Rendon and West and Ors (No.2) - [2019] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

RENDON & WEST & ORS (No.2)

[2019] FCCA 461

Catchwords:
FAMILY LAW – Costs – general principle that each party to bear own costs – where general principle yields to power to award costs – relevant considerations – where open offer made to compromise issues in dispute – pursuit of untenable claims – parties agreed that court has power to set the amount of such costs – order for indemnity costs, including for costs of application – power to set quantum, determine method for computation or to refer to taxation – quantum set.

Legislation:

Family Law Act 1975 (Cth), ss.79, 79A, 117

Federal Circuit Court Rules 2001 (Cth), r.22.02

Cases cited:

Browne v Green [2002] FLC 93

Cacchia v Hanes (1994) 179 CLR 403

Eldred & Eldred (No 2) [2015] FamCA 188

Hawkins & Roe [2012] FamCAFC 77

Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298

JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119

LAC & TRF & LKL [2005] FamCA 158

Latoudis v Casey (1990) 170 CLR 534

Mallett v Mallett (1984) 156 CLR 605

Marriage of Conroy (1976) 2 Fam LR 11

Marriage of Fisher (1990) 13 Fam LR 806

Marriage of Greedy (1982) 8 Fam LR 669

Marriage of Kelly (No 2) (1981) FLC 91

Marriage of Robinson & Higginbotham (1991) 14 Fam LR 559

Munday & Bowman (1997) FLC 92

Parke & The Estate of the Late A Parke [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311

Pennisi & Pennisi (1997) FLC 92

Rendon & West & Ors [2018] FCCA 3678

Wrensted v Eades [2016] FamCAFC 46

Applicant:

MR RENDON

First Respondent:

MS WEST (nee RENDON)

Second Respondent:

MS BLAKE

Third Respondent

COMPANY A PTY LTD

File Number:

MLC 6802 of 2014

Judgment of:

Judge A Kelly

Hearing date:

21 February 2019

Date of Last Submission:

21 February 2019

Delivered at:

Melbourne

Delivered on:

28 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Scammell Black Mileo

Counsel for the Respondents:

Mr Crofts

Solicitors for the Respondents:

McKean Park

ORDERS

The first respondent pay the applicant’s costs of and incidental to the applications filed on 29 August 2017 fixed in the sum of $24,000.

IT IS NOTED that publication of this judgment under the pseudonym Rendon & West & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6802 of 2014

MR RENDON

Applicant

And

MS WEST (NEE RENDON)

First Respondent

MS BLAKE

Second Respondent

COMPANY A PTY LTD

Third Respondent

REASONS FOR JUDGMENT

Introduction

On 12 January 2018, reasons for judgment were published respecting an application in a case filed on 29 August 2017 by the first respondent and the applicant’s response thereto: [2018] FCCA 3678. By orders made on that date, the applicant was ordered to indemnify the first applicant in relation to certain tax liabilities (but not…

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] FCCA 461
Decision Date: 28 February 2019

CaseChat Overview and Summary

In *Rendon and West and Ors (No.2)*, Judge A Kelly of the Family Court of Australia considered an application for costs. The dispute concerned the quantum of costs to be awarded following earlier proceedings, with the parties agreeing that the Court possessed the power to set the amount of these costs.

The central legal issue before the Court was whether the general principle that each party bears their own costs should yield to the Court's power to award costs, and if so, what considerations were relevant in determining the quantum of such an award. Specifically, the Court was required to assess the impact of an open offer made to compromise the issues in dispute and the pursuit of what were described as untenable claims.

The Court reasoned that the general principle regarding costs could be displaced in circumstances where it was appropriate to do so, particularly given the existence of an open offer to compromise and the pursuit of claims that were ultimately unsuccessful. Applying these considerations, the Court determined that an order for indemnity costs was warranted. The Court then exercised its power to set the quantum of these costs, rather than referring the matter to taxation.

The Court ordered that the first respondent pay the applicant’s costs of and incidental to the applications filed on 29 August 2017, fixing the total sum payable at $24,000.

Orders

Orders of the court

The first respondent pay the applicant’s costs of and incidental to the applications filed on 29 August 2017 fixed in the sum of $24,000.

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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