Romano and June (Costs) - [2013] FamCA 901

FAMILY COURT OF AUSTRALIA

ROMANO & JUNE (COSTS)

[2013] FamCA 901

FAMILY LAW – COSTS – Circumstances justifying order – Where the husband was not wholly unsuccessful – Where the wife was not wholly successful – Assessment – Where costs are ordered on a party and party basis.

Family Law Act 1975 (Cth) s 117(1), s 117(2), s 117(2A)
Family Law Rules 2004 (Cth) r 19.08

Yunghanns & Ors and Yunghanns & Ors and Yunghann [2000] FamCA 681
Colgate Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Romano

RESPONDENT:

Mr June

FILE NUMBER:

BRC

3679

2010

DATE DELIVERED:

16 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

2 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Bowen Buchbinder Vilensky

Orders

That the husband pay the wife an amount equal to 50% of the wife’s costs of the property adjustment proceedings from their commencement in the Federal Magistrates Court (as it then was) on a party and party basis.
That for the purpose of paragraph 1, the wife’s costs of the property adjustment proceedings be determined by agreement and failing agreement as assessed by a registrar pursuant to Chapter 19 of the Family Law Rules 2004.
That the husband pay the wife’s solicitor’s costs of defending the husband’s application to restrain the wife’s solicitor from continuing to represent the wife in the substantive proceedings at an amount fixed in the sum of $4,942.38.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Romano & June (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3679 of 2010

Ms Romano

Applicant

And

Mr June

Respondent

REASONS FOR JUDGMENT

I gave judgment in substantive property adjustment proceedings between the husband and the wife in this matter on 17 May, 2013. The trial was complex and took many days to complete. My reasons for judgment were eighty-nine pages in length. There had also been many applications heard and determined in the lead up to the trial. Much was in dispute between the parties, but the most significant dispute was as to what constituted the parties’ property that was to be subject to the Court’s property adjustment powers.
The wife had asserted that the husband had interests in property worth many millions of dollars that he did not disclose. The husband denied those interests and asserted they were the interests of third parties, whose identities he was prevented from disclosing. I determined that the husband was not being honest about those matters. I determined that several of the witnesses whose evidence the husband also relied upon, close friends and colleagues of his, were also not being honest about those matters. Ultimately, the Orders I made provided…

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 Romano and June (Costs)

Details

AGLC: Romano and June (Costs) [2013] FamCA 901
Case: [2013] FamCA 901
Decision Date

CaseChat Overview and Summary

In *Romano & June (Costs)*, the Family Court of Australia was asked to determine an application for costs made by the wife following substantive property adjustment proceedings. The proceedings were complex and lengthy, involving significant disputes over the parties' undisclosed property interests. The wife had asserted that the husband had failed to disclose millions of dollars in assets, and the Court found that both the husband and some of his witnesses had been dishonest in their evidence. Ultimately, the Court's orders in the substantive proceedings resulted in the wife retaining property of significantly greater value than the husband had contended she should receive. The Court was also required to determine an application by the wife's solicitor for costs incurred in defending an unsuccessful application by the husband to restrain the solicitor from acting for the wife.

The primary legal issues before the Court were whether circumstances justified an order for costs against the husband, and if so, on what basis and to what extent. Specifically, the Court considered the application of sections 117(1), 117(2), and 117(2A) of the *Family Law Act 1975* (Cth) and Rule 19.08 of the *Family Law Rules 2004* (Cth) regarding the Court's discretion to award costs. The wife sought indemnity costs, or alternatively, a fixed sum representing her total incurred costs, while the husband argued for deferral of the costs application pending an appeal, and later, that certain findings against the wife's credit mitigated against a substantial costs order.

The Court reasoned that while the general principle under section 117(1) of the *Family Law Act* is that parties bear their own costs, section 117(2) allows for orders where circumstances justify it, having regard to the factors in section 117(2A). The Court found that the husband's dishonesty and combative approach had significantly increased the complexity, difficulty, and expense of the proceedings for the wife. Although neither party was wholly successful, the wife was found to be more successful in the outcome. However, the Court declined to award indemnity costs or the wife's full claimed costs, noting that the wife had also failed to be entirely truthful before the Court. Instead, the Court ordered the husband to pay 50% of the wife's costs of the property adjustment proceedings on a party and party basis, to be determined by agreement or assessment. Regarding the wife's solicitor's application, the Court found the husband's application to restrain the solicitor was wholly unsuccessful and thus justified a costs order. However, it did not award the full amount claimed, instead fixing the amount payable by the husband to the wife's solicitor at $4,942.38, calculated according to the Itemised Scale of Costs in Schedule 3 of the *Family Law Rules 2004*.

Orders