Niem & Tong (No. 3)

[2020] FamCA 1075

FAMILY COURT OF AUSTRALIA

Niem & Tong (No. 3) [2020] FamCA 1075

File number(s):

PAC 3572 of 2014

Judgment of:

FOSTER J

Date of judgment:

18 December 2020

Catchwords:

FAMILY LAW – COSTS – Where order for indemnity costs – Where order for short submissions as to quantum of such costs – Where costs ordered in fixed sum.

Legislation:

Family Law Rules 2004 (Cth) r 19.18(1)

Cases cited:

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Number of paragraphs:

9

Date of last submission/s:

16 October 2020

Date of hearing:

2 October 2020

Place:

Parramatta

Counsel for the Applicant:

Mr Givney

Solicitor for the Applicant:

Maclarens Lawyers

Respondent – self‑represented litigant:

The Respondent did not attend

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

PAC 3572 of 2014

BETWEEN:

MS NIEM

Applicant

AND:

MR TONG

Respondent

MS WEAVER

Independent Children’s Lawyer

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	17 DECEMBER 2020

THE COURT ORDERS THAT:

1.That the husband pay the wife’s costs of and incidental to her Application in a Case filed 22 September 2020 in the sum of $8,973 within one month from this date.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Niem & Tong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

FOSTER J

1. On 22 September 2020 the wife filed an Application in a Case seeking to be appointed as trustee of the parties’ self-managed superannuation fund.

2. On 2 October 2020, relevantly, orders were made as follows:

   9.E Pty Limited be removed as Trustee of the Tong Superannuation Fund.

   10.The wife Ms Niem be appointed Trustee of the Tong Superannuation Fund.

   THE COURT NOTES THAT

   11.In her capacity as Trustee of the said Fund the wife as trustee has such powers and obligations provided to her and imposed upon her pursuant to the Trust Deed of the said fund.

   12.In her capacity as Trustee, the wife has power to notify the occupier of the property at 3 G Street, Suburb H to provide a copy of the lease of those premises to the wife as Trustee of the Fund and that in her capacity as Trustee the wife may direct that all lease payments in respect of the said property be paid to CBA Bank account BSB … Account number …34 and the wife has power as Trustee to cause a sale of the said property.

   IT IS FURTHER ORDERED THAT

   13.The husband pay the wife’s costs of and incidental to this Application in a Case on an indemnity basis with a quantum of such costs reserved pending the receipt of short written submissions on behalf of the Applicant wife by no later than Friday, 16 October 2020.

3. Subsequently, the Court received short submissions from the wife as to the quantum of costs.

4. The wife’s costs total include the solicitor’s costs of and incidental to the subject application in the sum of $3,954.50 together with counsel’s fees for conferences and settling the application and affidavit in support and brief to appear on hearing totalling $4,500.

5. The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) which states:

   Method of calculation of costs

   (1)The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

6. It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at [162] that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.

7. In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

8. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93 748 at [130]:

   If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

9. In all the circumstances the sum sought is considered reasonable and an order will be made that the husband pay the wife’s costs of and incidental to the application in the sum of $8,973.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.

Associate:       

Dated:       18 December 2020