Reza and Sadir & Anor - [2019] FamCA 404

FAMILY COURT OF AUSTRALIA

REZA & SADIR AND ANOR

[2019] FamCA 404

FAMILY LAW – COSTS – Where application for costs by second respondent – Where second respondent joined in proceedings by the wife – Where primary relief sought by the wife was in equity pursuant to the Court’s accrued jurisdiction – Where ultimately wife wholly unsuccessful – Where appropriate that the provisions as to costs under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) be considered – Where appropriate that wife pay the second respondent’s costs on an indemnity basis as agreed or assessed

FAMILY LAW – COSTS – Where second respondent joined in proceedings by the wife – Where wife sought orders as against second respondent under s 106B of the Family Law Act 1975 (Cth) – Where ultimately claim against second respondent withdrawn and dismissed – Consideration of applicable principles – Where wife to pay second respondent’s costs on a party/party basis as agreed or assessed.

Civil Procedure Act 2005 (NSW) s 98
Family Law Act 1975 (Cth) ss 106B, 117
Family Law Rules 2004 (Cth) r 19.08(3), 19.18(1)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
Collins & Collins (1985) FLC 91-603
D & D (Costs) (No. 2) [2010] FamCAFC 64
Fennessy & Gregorian [2009] FamCAFC 44
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell & Harris (Costs) [2018] FamCAFC 180
Hampton & Farley and Ors (No 3) [2013] FamCA 890
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Jones & Anor & Markham [2010] FamCA 1026
Joyce & Fante [2013] FamCAFC 141
Lenova & Lenova (Costs) [2011] FamCAFC 141
Limousin & Limousin [2007] FamCA 1178
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
Skinner & Alfonso-Skinner (Costs) [2010] FamCA 1108
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Mr Reza

FIRST RESPONDENT:

Ms Sadir

SECOND RESPONDENT:

Ms Idris

FILE NUMBER:

SYC

6093

2014

DATE DELIVERED:

21 June 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 2 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Osborne Legal

COUNSEL FOR THE FIRST RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE FIRST RESPONDENT:

Kelly Hardie Solicitors

COUNSEL FOR THE SECOND RESPONDENT:

Mr Sansom SC with him Mr Alexander

SOLICITOR FOR THE SECOND RESPONDENT:

Campbell Paton & Taylor

Orders

That the wife pay the costs of the second respondent of and incidental to the wife’s equitable claim against the second respondent such costs to be assessed on an indemnity basis as agreed within one month from this date or otherwise as assessed.
That the wife pay the second…

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] FamCA 404
Decision Date: 21 June 2019

CaseChat Overview and Summary

In *Reza and Sadir & Anor*, Foster J of the Family Court of Australia considered an application for costs by the second respondent. The second respondent had been joined in the proceedings by the wife, who was ultimately unsuccessful in her claims against both the first respondent and the second respondent. The primary relief sought by the wife against the second respondent was in equity, pursued under the Court's accrued jurisdiction.

The legal issues before the Court were whether the wife should pay the second respondent's costs, and if so, on what basis. Specifically, the Court was required to consider the application of the *Civil Procedure Act 2005* (NSW) and the *Uniform Civil Procedure Rules 2005* (NSW) to the equitable claim, and the principles applicable to costs in relation to the wife's claim under section 106B of the *Family Law Act 1975* (Cth), which had been withdrawn and dismissed.

Foster J reasoned that given the wife's complete lack of success in her equitable claim against the second respondent, it was appropriate for the wife to pay the second respondent's costs on an indemnity basis. In relation to the section 106B proceedings and the present costs application, the Court determined that costs should be awarded on a party/party basis.

Consequently, the Court ordered that the wife pay the costs of the second respondent in relation to the equitable claim, to be assessed on an indemnity basis. The wife was also ordered to pay the second respondent's costs for the section 106B proceedings and the costs application on a party/party basis. These costs were to be agreed within one month or otherwise assessed.

Orders

Orders of the court

That the wife pay the costs of the second respondent of and incidental to the wife’s equitable claim against the second respondent such costs to be assessed on an indemnity basis as agreed within one month from this date or otherwise as assessed.

That the wife pay the second respondent’s costs of and incidental to the section 106B proceedings and of the present costs application on a party/party basis as agreed within one month from this date or otherwise 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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