Odell & Odell (No 2)

Case [2023] FedCFamC1F 884

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Odell & Odell (No 2) [2023] FedCFamC1F 884

File number(s): NCC 277 of 2021
Judgment of: CAREW J
Date of judgment: 20 October 2023
Catchwords: FAMILY LAW – COSTS – Application brought against the husband by the second and third respondents – Where the substantive proceedings were ordered to proceed by way of pleadings – Where the husband failed to file Points of Claim despite having over a year to do so – Where several Court appearances could have been avoided with some co-operation from the Husband – Where the second and third respondent incurred substantial legal fees – Where the claims against the second and third respondents were dismissed and they were removed as parties – Where the appropriate quantum in the circumstances is $100,000 with payment to be stayed until 60 days after the finalisation of proceedings
Legislation:

 Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.02, 12.08, 12.13, 12.17
Cases cited:

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

Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92–340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Nada & Nettle (Costs) (2014) FLC 93–612

Odell & Odell [2023] FedCFamC1F 717

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

Penfold v Penfold (1980) 144 CLR 311

Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6

Number of paragraphs: 35
Date of last submission/s: 29 September 2023
Date of hearing: Determined in chambers
Place: Brisbane
Counsel for the Applicant: Mr Drysdale KC
Solicitor for the Applicant: Nash Allen Williams & Wotton
The First Respondent: Litigant in Person
Counsel for the Second and Third Respondents: Ms Murphy
Solicitor for the Second and Third Applicants: HopgoodGanim Laywers

ORDER

NCC 277 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ODELL

Applicant
AND:

MR ODELL
First Respondent

MR B ODELL
Second Respondent

MR C ODELL
Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:

1.The first respondent pay the costs of the second and third respondents in the fixed sum of $100,000 within 60 days of the finalisation of proceedings number NCC277/2021.

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…

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AGLC
Odell & Odell (No 2) [2023] FedCFamC1F 884
Case
[2023] FedCFamC1F 884
Decision Date

CaseChat Overview and Summary

The case of Odell & Odell (No 2) concerns a costs application brought by the second and third respondents against the husband. The primary dispute was over the substantial legal fees incurred by the second and third respondents, which arose from the husband's failure to file Points of Claim within the stipulated time frame, despite having over a year to do so. Additionally, several court appearances could have been avoided if the husband had shown some cooperation. The substantive proceedings were ordered to proceed by way of pleadings, but the husband's claims against the second and third respondents were dismissed, and they were subsequently removed as parties.

The court was tasked with determining the appropriate quantum of costs to be awarded under the Family Law Act 1975 and the Federal Circuit and Family Court of Australia Act 2021. The court considered various factors, including the financial circumstances of the parties, their conduct during the proceedings, and the husband's complete lack of success in his claims. The court noted that impecuniosity alone is not a barrier to ordering costs, and it had the power to assess costs on an indemnity basis. Given the husband's failure to cooperate and the resulting unnecessary expenses, the court found it just to order the husband to pay $100,000 within 60 days of the finalisation of the proceedings.

The reasoning of the court was based on the clear lack of cooperation from the husband, which led to unnecessary costs for the second and third respondents. The court emphasised that each party generally bears their own costs but can make a costs order where circumstances justify it. The court concluded that the husband's conduct warranted such an order, and the payment would be stayed until 60 days after the finalisation of the proceedings. The final order mandated the husband to pay the costs of the second and third respondents in a fixed sum of $100,000.

Orders

Orders of the court

1. The first respondent pay the costs of the second and third respondents in the fixed sum of $100,000 within 60 days of the finalisation of proceedings number NCC277/2021.

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.

Background

Background to the litigation

The husband opposes any order for costs against him but if an order is made, seeks that time to pay occur after the finalisation of ongoing property proceedings between him and the wife. BACKGROUND The relevant background to this matter is set out in my reasons for judgment dated 25 August 2023 (“the judgment”) at [5] – [16],[1] and should be read with these reasons. The husband was wholly unsuccessful in his application for interim orders for the reasons explained in the judgment at [28] – [41] and his claim for final relief as against Mr B Odell and Mr C Odell was dismissed for the reasons explained in the judgment at [46] – [52].[1] Odell & Odell [2023] FedCFamC1F 717. HOW COSTS APPLICATIONS ARE DETERMINED In this Court, each party generally bears their own costs.[2] However, where there are circumstances that justify an order for costs, the Court can make such order as is considered just having regard to the matters contained in relevant subsections of s 117 of the Family Law Act 1975 (Cth) (“the Act”) and applicable Rules of Court (s 117(2)). [2] Family Law Act1975 (Cth) s 117(1). The list of matters to which the Court must have regard when determining a costs application are set out in s 117(2A) of the Act and since the commencement of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) on 1 September 2021, there are additional matters to which the Court must have regard.[3] [3] The notation to s 117(2) of the Act refers to s 69(4)(d) and (e) of the FCFCOA Act. The matters set out in s 117(2A) of the Act are as follows: (a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g)such other matters as the court considers relevant. When considering the factors set out in s 117(2A) of the Act, it is sufficient for one factor to be present.[4] [4] Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294 at 301, [41]. Impecuniosity, of itself, is not a bar to making a costs order.[5] [5] Nada & Nettle (Costs) (2014) FLC 93–612 at 79,589, [11]; see also Lenova & Lenova (Costs) [2011] FamCAFC 141 at 3, [12]. An additional source of power to award costs in an appropriate matter is to be found in s 69(4)(d) and (e) of the FCFCOA Act, which empowers the Court to award costs against a party and the costs awarded are to be assessed on an indemnity basis or otherwise.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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