FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rimac & Rimac (No 2) [2022] FedCFamC1F 159
File number(s): SYC 1540 of 2014 Judgment of: MCCLELLAND DCJ Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – COSTS – Where the husband rejected a formal offer of settlement – Imprudent refusal of offer – Costs ordered on party/party basis up until date of offer – Indemnity costs ordered from date of offer. Legislation: Family Law Act 1975 (Cth) ss 79(2), 79(4), 117, 117C, 117(2A)
Family Law Rules 2004 (Cth) rr 1.04, 19.18
Cases cited: Byrnes v Brisconnections Management Co Ltd(No. 2) [2009] FCA 1432
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
D & D (Costs)(No. 2) (2010) FLC 93–435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Harding v Deputy Commissioner of Taxation (2008)172 FCR 206; [2008] FCA 1403
Hunter v Roberts (No 2) [2019] NSWCA 235
I and I (No. 2) (1995) FLC 92–625
Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23
Kohan and Kohan (1993) FLC 92–340; [1992] FamCA 116
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92–784
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Rimac & Rimac [2021] FedCFamC1F 333
Salfinger v Niugini Mining (Australia) Pty Ltd (No 4) [2007] FCA 1594
Somers & Ettridge [2020] FamCAFC 37
Division: Division 1 First Instance Number of paragraphs: 42 Date of last submission: 24 December 2021 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Hughes & Taylor Respondent: No submissions received ORDERS
SYC 1540 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RIMAC
Applicant
AND: MR RIMAC
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The respondent husband is to pay the costs incurred by the wife on a party/party basis in respect to the period from 24 March 2016 to 3 May 2021.
2.The respondent husband is to pay the costs incurred by the wife on an indemnity basis in respect to the period as and from 3 May 2021.
3.The costs payable pursuant to Orders (1) and (2) above are to be paid within 28 days of those costs being agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family…
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- Rimac & Rimac (No 2) [2022] FedCFamC1F 159
- Case
- [2022] FedCFamC1F 159
- Decision Date
CaseChat Overview and Summary
The court found that the husband's rejection of the formal offer of settlement was imprudent. The husband failed to engage in the proceedings in a manner that facilitated the just and timely resolution of the matter, despite guidance and direction provided by the court. Additionally, the husband made unfounded and scurrilous allegations against the wife, which were rejected by the court. The court held that the husband's conduct prolonged the proceedings and failed to constructively engage in the issues that required adjudication.
The court ordered that the husband pay the wife's costs on a party/party basis up until the date of the offer of settlement and on an indemnity basis from the date of the offer. The court found that the husband's financial circumstances did not preclude an order for costs. The court also noted that the husband had been granted several adjournments to enable him to properly prepare his case and engage appropriately qualified legal advisers, but he failed to utilise those opportunities. The court held that the husband's conduct warranted an order for indemnity costs from the date of the offer of settlement.
In conclusion, the court held that the husband's rejection of the formal offer of settlement was imprudent and ordered costs on a party/party basis up until the date of the offer and on an indemnity basis from the date of the offer. The court found that the husband's conduct prolonged the proceedings and failed to constructively engage in the issues that required adjudication. The court's decision is consistent with the principles set out in Fitzgerald v Fish, where the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be met in order for the Court to make a costs order.
Orders
Orders of the court
SYC 1540 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS RIMAC
Applicant
AND:
MR RIMAC
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1. The respondent husband is to pay the costs incurred by the wife on a party/party basis in respect to the period from 24 March 2016 to 3 May 2021.
2. The respondent husband is to pay the costs incurred by the wife on an indemnity basis in respect to the period as and from 3 May 2021.
3. The costs payable pursuant to Orders (1) and (2) above are to be paid within 28 days of those costs being agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 (“Fitzgerald v Fish”), the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be met in order for the Court to make a costs order. The Full Court per Kay, Warnick and Boland JJ stated, when referring to s 117(2A) at [41]:A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs. CONSIDERATION I propose to consider this matter in terms of those matters set out in s 117(2A) in seriatim. In terms of s 117(2A)(a), the financial circumstances of each of the parties was considered in my reasons for judgment dated 21 December 2021. While the Court found that the property of the husband had been substantially reduced by the conduct of his brother and his nephew, it was the husband’s evidence that he retained access to funds held on his behalf by his nephew. In those circumstances, the financial circumstances of each party is not such that it precludes the Court from making an order for costs. Section 117(2A)(b) is not relevant as neither party is in receipt of assistance by way of Legal Aid. In terms of s 117(2A)(c), despite guidance and direction provided by the Court on several occasions, including 24 September 2020 and 3 May 2021, the husband failed to engage in these proceedings in a manner that facilitated the just and timely resolution of this matter consistent with the main purpose of the then applicable Family Law Rules 2004 (Cth), (“2004 Rules”) stipulated in r 1.04. This included the failure on the part of the husband to provide full and frank disclosure as well as comply with directions and orders of the Court. Significantly, the husband was granted the indulgence of several adjournments to enable him to properly prepare his case including, in circumstances where he had access to substantial financial resources, the opportunity to engage appropriately qualified legal advisers. The husband did not utilise those opportunities, but rather elected to be represented by his brother in the final hearing. Of additional relevance is the nature of the case presented by the husband, which included making unfounded and scurrilous allegations against the wife that she had mistreated him and that she had accessed and misapplied funds he had received in the damages settlement, to which I have referred, for her own purposes. Each of the husband’s allegations in that respect were rejected. The advocacy on behalf of the husband by his brother, who the husband was adamant that he required as his representative, failed to constructively engage in the issues that required adjudication and prolonged the proceedings by way of unnecessary and inflammatory cross examination of the wife in respect to matters which were not germane to the issues to be determined.