Pejic & Pejic (No 3) - [2024] FedCFamC1F 81

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pejic & Pejic (No 3)

Details

AGLC: Pejic & Pejic (No 3) [2024] FedCFamC1F 81
Case: [2024] FedCFamC1F 81
Decision Date: 20 February 2024

CaseChat Overview and Summary

In the case of Pejic & Pejic (No 3), the applicant, Ms Pejic, sought to amend her points of claim following the filing of submissions from the other parties in respect of the strike out claim. The respondents, including Mr Pejic and several companies, sought costs on an indemnity basis, while the wife conceded that she would pay costs on a party/party basis. The court was required to decide whether the wife's failure to amend her points of claim until after submissions had been filed warranted a departure from the usual costs award of party/party. The Federal Circuit and Family Court of Australia examined the circumstances surrounding the delay and the impact on the proceedings. The court found that the wife's delay in amending her points of claim was not sufficient to warrant an indemnity costs order. The wife was ordered to pay the husband’s and second through fifth respondents’ costs on a party/party basis, which was the usual costs award in such cases. The court emphasised that the wife's concession to pay costs on a party/party basis was a factor in its decision. The order required the wife to pay the husband's costs of $1,400 and the costs of the second through fifth respondents amounting to $5,380, both on a party/party basis. Additionally, the court issued further directions for the filing of amended points of claim, defences, financial statements, and trial affidavits, and set specific timelines for these actions. The matter was relisted for further directions and a compliance check before a registrar of the court.

Orders

Orders of the court

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.

Background

Background to the litigation

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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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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

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