Mercer & Mercer (No 2) - [2022] FedCFamC2F 62

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mercer & Mercer (No 2) [2022] FedCFamC2F 62

File number: SYC 7021 of 2017

Judgment of: JUDGE KEMP

Date of judgment: 28 January 2022

Catchwords: FAMILY LAW – costs – where offers were made but not accepted – costs awarded on a party-party basis – costs awarded for the costs application

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 12, sch 3, rr 12.03 &12.08

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth) r 4.01, sch 1

Cases cited:
Braithwaite & Braithwaite [2007] FamCA 468

Brown v Brown [1998] FamCA 115

Browne v Green (2002) FLC 93-115

Cachia v Hanes [1994] 179 CLR 403

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Collins & Collins (1985) FLC 91-603

Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 202; [1988] 81 ALR 397

In the Marriage of Harris (1987) FLC 91-822

In the Marriage of Marinko (1983) 8 FamLR 49

In the Marriage of Murray (1990) FLC 92-173

In the Marriage of Rouse (1981) FLC 91-073

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey(1990) 170 CLR 534

Lenova & Lenova (Costs) [2011] FamCAFC 141

Penfold v Penfold (1980) 144 CLR 311

Penfold & Penfold (1980) FLC 90-800

Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)

Robinson & Higginbotham (1991) FLC 92-209

Sfakianakis & Sfakianakis [2019] FamCAFC 54

Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)

Division: Division 2 Family Law

Number of paragraphs: 99

Date of last submission/s: 25 October 2021

Date of hearing: In Chambers

Place: Sydney

Counsel for the Applicant: Ms Gillies SC

Solicitor for the Applicant: Tebbutt Lawyers

Counsel for the First Respondent: Mr Gould

Solicitor for the First Respondent: Murphy Lyons Lawyers

Solicitor for the Second Respondent: Sexton Family Law
ORDERS

SYC 7021 of 2017

BETWEEN:
MS MERCER

Applicant

AND:
MR MERCER

First Respondent

MS JORDAIN

Second Respondent

order made by:

JUDGE KEMP

DATE OF ORDER:

28 January 2022

THE COURT ORDERS THAT:
1.Leave be granted for the husband to rely on his Response and Affidavit filed on 23 August 2021, with such time for filing extended to 23 August 2021.
2.Within 30 days of today’s date, the husband is to pay the wife the sum of $63,717.43.
3.Within 30 days of today’s date, the husband is to pay Ms Jordain the sum of $64,480.78.
4.The stay of orders 3 and 4 of 30 April 2021, made on 20 May 2021, is varied to effect the implementation of orders 2 and 3 above, and upon compliance with those orders, the stay orders are discharged.
5.All outstanding applications are, otherwise, dismissed.
6.The matter is, otherwise, removed from the active pending cases list.

Note: The form…

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 Mercer & Mercer (No 2)

Details

AGLC: Mercer & Mercer (No 2) [2022] FedCFamC2F 62
Case: [2022] FedCFamC2F 62
Decision Date

CaseChat Overview and Summary

This case involved a property settlement and costs application between the parties. The court was required to decide whether the husband should pay the wife's and Ms Jordain's costs on an indemnity basis, and if not, what basis the costs should be paid on. The court also had to consider whether the husband could rely on filed responses and affidavits which had been submitted late. The court found that the husband's late material could be relied upon, as there were reasonable explanations for the delay. In relation to the costs applications, the court found that the husband's conduct throughout the proceedings was obstructive and disruptive. The court found that the husband had rejected reasonable offers of settlement which, if accepted, would have resulted in lower costs for the parties. The court found that the husband's position against Ms Jordain was without merit and that he had pursued an argument which was not reasonably arguable. The court found that there were sufficient justifying circumstances to ground a costs order in the wife's and Ms Jordain's favour. However, the court found that the circumstances did not warrant an indemnity costs order. Instead, the wife's costs were to be paid on a party-party basis and Ms Jordain's costs were to be paid on a special costs basis. The husband was ordered to pay the wife $63,717.43 and Ms Jordain $64,480.78 within 30 days of the date of the orders.

Orders