Mortimer (Jnr) and Mortimer (Snr)

[2016] FCCA 2763

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTIMER (JNR) & MORTIMER (SNR) [2016] FCCA 2763

Catchwords:
COSTS – Third party joined to primary proceedings between husband and wife – wholly unsuccessful as against third party – justifying circumstances – wide discretion – costs ordered.

Legislation:

Family Law Act 1975, ss.79, 117

Federal Circuit Court Rules, r.21.02
Federal Court Rules, r.40

Cases cited:

Braithwaite & Braithwaite [2007] FamCA 468
Coggan & Coggan [2012] FMCAfam 984

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

Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 FamLR 123
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Munday & Bowman (1997) FLC 92-784

Penfold & Penfold (1980) 144 CLR 311

Prantage & Prantage (2013) FLC 93-544
Re David Costs (1998) FLC 92-809
Wrensted & Eades [2016] FamCAFC 46

Applicant: MR MORTIMER (JNR)

Respondent: MR MORTIMER (SNR)

File Number: NCC 2048 of 2011

Judgment of: Judge Obradovic

Hearing dates: 6, 7, 8 August 2014; 20, 21 November 2014; 13 May 2014

Date of Last Submission: 30 August 2016

Delivered at: Parramatta

Delivered on: 3 November 2016

REPRESENTATION

Counsel for the Applicant: Mr Ridley

Solicitors for the Applicant: Matthews Folbigg Pty Ltd

Counsel for the Respondent: Mr Hale

Solicitors for the Respondent: Toronto Legal

ORDERS

1. That within 90 days the Respondent pay to the Applicant costs in the amount of $49,310.

IT IS NOTED that publication of this judgment under the pseudonym Mortimer (Jnr) & Mortimer (Snr) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

NCC 2048 of 2011

MR MORTIMER (JNR)

Applicant

And

MR MORTIMER (SNR)

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this costs application is the son of the Respondent.

2. The primary Judgment, out of which this costs application arises commences as follows:

   (1)This is a matter in which there are competing property applications between the applicant wife and the respondent husband.  The second respondent son of the parties has sought to assert that a property claimed by the husband as being property of the husband and wife, be excluded as it is his (the son’s) property.  The second respondent has, accordingly, sought an order that the husband withdraw a caveat that the husband has placed upon that property.

3. That primary Judgment was delivered by Judge Donald on 7 June 2016.

4. By way of Application in a Case filed on 21 June 2016, the Applicant seeks an order “That the First Respondent pay the Applicant’s legal costs of and incidental to these proceedings.”

5. The Applicant was joined to the primary proceedings by way of an Amended Response filed by the Respondent on 6 June 2013.

6. The Applicant seeks an order for the payment in the amount of $90,127.36. It is in truth an application for indemnity costs, including indemnity costs of this costs application.

7. The starting position with respect to costs, as set out in s117 of the