Rapino and Lagioia - [2020] FamCA 169

FAMILY COURT OF AUSTRALIA

RAPINO & LAGIOIA

[2020] FamCA 169

FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Refusal of leave to commence proceedings out of time – Failure to accept an offer more favourable than the judgment – Wholly unsuccessful - Indemnity costs not appropriate - Where an order is made for the Wife to pay the Husband’s costs on a party/party basis.

Family Law Act 1975 (Cth) s 117

I & I (No 2) (1995) FLC 92 -625

In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321 at 323

Kohan and Kohan (1993) FLC 92-340
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Penfold v Penfold (1980) 144 CLR 311
Quickley & Pelissier [2016] FamCAFC 124
Stanford v Stanford (2012) 247 CLR 108
Tedja & Sony [2017] FamCAFC 121

APPLICANT:

Mr Rapino

RESPONDENT:

Ms Lagioia

FILE NUMBER:

CAC

1615

2008

DATE DELIVERED:

20 March 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

12 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Self-representing

Orders

The Wife pay the Husband’s costs in relation to her application seeking leave to commence property proceedings out of time on a party-party basis as agreed or as assessed.

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 Court under the pseudonym Rapino & Lagioia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1615 of 2008

Mr Rapino

Applicant

And

Ms Lagioia

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this matter are the Applicant Husband, Mr Rapino, and the Respondent Wife, Ms Lagioia. I refer to my previous judgment, where the Wife sought leave to institute property proceedings out of time and her application was dismissed. The Husband now seeks costs in relation to this matter.

Orders Sought

In his Application in a Case filed 14 February 2020, the Husband sought that the Wife pay the Husband’s costs relating to her application for leave on a party/party basis from 16 May 2017 to 9 October 2017 (in the sum of $4,089.18). The Husband also sought that the Wife pay his legal costs on an indemnity basis from 10 October 2017 to date (in the sum of $59,095.38).
The Wife sought that the Husband’s Application in a Case filed 14 February 2020 be dismissed and that the Husband pay the Wife’s costs in relation to this application, fixed at the sum of $2,000.

Material relied upon

The Husband relied…

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 Rapino and Lagioia

Details

AGLC: Rapino and Lagioia [2020] FamCA 169
Case: [2020] FamCA 169
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the matter of *Rapino and Lagioia*, heard before Gill J, the wife sought leave to commence property proceedings out of time. The husband sought costs in relation to this application.

The central legal issue before the court was whether the wife should be granted leave to commence property proceedings after the expiry of the statutory time limit. This required the court to consider the relevant legislative provisions and the principles governing the exercise of discretion in such matters.

Gill J determined that the wife had not established sufficient grounds to warrant the granting of leave to proceed out of time. The court applied the principles governing applications for leave to commence property proceedings out of time, considering factors such as the merits of the proposed claim and the prejudice to the respondent.

The court ordered that the wife pay the husband’s costs in relation to her application for leave to commence property proceedings out of time on a party-party basis, to be agreed or as assessed.

Orders

Orders of the court

The Wife pay the Husband’s costs in relation to her application seeking leave to commence property proceedings out of time on a party-party basis as agreed or as assessed.

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

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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