FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEADOWS & VANCE | [2016] FCCA 1814 |
| Catchwords: COSTS – Application for costs – where Respondent seeks costs of hearing that did not proceed due to illness of counsel for the Applicant – indemnity costs – party and party and party costs – costs certificate – where hearing had to be adjourned due to illness of Applicant’s Counsel – whether a costs certificate should issue under Federal Proceedings (Costs) Act 1981 (Cth), s.10(3) – whether costs should be assessed on an indemnity basis. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 90RA, 90RD, 90SF, 90SK, 90SL, 90SM, 117 Federal Proceedings (Costs) Act 1981 (Cth), s.10 |
| Cases cited: Bevan & Bevan (2013) 49 Fam LR 387; FLC 93-545;[2013] FamCAFC 116 |
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- AGLC
- MEADOWS & VANCE [2016] FCCA 1814
- Case
- [2016] FCCA 1814
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a property settlement should be made on a just and equitable basis, considering the contributions of both parties. A further issue was whether an adjustment should be made under section 90SF(3) of the *Family Law Act 1975* (Cth). The court also considered an application for costs, specifically whether indemnity costs should be awarded and if a costs certificate should issue under section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth) following an adjournment due to the illness of the applicant's counsel.
The court's reasoning, as reflected in the orders, indicates a division of assets and liabilities that largely reflects their separate possession and names. The applicant was awarded all personal property in her possession or name, including specific vehicles and financial assets, while the respondent received sole entitlement to the real property and his personal property. Both parties were ordered to indemnify each other in respect of liabilities in the other's name. The court also ordered the applicant to pay the respondent's costs thrown away due to the adjournment of a hearing on 1 December 2015, fixed at $5,136.00. Any further applications for costs were to be made by a specified date.
Orders
Orders of the court
1.
The Applicant is to be solely entitled to the exclusion of the Respondent to the all items of personal property in her possession or standing in her name including:
(a) The boat and replacement engine;
(b) Ford Falcon (omitted);
(c) Mitsubishi Pajero;
(d) Mobile home;
(e) All items of furniture and furnishings; and
(f) All bank accounts, insurance policies, superannuation interests and all other items currently in her sole name or possession.
2.
The Respondent is to be solely entitled to the exclusion of the Applicant to all of his right title and interest in the real property being Lot (omitted) in Deposited Plan (omitted) situate at and known as Property S in the State of New South Wales.
3.
The Respondent is to be solely entitled to the exclusion of the Applicant to the all items of personal property in his possession or standing in his name including:
(a) All motor vehicles including motor cycles;
(b) All items of furniture and furnishings; and
(c) All bank accounts, insurance policies, superannuation interests and all other items currently in his sole name or possession.
4.
The Applicant is to indemnify the Respondent and keep him indemnified in respect of all liabilities including mortgages, loans and credit card debts in her name.
5.
The Respondent is to indemnify the Applicant and keep her indemnified in respect of all liabilities including mortgages, loans and credit card debts in his name.
6.
The Applicant is to pay the Respondent’s costs thrown away in respect of the proceedings on 1 December 2015 fixed in the sum of $5,136.00 within six (6) months of the date of this Order.
7.
In the event that either party seeks an order that the other party should pay their costs of these proceedings then that party or parties must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and the basis upon which those costs are calculated by Monday 25 July 2016.
8.
All other Applications are dismissed.
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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