rd Respondent / Intervenor

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings bought by the wife for orders for the payment of her costs of and incidental to certain proceedings commenced by her seeking to enforce an order for alteration of interests in property and opposing an application under section 79A of the Family Law Act 1975 (“the Act”) seeking to set aside that order.

2. The proceedings were ones to which the third respondent, Mr R, became a party.  He filed an application seeking orders for the repayment of a debt he asserted was due to him by the husband and wife.  That application was opposed by the wife and not opposed by the husband.

3. The application of the wife seeks orders for costs against each of the husband, the husband’s solicitor and the intervenor.

4. The order for costs sought against all parties is sought on the basis that the costs order be made as a percentage of the costs actually incurred by the wife in the proceedings.  In particular the wife seeks orders that:

   a)The husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis, assessed in the sum of $142,301.69;

   b)The husband’s solicitor pay the wife’s costs of and incidental to these proceedings on an indemnity basis, assessed in the sum of $61,907.03; and

   c)The…