NIKAS & ANTHIS (No.2)

[2015] FCCA 2309

FEDERAL CIRCUIT COURT OF AUSTRALIA

NIKAS & ANTHIS (No.2) [2015] FCCA 2309

Catchwords:
FAMILY LAW – Costs – Applicant seeks an order for the Respondent to pay the Applicant’s costs of the proceedings from a specified time – where the Applicant made an offer of settlement – where the offer of settlement is similar to the final determination of this Court – factors under s.117(2A) do not warrant such an order and each party to bear their own costs of the proceedings.

Legislation:

Family Law Act 1975 (Cth), ss.117(1), 117(2), 117(2A),117(2A)(a),117(2A)(c),

117 (2A)(f), 117(2A)(g)

Calderbank v Calderbank [1975] 3 All ER 333

Penfold v Penfold (1979 – 1980) 144 CLR 311
Kelly & Kelly (No 2) (1981) FLC 91-108

Pennisi & Pennisi (1997) FLC 92-774
Telfer & Telfer (1996) FLC 92-688
Lennon & Lennon (Costs) [2012] FamCA 116
Weiman & Paige (Costs) [2014] FamCA 173

Applicant: MR NIKAS

Respondent: MS ANTHIS

File Number: MLC 10460 of 2013

Judgment of: Judge Bender

Hearing date: 28 April 2015

Date of Last Submission: 14 August 2015

Delivered at: Melbourne

Delivered on: 27 August 2015

REPRESENTATION

Counsel for the Applicant: Mr O’Connor

Solicitors for the Applicant: Aaron Eidelson

Counsel for the Respondent: Mr Hall

Solicitors for the Respondent: Barbayannis Lawyers

ORDERS

1. The Husband’s application for costs in these proceedings be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Nikas & Anthis (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10460 of 2013

MR NIKAS

Applicant

And

MS ANTHIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The judgment in relation to property proceedings between the parties was handed down on 17 July 2015.

2. Having excluded the Wife’s inheritance from the estate of her late Mother from the pool of matrimonial assets to be divided between the parties, I determined the Husband should receive 22.5% of the remaining matrimonial assets, an amount of $303,300.

3. The parties had also agreed there be a superannuation splitting order equalising the parties superannuation entitlements and orders were made that from the Wife’s current superannuation a base amount of $47,402 be adjusted in the Husband’s favour.

4. On 2 October 2014 the Husband’s solicitor forwarded correspondence to the Wife’s solicitor offering to resolve the matter as follows:

   In order to avoid further costs associated with this litigation, the husband proposes the following to settle the proceedings and obtain final property orders:

   1.The wife pay to the husband $337,500.00.

   2.After payment of $337,500.00 to the husband, the wife would be entitled to retain all remaining real estate.

   3.The husband would retain the liabilities in his name (at least $120,000 including legal costs incurred to date) and the wife would retain responsibility for her liabilities.

   4.The husband and wife would each retain their motor vehicle.

   5.The wife would retain her superannuation.

   6.All remaining assets in the possession or control of the parties, remain in each party’s possession or control.

   7.The parties will seek final property orders by…