RANKIN & RANKIN - [2019] FamCAFC 52

FAMILY COURT OF AUSTRALIA

RANKIN & RANKIN

[2019] FamCAFC 52

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the respondent seeks costs on an indemnity basis against the applicant and the applicant’s solicitor but ultimately against the applicant leaving the applicant to pursue his solicitor if so advised – Where the applicant opposes any order for costs on the basis that he was successful in having his appeal reinstated – Where the application was only necessary because the applicant had not complied with orders of this Court – Where the respondent has demonstrated the presence of exceptional circumstances such as to warrant a departure from the ordinary rule as to costs – Costs of the proceedings ordered in favour of the respondent to be assessed on an indemnity basis in default of agreement.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin(Costs) (2007) 38 FamLR 478
Munday v Bowman (1997) FLC 92-784
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

MR RANKIN

RESPONDENT:

MS RANKIN

FILE NUMBER:

DGC

2859

2013

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

26 March 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

19 November 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 March 2018

LOWER COURT MNC:

[2018] FamCA 268

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Guzzo
SOLICITOR FOR THE APPLICANT:	L & Co Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Barbayannis
SOLICITOR FOR THE RESPONDENT:	Tisher Liner FC Law

Orders made on 19 November 2018

The affidavit affirmed by the applicant husband’s counsel on 19 November 2018 be released to the respondent wife’s counsel for the purposes of him obtaining instructions from his instructing solicitor and client, and the respondent wife, her counsel and her solicitor be restrained from disseminating to any other persons any of the facts deposed to in that affidavit.
The applicant husband have leave to rely on his affidavit affirmed on 18 November 2018 save and except for annexure “[R]-A1”.
The Notice of Appeal filed on 25 May 2018 be reinstated.
The applicant husband have leave to file an Amended Notice of Appeal in accordance with Annexure “[RR]-A” to the affidavit of Ms RR filed on 12 September 2018.
The said Amended Notice of Appeal be referred to the Southern Appeal Registrar for a directions hearing.
The applicant husband pay the costs of the respondent wife on an indemnity basis such costs to be assessed in default of agreement.

UPON NOTING THAT the affidavit referred to in paragraph 1 herein be placed in a sealed envelope to be returned to the applicant husband following delivery of the reasons for judgment in relation to the order for costs made in paragraph 6 herein.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this…

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

Case: [2019] FamCAFC 52
Decision Date: 26 March 2019

CaseChat Overview and Summary

The matter of Rankin & Rankin before the Family Court of Australia involved a dispute between Mr Rankin and Ms Rankin regarding the enforcement of costs on an indemnity basis in the context of an appeal. Mr Rankin sought to reinstate his appeal against the orders of the Family Court, which had been deemed abandoned due to his failure to comply with a specific court order. Ms Rankin, the respondent, sought indemnity costs against both Mr Rankin and his solicitor, ultimately arguing that the costs should be borne by Mr Rankin.

The primary legal issues in this case involved determining whether an order for indemnity costs was justified under the circumstances and, if so, on what basis those costs should be calculated. The court examined the conduct of the parties, particularly Mr Rankin's failure to comply with the court's orders, and the circumstances leading to this failure. The court also considered whether the exceptional circumstances warranted a departure from the usual rule of costs being calculated on a party/party basis.

The court found that the circumstances did indeed justify an order for indemnity costs. Despite the husband’s solicitor taking the blame for the failure to file the appeal books on time, the husband remained responsible for ensuring compliance with the court's orders. The court highlighted significant gaps in the evidence provided by Mr Rankin and his solicitor, including the lack of clarity regarding the preparation timeline of the appeal books and the reasons for the delay. Furthermore, the court noted that this was not the first instance where Mr Rankin had failed to meet an appeal-related deadline. Given these circumstances, the court concluded that the wife should not bear the expense of meeting the application for reinstatement, which was necessitated by Mr Rankin's failure to comply with the court's order. The court therefore ruled that the costs should be assessed on an indemnity basis, with the husband ultimately responsible for these costs.

Orders