Popovski & Mabon (No 2) - [2024] FedCFamC1F 457

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Popovski & Mabon (No 2) [2024] FedCFamC1F 457

File number: SYC 7140 of 2018

Judgment of: ALDRIDGE J

Date of judgment: 9 July 2024

Catchwords: FAMILY LAW – COSTS – Application by the wife for indemnity costs – Where the husband required the wife to prove ownership of property he previously conceded he was not entitled to – Husband failed to accept a reasonable offer of settlement – Wife’s claim for indemnity costs overstated – Husband to pay the wife’s costs in a fixed sum.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Popovski & Mabon [2024] FedCFamC1F 270

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance

Number of paragraphs: 28

Date of last submission: 19 June 2024

Date of hearing: Determined in chambers on the papers

Place: Sydney

Counsel for the Applicant: Mr Stapleton

Solicitor for the Applicant: Robertson Saxton Osborne Lawyers

Solicitor for the Respondent: Long Saad Woodbridge Lawyers
ORDERS

SYC 7140 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR POPOVSKI

Applicant

AND:
MS MABON

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:
1.The applicant shall pay the respondent’s costs of the final hearing fixed in the sum of $10,000 within 28 days in the following manner:
(a)Prior to the distribution of the proceeds of sale of the Suburb B property under Order 2(c) made 24 April 2024, by deducting the amount from the applicant’s share of the proceeds and paying it to the respondent; or
(b)In the event the distribution of the proceeds of sale of the Suburb B property has already occurred, by paying the amount to the respondent.

2.Each party shall bear their own costs of the costs application.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Popovski & Mabon has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:

On 24 April 2024, I made final property settlement orders in proceedings between Mr Popovski (“the husband”) and Ms Mabon (“the wife”) (Popovski & Mabon [2024]…

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 Popovski & Mabon (No 2)

Details

AGLC: Popovski & Mabon (No 2) [2024] FedCFamC1F 457
Case: [2024] FedCFamC1F 457
Decision Date: 9 July 2024

CaseChat Overview and Summary

The case of Popovski & Mabon (No 2) involved a dispute between the applicant, Mr Popovski, and the respondent, Ms Mabon, regarding indemnity costs. The parties were before the Federal Circuit and Family Court of Australia, where Ms Mabon sought indemnity costs for proceedings that arose from a property dispute. Mr Popovski had previously conceded that he was not entitled to a property, but required Ms Mabon to prove her ownership. This led to a dispute over costs when Ms Mabon applied for indemnity costs and Mr Popovski failed to accept a reasonable offer of settlement. The court was required to determine the appropriate amount of indemnity costs to be awarded to Ms Mabon, taking into account the circumstances of the case.

The central legal issues before the court were whether Ms Mabon was entitled to indemnity costs and, if so, what the appropriate amount should be. The court needed to consider the conduct of both parties in the proceedings and whether it was reasonable for Ms Mabon to seek indemnity costs. The court also had to assess whether Ms Mabon's claim for indemnity costs was overstated. The court needed to balance the principle of indemnity costs against the need to avoid excessive litigation costs.

In delivering the judgment, the court found that Ms Mabon was entitled to indemnity costs, but her claim was overstated. The court emphasised that indemnity costs should not be awarded as a matter of course and should only be granted in exceptional circumstances. The court noted that Mr Popovski's conduct in requiring Ms Mabon to prove ownership of the property and his failure to accept a reasonable offer of settlement were factors that justified an award of indemnity costs. However, the court considered that the amount claimed by Ms Mabon was excessive. After considering all the circumstances, the court ordered that Mr Popovski pay Ms Mabon's costs of the final hearing in a fixed sum of $10,000.

In conclusion, the court ordered that Mr Popovski pay Ms Mabon's costs of the final hearing fixed in the sum of $10,000. The court further ordered that each party bear their own costs of the costs application. This decision highlights the importance of considering the conduct of the parties in determining indemnity costs and the need to balance the principle of indemnity costs against the need to avoid excessive litigation costs.

Orders

Orders of the court

SYC 7140 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR POPOVSKI

Applicant

AND:

MS MABON

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1. The applicant shall pay the respondent’s costs of the final hearing fixed in the sum of $10,000 within 28 days in the following manner:

(a) Prior to the distribution of the proceeds of sale of the Suburb B property under Order 2(c) made 24 April 2024, by deducting the amount from the applicant’s share of the proceeds and paying it to the respondent; or

(b) In the event the distribution of the proceeds of sale of the Suburb B property has already occurred, by paying the amount to the respondent.

2. Each party shall bear their own costs of the costs application.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 7140 of 2018
Judgment of:	ALDRIDGE J
Date of judgment:	9 July 2024
Catchwords:	FAMILY LAW – COSTS – Application by the wife for indemnity costs – Where the husband required the wife to prove ownership of property he previously conceded he was not entitled to – Husband failed to accept a reasonable offer of settlement – Wife’s claim for indemnity costs overstated – Husband to pay the wife’s costs in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 Popovski & Mabon [2024] FedCFamC1F 270 Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division:	Division 1 First Instance
Number of paragraphs:	28
Date of last submission:	19 June 2024
Date of hearing:	Determined in chambers on the papers
Place:	Sydney
Counsel for the Applicant:	Mr Stapleton
Solicitor for the Applicant:	Robertson Saxton Osborne Lawyers
Solicitor for the Respondent:	Long Saad Woodbridge Lawyers

SYC 7140 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR POPOVSKI Applicant
AND:	MS MABON Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	9 JULY 2024