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Naidu & Seth (No 2)

Naidu & Seth (No 2)

Case [2023] FedCFamC2F 106 8 February 2023

Admissibility of Evidence

Specific Performance

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Naidu & Seth (No 2) [2023] FedCFamC2F 106

File number(s): PAC 1632 of 2018

Judgment of: JUDGE OBRADOVIC

Date of judgment: 8 February 2023

Catchwords: FAMILY LAW – COSTS – Application for indemnity costs – Whether circumstances justifying costs order - Costs order made in accordance with scale

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Cases cited:
Cochrane & Cochrane [2012] FMCAfam 984

Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Collins & Collins [1985] FamCA 15

Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364

Greedy and Greedy [1982] FamCA 41

I & I (No.2) [1995] FamCA 80

Jensen &Jensen [1982] FamCA 57

Kohan & Kohan [1992] FamCA 116

Latoudis v Casey [1990] HCA 59

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784

Naidu & Seth [2021] FedCFamC2F 229

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158

Penfold & Penfold [1980] HCA 4

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

Renald & Renald (Costs) [2018] FamCAFC 4

Stasiuk & Guild [2021] FamCAFC 62

Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225

Division: Division 2 Family Law

Number of paragraphs: 25

Date of last submission/s: 22 December 2022

Date of hearing: On the papers

Place: Parramatta

Solicitors for the Applicant: Juris Australia Lawyers

Solicitors for the Respondent: Zra Lawyers
ORDERS

PAC 1632 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NAIDU

Applicant

AND:
MS SETH

Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

8 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Within 28 days the Applicant pay the Respondent’s costs in the amount of $15,520.73.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Naidu & Seth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

On 25 October 2021, the Court made orders and delivered its judgment in respect of Mr Naidu’s application made pursuant to s.79A Family Law Act 1975 (Cth) (“Act”) to set aside property orders made by consent…

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 Naidu & Seth (No 2)

Details

AGLC: Naidu & Seth (No 2) [2023] FedCFamC2F 106
Case: [2023] FedCFamC2F 106
Decision Date

CaseChat Overview and Summary

This case involves an application for indemnity costs brought by Ms Seth against Mr Naidu. The proceedings in question are between the same parties and originated in 2018, with a prior costs order being made in 2021. The Court was required to determine whether the circumstances justified making an order for indemnity costs, and if so, the appropriate amount of such costs. The key legal issues revolved around the discretionary power of the Court to award costs in family law proceedings and the exceptional circumstances that would justify an indemnity costs order. The Court considered the relevant statutory provisions and case law, focusing on the factors outlined in s.117(2A) of the Family Law Act 1975 (Cth) and the principles governing indemnity costs.

The Court found that the circumstances justified making a costs order. The Court noted that Mr Naidu's application to set aside the consent orders made in 2018 was wholly unsuccessful and he made admissions regarding outstanding payments to Ms Seth. Although there was no evidence of offers to settle the substantive proceedings, the Court determined that there were sufficient grounds to justify an order for costs. The Court also noted that the parties had conducted themselves in a manner that left much to be desired throughout the lengthy proceedings. The Court exercised its discretion to order Mr Naidu to pay Ms Seth's costs in accordance with the scale, totalling $13,427.11, and also her costs of the costs application, amounting to $2,093.62. The total costs ordered were $15,520.73.

The Court made an order that Mr Naidu pay Ms Seth's costs in the amount of $15,520.73 within 28 days. The form of the order is subject to the entry in the Court's records. The Court's reasons for judgment were approved for publication under the pseudonym Naidu & Seth.

Orders