Pejic & Pejic (No 3)
[2024] FedCFamC1F 81
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pejic & Pejic (No 3) [2024] FedCFamC1F 81
File number(s): CAC 559 of 2022 Judgment of: GILL J Date of judgment: 20 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – order for costs – Where the wife sought to amend her points of claim following the filing of submissions from the other parties in respect of the strike out claim – Where other parties seek costs on an indemnity basis and the wife concedes that she pay costs on a party/party basis – Held that wife’s failure to amend points of claim until after submissions had been filed was not sufficient to warrant departure from the usual costs award of party/party – Wife ordered to pay husband’s and second through fifth respondents’ costs on a party/party basis. Legislation: Family Law Act 1975 (Cth) – s 117 Cases cited: Quickley & Pelissier [2016] FamCAFC 124 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 20 February 2024 Place: Canberra Solicitor for the Applicant: Mr Warren, Andrew Warren Associates Solicitor for the First Respondent: Ms Santo, Santo Family Lawyers Solicitor for the Second, Third, Fourth and Fifth Respondents: Mr Wahhab, York Law Family Law Specialists ORDERS
CAC 559 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEJIC
Applicant
AND: MR PEJIC
First Respondent
PEJIC NOMINEES PTY LIMITED
Second Respondent
PEJIC HOLDINGS PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The wife, within seven days, pay at the direction of the solicitors for the husband the sum of $1,400 in respect of his costs thrown away.
2.Within seven days of today's date, the wife pay at the direction of the solicitors for the second through fifth respondents the sum of $5,380 in respect of their costs thrown away.
3.Subject to the wife’s compliance with orders 1 and 2, within 7 days of the date of these orders, the applicant wife is to file and serve her Amended Points of Claim.
4.Within 6 weeks of the applicant wife’s compliance with order 3 herein, the respondents are to file any Defence to Points of Claim.
5.That:
(a)Within 28 days of the date of these orders, the applicant wife and the first respondent husband are to cause a balance sheet to be filed with the court and for this to occur:
(i)the applicant wife to provide a first draft within 7 days of the date of these orders; and
(ii)the respondent husband to respond within 7 days of the applicant wife’s compliance with Order 5(a)(i) including any additional items and notes;
(iii)within 7 days of the husband’s compliance with that Order 5(a)(ii) the wife is to include her values for any additional items included by the husband and any additional notes which is then to served upon both the husband and the second through fifth respondents.
6.The applicant wife is to file and serve one consolidated trial affidavit, and an updated financial statement together with affidavits of any lay witnesses on which she intends to rely at hearing no later than 4.00 pm on 30 April 2024.
7.The first respondent husband is to file and serve one consolidated trial affidavit, and an updated financial statement together with affidavits of any lay witnesses on which he intends to rely at hearing no later than 4.00 pm on 21 May 2024.
8.The second through fifth respondents are to file and serve their trial affidavits together with affidavits of any lay witnesses on which they intend to rely at hearing no later than 4.00 pm on 15 June 2024.
9.Such affidavits are to comply with Part 8.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
10.Each party is to maintain an up-to-date schedule of the documents that that party has disclosed to any other party in the proceedings, including details of the nature of the documents that have been disclosed and the date on which the disclosure took place.
11.Seven days prior to any court date the parties are to exchange their schedules of disclosure with the other parties.
12.The matter will be relisted for further directions and a compliance check before a registrar of this court on a date to be fixed after 15 June 2024.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
In this matter an application is made by the first respondent husband and by the second through fifth respondents that their costs be paid on an indemnity basis in fixed amounts, within a period of seven days. That application occurs in a context where it has previously been conceded by the wife that she should pay costs, albeit on a party/party basis.
That costs concession and those costs applications relate to the circumstances in which the wife has been directed to and has filed a points of claim document, where a defence has been filed to the points of claim document, where it has been indicated, in particular by the second through fifth respondents, that there will be an application to strike out on the basis of the points of claim document that was filed by the wife and where on the indication being given, the wife did not indicate that she would seek to amend her points of claim. Where subsequently directions were given for the filing of submissions in respect of the strike out claim prior to the strike out claim being listed for hearing and where following the receipt of those submissions the wife has sought an indulgence from the court for the amendment of her points of claim. She has subsequently drafted such amended points of claim which are the subject of further orders made today by consent which will permit the amending of the points of claim as proposed by the wife.
That sets out the general circumstances by which the wife has conceded that she should pay costs in respect of the filing of material in relation to the strikeout application caused by the deficiencies in her initial points of claim document. The argument then revolves around whether or not the costs should be payable on an indemnity basis and whether they should be paid within seven days.
Before descending to those details, it should be observed that the wife accepts that the indemnity amount claimed by the husband of $2,820.95 and the corresponding party/party amount claimed by the husband of $1,400 is reasonable, and that the indemnity amount of $7,584.50 and the corresponding party/party amount claimed by the second through fifth respondents of $5,380 are again reasonable. That should not be taken to be a concession by the wife that the costs should be payable on an indemnity basis, merely that if they are so payable that the amounts claimed are not unreasonable.
The costs are firstly governed by s 117 of the Family Law Act 1975 which sets as the starting position that each party should bear their own costs. That can readily be moved past where there are justifying circumstances for the court making an award of costs. The existence of such justifying circumstances may be seen in the wife's appropriate concession that a costs award should be made. Not all of the matters set out in s 117(2A) were addressed by the parties with such matters being confined to the financial circumstances of the wife, noting that she has previously received a payment of $190,000, which has apparently been retained by her to fund litigation and of which I am told, $90,000 is remaining.
The second aspect relates wholly to the manner of conduct of the proceedings by the wife.
It is trite law to observe that costs are typically made on a party/party basis. There may be circumstances that arise in a particular case that justifies a departure from that usual course. The Full Court in Quickley & Pelissier [2016] FamCAFC 124 set out the circumstances in which an indemnity award of costs may be made, observing that an order that provides for indemnity costs is a very great departure from the normal approach, and accordingly that the circumstances justifying the departure should be of an exceptional kind.
The issue here is whether the wife’s failure to amend her points of claim until after submissions had been received in respect of the striking out of her claim is such a very great departure.
Despite the matters that have been raised on behalf of the second through fifth respondents and the husband which point to the wife’s conduct as being a significant departure from the conduct that should have been undertaken by her in respect of ensuring that the pleadings were such as to justify her litigation, that is a departure from the standards which does not rise so high as to meet the standard of very great departure as to warrant an order for indemnity costs.
Under those circumstances awards should be made in respect of the husband and the second through fifth respondents on a party/party basis.
As to the timing of such costs being paid, while the wife sought that they be deferred until the ultimate disposal of the proceedings, it is appropriate that having gone through this discrete aspect of the proceedings in circumstances where the wife does have funds at her disposal sufficient to meet what are reasonable and economical claims for costs, there should not be a deferral of the husband’s or the second through fifth respondents’ entitlement to receive such.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 20 February 2024
SCHEDULE OF PARTIES
CAC 559 of 2022 Respondents
Fourth Respondent:
MS PEJIC SNR
Fifth Respondent:
E PTY LTD
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