PORTO & PORTO - [2011] FamCA 247

FAMILY COURT OF AUSTRALIA

PORTO & PORTO

[2011] FamCA 247

FAMILY LAW - COSTS - Between parties
FAMILY LAW - COSTS - Discretion
FAMILY LAW - COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

Colgate-Palmolive company & Anor v Cussons Pty Ltd [1993]FCA 536
Yunghanns & Yunghanns (2000) FLC 93-029
Jones & Jones (1990) FLC 92-143
Dorfer & Dorfer [2009] FamCA 893
Stephens & Stephens & Another (2009) FLC 93-425
Grincelis v House (2000) 201CLR 321
Kowaliw & Kowaliw (1981) FLC 91-092)

APPLICANT:

Ms Porto

RESPONDENT:

Mr Porto

FILE NUMBER:

MLC

3219

2007

DATE DELIVERED:

31 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

21 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Costell

SOLICITOR FOR THE APPLICANT:

Holding Redlich Lawyers, Melbourne

COUNSEL FOR THE RESPONDENT:

Mr Glover

SOLICITOR FOR THE RESPONDENT:

Berry Family Law, Flagstaff

Orders

That the wife shall pay the husband’s costs of 17 December 2010, such costs to be agreed within 21 days of the date of these orders, and failing agreement, to be taxed.
That the husband shall pay the wife’s costs, on an indemnity basis, of 3½ days’ of the 5-day hearing ending 11 November 2010, and of the proceedings (in addition to the costs already to be taxed pursuant to the orders of 14 December 2007, 20 March 2008 and 17 December 2009, and the costs fixed at $4,178 but outstanding pursuant to the order of 25 March 2009), such costs to be agreed within 21 days of the date of these orders, and failing agreement, to be taxed.
That the sum to be paid by the wife to the husband in paragraph 1 of these orders shall be off-set against the sum to be paid by the husband to the wife in paragraph 2 of these orders.
That the husband shall pay to the wife interest from 22 January 2011 at the rate prescribed by the applicable Rules of Court or so much of the money ordered to be paid by paragraph 3 of the orders of 17 December 2010 as is from time to time unpaid.

IT IS NOTED that publication of this judgment under the pseudonym Porto & Porto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3219 of 2007

Ms Porto

Applicant

And

Mr Porto

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

I gave judgment in this matter on 8 December 2010 and pronounced final property orders on 17 December 2010. The issues of costs and interest were adjourned to 21 January 2011.
The wife seeks:
·Costs on an indemnity basis
·Interest on the judgment debt
·Interest back-dated to the start of the proceedings
·A mechanical order to ensure that various unpaid costs orders in her favour be paid to her from the husband’s share of the property settlement
The husband seeks:
·His costs thrown away on 17 December 2010

The husband’s costs

The husband’s application is hard…

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 PORTO & PORTO

Details

AGLC: PORTO & PORTO [2011] FamCA 247
Case: [2011] FamCA 247
Decision Date: 31 March 2011

CaseChat Overview and Summary

In *Porto & Porto*, Dessau J of the Family Court of Australia considered an application for costs following family law proceedings. The dispute concerned the allocation of costs between the parties, with specific reference to various prior orders and a substantial hearing.

The central legal issues before the court were the exercise of its discretion regarding costs, and the circumstances that would justify making a costs order in favour of one party against the other. This involved assessing the conduct of the parties during the litigation and the overall merits of their respective positions.

Dessau J applied the principles governing the court's broad discretion in making costs orders in family law matters, which generally follow the "no order as to costs" rule unless specific circumstances warrant a departure. The court considered the history of the proceedings, the conduct of the parties, and the outcome of the hearing to determine whether an order for costs, and on what basis (party/party or indemnity), was appropriate. The court ultimately made orders for costs to be paid by each party to the other, with a provision for off-setting these amounts and for the payment of interest on any outstanding sums.

Orders

Orders of the court

That the wife shall pay the husband’s costs of 17 December 2010, such costs to be agreed within 21 days of the date of these orders, and failing agreement, to be taxed.

That the husband shall pay the wife’s costs, on an indemnity basis, of 3½ days’ of the 5-day hearing ending 11 November 2010, and of the proceedings (in addition to the costs already to be taxed pursuant to the orders of 14 December 2007, 20 March 2008 and 17 December 2009, and the costs fixed at $4,178 but outstanding pursuant to the order of 25 March 2009), such costs to be agreed within 21 days of the date of these orders, and failing agreement, to be taxed.

That the sum to be paid by the wife to the husband in paragraph 1 of these orders shall be off-set against the sum to be paid by the husband to the wife in paragraph 2 of these orders.

That the husband shall pay to the wife interest from 22 January 2011 at the rate prescribed by the applicable Rules of Court or so much of the money ordered to be paid by paragraph 3 of the orders of 17 December 2010 as is from time to time unpaid.

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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