FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Penner & Conroy [2022] FedCFamC1F 283
File number(s): SYC 8355 of 2017 Judgment of: HARPER J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – COSTS – Applicant Wife seeks indemnity costs against Respondent Husband – Both parties of substantial wealth – Wife argues that husband caused her to undertake extensive and unnecessary work – Wife argues that husband’s disclosure requests amounted to fishing expedition – No adverse findings were made in the primary judgment about disclosure – Neither party wholly unsuccessful – Wife made three offers to the husband, last of which reflected the outcome the husband achieved at trial – Rejection of final offer was unreasonable – Order for indemnity costs not justified – Party and party costs ordered from date of third offer, as agreed or assessed – Costs of application for expert rental assessment of property excluded from husband’s liability. Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) r 1.04
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited: Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131
Brown v Green (2002) FLC 93-115; [2002] FamCA 791
Conroy & Penner [2022] FedCFamC1A 39
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Harris & Dewell (No 2) [2018] FamCAFC 180
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Medlon & Medlon (No 6) (2015) FLC 93-664; [2015] FamCAFC 157
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Penner & Conroy (No. 2) [2021] FamCA 411
Prantage & Prantage (Costs) [2014] FamCA 850
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Division: Division 1 First Instance Number of paragraphs: 50 Date of last submission/s: 8 October 2021 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Somerville Legal Solicitor for the Respondent: Blanchfield Nicholls Family & Private Advisory
Table of Corrections 29 July 2022 Order 2 was inserted, reading “Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), certification is given to the wife for engagement of counsel, including Senior Counsel.” ORDERS
SYC 8355 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PENNER
Applicant
AND: MR CONROY
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
29 APRIL 2022
Amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 29 July 2022
THE COURT ORDERS THAT:
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- [2022] FedCFamC1F 283
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CaseChat Overview and Summary
In this case, the wife filed an application for costs in the Family Court of Australia following the dismissal of an appeal against the final orders in the primary proceedings. The husband had previously appealed the final orders, and the appeal was dismissed on 24 March 2022. The wife sought an indemnity costs order or, in the alternative, a costs order on the standard basis or the scale in the Family Law Rules 2004. The husband opposed the application, seeking to have it dismissed or stayed pending the outcome of his appeal. The court was required to determine whether the wife was entitled to an indemnity costs order, and if not, the appropriate costs order on the standard basis or the scale in the Family Law Rules 2004.
The court noted that the husband had been ordered to pay the wife's costs of the appeal in the amount of $30,000. The wife had filed a tender bundle and written submissions, while the husband had filed a response and written submissions. The court considered the appropriate costs order, taking into account the nature and complexity of the proceedings, the conduct of the parties, and the outcome of the proceedings. The court found that the wife was entitled to an indemnity costs order in the amount of $384,327.37, which represented the costs from 27 September 2018 to the date of the orders.
The court dismissed the husband's application to have the costs application dismissed or stayed pending the outcome of his appeal. The court found that the husband's appeal was unlikely to succeed, and that the wife was entitled to costs on an indemnity basis. The court also found that the husband's application to exclude certain costs from the order was not well-founded. The court made orders for the husband to pay the wife's costs of the proceedings and the costs application in the amount of $391,887.37. The husband was ordered to transfer the costs to the wife's solicitor's trust account within 60 days of the orders.
The court noted that the husband had been ordered to pay the wife's costs of the appeal in the amount of $30,000. The wife had filed a tender bundle and written submissions, while the husband had filed a response and written submissions. The court considered the appropriate costs order, taking into account the nature and complexity of the proceedings, the conduct of the parties, and the outcome of the proceedings. The court found that the wife was entitled to an indemnity costs order in the amount of $384,327.37, which represented the costs from 27 September 2018 to the date of the orders.
The court dismissed the husband's application to have the costs application dismissed or stayed pending the outcome of his appeal. The court found that the husband's appeal was unlikely to succeed, and that the wife was entitled to costs on an indemnity basis. The court also found that the husband's application to exclude certain costs from the order was not well-founded. The court made orders for the husband to pay the wife's costs of the proceedings and the costs application in the amount of $391,887.37. The husband was ordered to transfer the costs to the wife's solicitor's trust account within 60 days of the orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The husband subsequently appealed the final orders. The costs application was therefore not determined pending the outcome of the appeal. The appeal was dismissed on 24 March 2022: Conroy & Penner [2022] FedCFamC1A 39 (“the appeal judgment”). The husband was also ordered to pay the wife’s costs of the appeal, fixed in the amount of $30,000. The parties consented to the costs application being determined on the papers. Accordingly, I made orders in chambers for the parties to file submissions and relevant documents. Both parties have complied with those orders. The wife filed and served a tender bundle on 30 July 2021. The husband filed his response to the Application in a Case and tender bundle on 27 August 2021. The wife then filed written submissions on 17 September 2021, and the husband filed his written submissions on 8 October 2021.ORDERS SOUGHT AS TO COSTS By way of her Application in a Case filed 16 July 2021, the wife seeks the following orders:1. That the Respondent pay to the Applicant her legal costs and disbursements of, and incidental to, the proceedings as follows:1.1 On an indemnity basis fixed at the sum of $497,308.64; or1.2 In the event that Order 1.1 is not made, then the amount of $419,110.84 which represents the costs from 27 September 2018 to date; or1.3 In the event that Order 1.2 is not made, then the amount of $259,486.96 which represents the costs from 13 March 2020 to date; or1.4 In the event that Order 1.3 is not made, then such costs as are calculated in accordance with the scale in the Family Law Rules 2004.2. That the Respondent pay the Applicant’s costs of and incidental to this Costs Application in the amount of $7,560.3. For the purpose of Order 1 and 2 above, the Respondent shall transfer the costs as ordered by the Court into the Applicant’s solicitor’s trust account within 60 days from the date of these Orders. In his Response filed on 27 August 2021, the husband seeks no order for costs in his favour, but the following:1. That the Wife’s Application in a Case for costs filed 16 July 2021 be dismissed.2. In the alternative to Order 1, that the hearing and determination of the Wife’s Application in a Case filed 16 July 2021 be stood over pending the determination of the Husband’s Appeal against the Orders of 21 June 2021.3. That in the alternative to Orders 1 and 2, in the event an Order for costs is made in favour of the Wife, that Order be stayed pending the determination of the Husband’s Appeal against the Orders of 21 June 2021.4. That in the event that an order for costs is made in favour of the wife, the order specifically exclude any costs for work undertaken in relation to or incidental to:(a) The application for a rental assessment of the [Suburb F] Property filed by the wife on 12 June 2020, the instruction of the expert for the preparation of that assessment, the costs of the rental assessment prepared by [Mr AA] and any other work and disbursements incidental to that rental assessment;(b) The application by the husband filed on 22 September 2020 in respect of the inspection of Supreme Court files produced to the Family Court of Australia, and the consent order filed for the resolution of that application on 19 October 2020,and all work related to that issue;(c) The dispute relating to the preparation of the letter of instruction to the single expert [Mr W] in the period 11 April 2019 to 31 May 2019 including in relation to the application filed by the husband on 30 May 2019;(d) Disclosure relating to the restructure of the [G Group] in 2019 and 2020, including the provision of material in relation to that restructure to the single expert [Mr W].5. That the applicant pay the respondent’s costs of and incidental to this application.
Ratio Decidendi
Legal Principle Established
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