Sahin & Kilgore - [2023] FedCFamC1F 774

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sahin & Kilgore [2023] FedCFamC1F 774

File number(s): MLC 14220 of 2022

Judgment of: CARTER J

Date of judgment: 8 September 2023

Catchwords: FAMILY LAW – COSTS – Where the proposed third party sought costs against the wife – where the wife sought the husband pay any costs order against the proposed third party – where the wife sought costs against the husband – costs fixed and ordered in favour of the proposed third party – where the wife is to pay those costs – no other order made as to costs.

Legislation:
Family Law Act 1975 (Cth) s. 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr. 12.17, 12.13

Cases cited:
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

Harris & Dewell (No 2) (2018) FLC 93-863

Kohan and Kohan (1993) FLC 92-340

Munday v Bowman (1997) FLC 92-784

Prantage & Prantage (2013) FLC 93-544

Division: Division 1 First Instance

Number of paragraphs: 41

Date of last submissions: 30 August 2023

Date of hearing: In chambers

Place: Melbourne

Solicitor for the Applicant: Mills Oakley

Solicitor for the Respondent: Farrar Gesini Dunn

Solicitor for the Other: Barry Nilsson
ORDERS

MLC 14220 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SAHIN

Applicant

AND:
MR KILGORE

Respondent

MR B & ORS

Other

ORDER MADE BY:

CARTER J

DATE OF ORDER:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The wife pay the costs of Mr B & Ors fixed at $8,000 within 60 days.
2.The costs applications arising out of the wife’s Application in a Proceeding filed 12 May 2023 be otherwise dismissed.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

On 27 June 2023 I heard submissions regarding the wife’s Application in a Proceeding filed 12 May 2023 to join third parties to the substantive property proceedings between the husband and the wife in order to effect the sale of a property in Suburb C. I also heard oral arguments regarding the wife’s assertion that the husband had not complied with an order to pay her membership to a club.
In an oral judgment delivered on 28 June…

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: [2023] FedCFamC1F 774
Decision Date

CaseChat Overview and Summary

In Sahin & Kilgore, the Federal Circuit and Family Court of Australia (Division 1) addressed the issue of costs in a family law dispute involving the wife, husband, and proposed third parties. The wife had sought to join third parties to the proceedings, a request which was ultimately dismissed by the court. The proposed third parties sought costs against the wife, while the wife argued that the husband should bear those costs. The court had to determine whether a costs order should be made in favour of the proposed third parties, and if so, on what basis and who should bear the costs.

The court found that the proposed third parties were not parties to the proceedings but had a legitimate interest in the outcome. It held that there were circumstances justifying a costs order in their favour, as they were innocent and bona fide investors who had been unnecessarily dragged into the proceedings. However, the court was not satisfied that there were circumstances justifying a costs order against the husband or the wife. The court also determined that an indemnity costs order was not appropriate, as the case did not meet the criteria for such an exceptional order. Instead, the court fixed the costs at $8,000, which the wife was ordered to pay. The court rejected the wife's argument that the husband should bear the costs, as the application had been brought by the wife and the husband's alleged poor conduct remained in dispute.

The court's reasoning was based on the principles set out in the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It considered the factors relevant to the exercise of discretion in awarding costs, including the importance and complexity of the issues, the behaviour of the parties, and the rates ordinarily payable to lawyers in comparable proceedings. The court also noted that costs usually follow the event and that the proposed third parties had been put to expense and inconvenience by the wife's unsuccessful application to join them to the proceedings. The court's decision highlights the importance of considering the specific circumstances of each case when determining costs in family law matters.

Orders