ROLAND & ARGENTO - [2019] FamCA 749

FAMILY COURT OF AUSTRALIA

ROLAND & ARGENTO

[2019] FamCA 749

FAMILY LAW – COSTS – Costs application made by the administrator for estate of the late applicant husband as agreed or assessed on an indemnity basis – Consideration of applicable principles – Where no basis for indemnity costs – Where appropriate that there be an order for costs on a party/party basis – Where appropriate to certify engagement of Senior Counsel – Where orders made accordingly.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell and Anor (No.2) [2018] FamCAFC 180
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
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
Roland & Argento and Anor [2019] FamCA 550

APPLICANT:

Mr F as legal representative of the deceased husband Mr Roland

RESPONDENT:

Ms Argento

FILE NUMBER:

PAC

2474

2013

DATE DELIVERED:

17 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 26 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Norris Somers Maait Lawyers

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy Solicitor

Orders

That the respondent wife pay the applicant’s costs of and incidental to the application for substitution determined by orders made 15 August 2019 as agreed within one month from this date or otherwise as assessed on a party/party basis.
It is certified under Rule 19.50 of the Family Law Rules 2004 (Cth) that it was reasonable to engage Senior Counsel.

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 Roland & Argento 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 PARRAMATTA

FILE NUMBER: PAC 2474 of 2013

Mr F as legal representative of the deceased husband Mr Roland

Applicant

And

Ms Argento

Respondent

REASONS FOR JUDGMENT

In the context of ongoing property proceedings and in circumstances where the applicant husband in primary proceedings for property adjustment died in 2016, the Court made orders on 15 August 2019 as follows:
(1)That pursuant to Rule 6.15 of the Family Law Rules 2004 (Cth) Mr F as legal representative of the deceased husband Mr Roland be…

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

AGLC: ROLAND & ARGENTO [2019] FamCA 749
Case: [2019] FamCA 749
Decision Date: 17 October 2019

CaseChat Overview and Summary

The applicant husband sought costs orders against the respondent wife following an application for substitution of an Independent Children's Lawyer, which had been determined by orders made on 15 August 2019. The matter came before Foster J in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the respondent wife should be ordered to pay the applicant husband's costs of and incidental to the application for substitution. This required the Court to consider the general principles governing costs in family law proceedings, particularly in circumstances where an application has been determined.

Foster J ordered that the respondent wife pay the applicant husband's costs of and incidental to the application for substitution, to be agreed within one month or otherwise assessed on a party/party basis. The Court further certified that it was reasonable to engage Senior Counsel for the application, pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth).

Orders

Orders of the court

That the respondent wife pay the applicant’s costs of and incidental to the application for substitution determined by orders made 15 August 2019 as agreed within one month from this date or otherwise as assessed on a party/party basis.

It is certified under Rule 19.50 of the Family Law Rules 2004 (Cth) that it was reasonable to engage Senior Counsel.

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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