FAMILY LAW – COSTS – wife’s application for indemnity costs – where the husband’s case in the substantive proceedings was without merit – matters justifying departure from general proposition that each party shall bear his or her own costs – matters justifying an order for costs – matters justifying an assessment of costs on a basis which is a hybrid of practitioner/client and party/party costs – payment of costs, once assessed, from monies held in trust – husband to pay costs of this application for costs
Prantage & Prantage (2013) 49 Fam LR 197
APPLICANT:
Mr Prantage
RESPONDENT:
Ms Prantage
INTERVENOR:
INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER:
MLC
11263
of
2008
DATE DELIVERED:
9 September 2014
PLACE DELIVERED:
Melbourne
PLACE HEARD:
Melbourne
JUDGMENT OF:
Bennett J
REPRESENTATION
COUNSEL FOR THE APPLICANT:
In person
SOLICITOR FOR THE APPLICANT:
COUNSEL FOR THE RESPONDENT:
Ms Smallwood
SOLICITOR FOR THE RESPONDENT:
Lampe Family Lawyers
Orders
The husband pay the wife’s costs of and incidental to his application filed 27 December 2012 and the wife’s response filed 26 April 2013 calculated as follows:-
a)Without including the proceedings on 17 July 2014;
b)Without regard to the reasonable costs of Dr NZ attending court to give evidence;
c)With costs referrable to the perusing and copying the husband’s affidavits sworn on 27 December 2012 and 6 April 2013 and taking instructions for evidence in response and drawing, engrossing and filing any evidence in response thereto to be assessed on an indemnity basis;
d)With counsel’s fees to be assessed at the top of the scale for fees for counsel for work done as provided for in Schedule 3 to the Family Law Rules (“the Rules”);
e)As to the balance, to be assessed in accordance with Schedule 3 to the Rules;
f)For the avoidance of doubt, in respect of the costs referred to in 1(e), 1(d) and 4, the Registrar may make such allowance as he/she considers appropriate, in accordance with rule 19.35, in relation to matters not specified in Schedule 3 to the Rules.
The wife serve an itemised costs account on the husband within 21 days.
In the event that the husband disputes any item of the itemised costs account then within 28 days of service upon him of the wife’s itemised costs account, the husband serve a Notice Disputing Itemised Costs Account in accordance with rule 19.23 of the Rules.
In the event that the husband fails to comply with paragraph 3, the wife have liberty to apply to the Registrar for an order pursuant to rule 19.37 of the Rules.
The husband pay the wife’s costs of, and incidental to, this costs application, such costs to:-
a)Accompany but appear separately from the itemised costs for the purpose of paragraph 2 of this Order;
b)Be assessed in accordance with Schedule 3 to the Rules save that the work of counsel be assessed at the top of the scale for fees for counsel for work done as…
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.
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Details
AGLC
Prantage & Prantage (Costs) [2014] FamCA 850
Case
[2014] FamCA 850
Decision Date
CaseChat Overview and Summary
In the matter of *Prantage & Prantage (Costs)*, Bennett J considered an application for costs following earlier proceedings between a husband and wife. The specific dispute concerned the quantum and basis of assessment for the wife's costs, particularly in relation to the husband's applications and the wife's responses thereto.
The court was required to determine the appropriate basis for assessing the wife's costs, including whether certain costs should be assessed on an indemnity basis and the scale at which counsel's fees should be calculated. The court also had to consider the reasonableness of engaging counsel or a lawyer to attend for the wife to take judgment.
Bennett J ordered that the husband pay the wife's costs of and incidental to his application and her response, excluding proceedings on 17 July 2014 and the costs of Dr NZ attending court. Certain costs, specifically those related to perusing and copying the husband's affidavits, taking instructions, and drawing evidence in response, were to be assessed on an indemnity basis. Counsel's fees were to be assessed at the top of the scale provided for in Schedule 3 to the Family Law Rules, with the balance of costs also assessed under Schedule 3. The Registrar was given discretion to make allowances for matters not specified in Schedule 3. The court further ordered that the husband pay the wife's costs of the costs application itself, to be assessed similarly to the primary costs order, with counsel's fees at the top of the scale. The wife was entitled to recover these assessed costs from monies held on trust by Gadens Lawyers, with specific directions for serving the relevant orders and assessment. Finally, the court certified that it was reasonable to engage counsel or a lawyer to attend for the wife to take judgment.
Orders
Orders of the court
1.
The husband pay the wife’s costs of and incidental to his application filed 27 December 2012 and the wife’s response filed 26 April 2013 calculated as follows:-
a) Without including the proceedings on 17 July 2014;
b) Without regard to the reasonable costs of Dr NZ attending court to give evidence;
c) With costs referrable to the perusing and copying the husband’s affidavits sworn on 27 December 2012 and 6 April 2013 and taking instructions for evidence in response and drawing, engrossing and filing any evidence in response thereto to be assessed on an indemnity basis;
d) With counsel’s fees to be assessed at the top of the scale for fees for counsel for work done as provided for in Schedule 3 to the Family Law Rules (“the Rules”);
e) As to the balance, to be assessed in accordance with Schedule 3 to the Rules;
f) For the avoidance of doubt, in respect of the costs referred to in 1(e), 1(d) and 4, the Registrar may make such allowance as he/she considers appropriate, in accordance with rule 19.35, in relation to matters not specified in Schedule 3 to the Rules.
2.
The wife serve an itemised costs account on the husband within 21 days.
3.
In the event that the husband disputes any item of the itemised costs account then within 28 days of service upon him of the wife’s itemised costs account, the husband serve a Notice Disputing Itemised Costs Account in accordance with rule 19.23 of the Rules.
4.
In the event that the husband fails to comply with paragraph 3, the wife have liberty to apply to the Registrar for an order pursuant to rule 19.37 of the Rules.
5.
The husband pay the wife’s costs of, and incidental to, this costs application, such costs to:-
a) Accompany but appear separately from the itemised costs for the purpose of paragraph 2 of this Order;
b) Be assessed in accordance with Schedule 3 to the Rules save that the work of counsel be assessed at the top of the scale for fees for counsel for work done as provided for in Schedule 3 to the Rules ;
c) Be assessed together with the costs payable pursuant to paragraph 1 of this Order.
6.
Once the costs are assessed, the wife be, and is hereby, entitled to have paid to her from the monies held on trust for the parties by Gadens Lawyers funds not greater that the amount of the costs assessment order of the Registrar and for this purpose:-
a) The wife’s practitioners serve a sealed copy of the costs assessment order on the husband by sending same by pre-paid post to his address for service under cover of a letter specifying that the wife will require Gadens Lawyers to pay to her lawyers monies not exceeding the amount of the costs assessment order;
b) The wife’s practitioners send to Gadens Lawyers:-
i) a sealed copy of this Order; and
ii) the costs assessment order; and
iii) a copy of any letter sent pursuant to sub-paragraph 5(a) of this Order –
under cover of a letter requesting that an amount not greater than the amount of the costs assessment order be paid to her lawyers.
7.
Any monies paid to the wife pursuant to paragraph 5 of this Order are hereby deemed to be funds paid for and on behalf of the husband.
8.
Nothing in paragraph 5 of this Order prevents the wife from recovering part or all of the costs to which she is entitled pursuant to this Order from the husband direct without recourse to the funds held by Gadens Lawyers.
9.
Pursuant to rule 19.50, I certify that it was reasonable to engage either counsel or a lawyer (whichever was the case) to attend for the wife to take judgement.