PABST & PABST (No.3)

[2021] FCCA 191

FEDERAL CIRCUIT COURT OF AUSTRALIA

PABST & PABST (No.3) [2021] FCCA 191

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 117

Family Law Rules 2004 (Cth), rr.1.10, 19.18, 21.02, 21.03, 21.10

Cases cited:

Colgate Palmolive Co v Cussons Pty Ltd [1993] 46 FLR 225

Fewin Pty Ltd v Burke (No.3) [2017] FCA 693

Graft & McCormick (Costs) [2018] FamCAFC 82

Applicant: MR PABST

Respondent: MS PABST

File Number: DGC 4210 of 2018

Judgment of: Judge Burchardt

Hearing date: On the papers

Date of Last Submission: 29 January 2021

Delivered at: Dandenong

Delivered on: 11 February 2021

REPRESENTATION

Counsel for the Applicant: Not denoted

Solicitors for the Applicant: Wl Lawyers

Counsel for the Respondent: Mr Trim

Solicitors for the Respondent: Robert Wood and Associates

ORDERS

1. The applicant husband pay the wife’s costs fixed at $60,000.

IT IS NOTED that publication of this judgment under the pseudonym Pabst & Pabst (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4210 of 2018

MR PABST

Applicant

And

MS PABST

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the respondent wife seeks an order that the applicant to the original proceedings pay her costs in the sum of $137,500, together with costs of the costs application itself in the sum of $2500.  The husband resists any costs order and, in the alternative, submits that costs should not be awarded on what in effect is an indemnity basis.

2. For the reasons that follow, while I am not unsympathetic in principle to the wife’s application, I think the sum claimed is simply excessive.  Pursuant to the Court’s relevant powers, I am going to order the husband to pay the wife’s costs fixed in a sum of $60,000.

The Relevant History

1. The husband filed his initiating application on 14 December 2018.  Thereafter, both parties filed very extensive affidavit material and the matter ultimately came on for trial on 17 and 18 September 2020. 

2. Before that, however, the wife took out an application in a case seeking the summary dismissal of the husband’s application pursuant to section 45A of the Family Law Act1975 (Cth) (“the Act”). That application was heard on 17 July 2020 and on 23 July 2020 I dismissed the application, but reserved the costs. It should be noted that the husband’s originating application sought to set aside consent orders made in the Family Court of Australia on 6 March 2017 and that there be an adjustment to the parties’ interest in property.

3. In the July 2020 judgment, I noted, at paragraphs 4 and 5, the copious affidavit material the parties had filed, and the delays caused by problems with tax returns.  I noted that the matter arose out of consent orders initially rejected by Registrar Mestrovic by letter dated 17 January 2017, which the husband said he did not receive.  At paragraph 12, I observed:

   His counsel did not shrink as I understand the matter…