Samper & Samper - [2022] FedCFamC2F 1124

Federal Circuit and Family Court of Australia
(DIVISION 2)
Samper & Samper [2022] FedCFamC2F 1124

File number(s): SYC 2499 of 2015

Judgment of: JUDGE ELDERSHAW

Date of judgment: 25 August 2022

Catchwords: FAMILY LAW – COSTS – Where final property orders were made in 2020 – Where the wife seeks costs on an indemnity basis – Where the wife alternatively seeks costs on a party/party basis – Where the husband opposes all costs applications against him – Where the wife made offers to settle – Where the husband did not respond to the offers to settle – Where the husband failed to provide proper disclosure – Where the husband shall pay the wife of an incidental to the substantive proceedings on an indemnity basis – Where the husband shall pay the wife of and incidental to the application for costs on a party/party basis – Where there is certify for counsel

Legislation:
Family Law Act 1975 (Cth) ss 79, 117

Family Law Rules2004 (Cth) r 10.06

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.11(2), 12.17

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 1250

Black & Kellner (1992) FLC 92-287; [1992] FamCA 2

Browne & Green (2002) FLC 93-115; [2002] FamCA 791

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

I & I (No. 2) (1995) FLC 92–625; [1995] FamCA 80

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfoldv Penfold (1980) 144 CLR 311

Rimac & Rimac (No 2) [2022] FedCFamC1F 159

Weir & Weir (1993) FLC 92-338; [1992] FamCA 69

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 8 August 2022

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Barry Nilsson Lawyers

Counsel for the Respondent: Mr Hodgson

Solicitor for the Respondent: Madison Marcus Law Firm
ORDERS

SYC 2499 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SAMPER

Applicant

AND:
MR SAMPER

Respondent

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

25 AUGUST 2022

THE COURT ORDERS THAT:
1.Within 28 days from the date of these Orders, the husband pay to the wife the costs of, and incidental to, the proceedings instituted by the Initiating Application filed 30 July 2015, and the Application in a Case filed by the wife on 2 May 2017, including, but not limited to, the costs of the hearing and costs of Senior Counsel fixed pursuant to rule 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in the amount of $277,330.
2.Within 28 days from the date of these Orders, the husband pay to the wife costs of, and incidental to, the Application for Costs filed 3 August 2020 on a…

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 Samper & Samper

Details

AGLC: Samper & Samper [2022] FedCFamC2F 1124
Case: [2022] FedCFamC2F 1124
Decision Date

CaseChat Overview and Summary

The case of Samper & Samper was an application for costs made by Ms Samper (the wife) against Mr Samper (the husband) following final property orders made in 2020. The wife sought costs on an indemnity basis, and alternatively, on a party/party basis. The husband opposed all costs applications against him. The court considered the financial circumstances of each party, the conduct of the parties in relation to the proceedings, and the offers made to settle the proceedings. The court found that the husband's failure to respond to the wife's offers to settle, and his imprudent refusal of reasonable offers, justified the making of an order that the husband pay the wife's costs of, and incidental to, the substantive proceedings. The court ordered that the husband pay the wife's costs of the substantive proceedings on an indemnity basis, and the costs of the ancillary costs application on a party/party basis. The court also certified for senior counsel. The final orders were that the husband pay the wife $277,330 for the costs of the substantive proceedings and $40,144 for the costs of the ancillary costs application, both within 28 days from the date of the orders.

Orders