Scala and Scala (No.2)

[2020] FCCA 38

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCALA & SCALA (No.2) [2020] FCCA 38

Catchwords:
FAMILY LAW – Costs – application for costs by successful applicant – whether costs should follow the event in respect of accrued jurisdiction claim for damages for breach of confidence – whether costs should be paid on an indemnity basis.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Giller & Procopets [2008] VSCA 238

Kappel & Carlsson (No.2) [2018] FCCA 2973

Kohan & Kohan [1993] FLC 92-340
Rakic & Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) (No.2) [2016] FCA 783
WayneGooley & Westpac Banking Corporation [1995] IRCA 132

Applicant: MS SCALA

Respondent: MR SCALA

File Number: DGC 1434 of 2018

Judgment of: Judge Burchardt

Hearing date: N/A

Date of Last Submission: 21 January 2020

Delivered at: Dandenong

Delivered on: 7 February 2020

REPRESENTATION

Counsel for the Applicant: Not applicable

Solicitors for the Applicant: Waters Lawyers

Counsel for the Respondent: Not applicable

Solicitors for the Respondent: James Mcconvill and Associates

ORDERS

1. The Respondent pay the Applicant’s costs in the sum of $9,200.00.

2. All extant applications are dismissed and removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Scala & Scala (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1434 of 2018

MS SCALA

Applicant

And

MR SCALA

Respondent

REASONS FOR JUDGMENT

1. In this matter, the Court handed down judgment on 10 December 2019.  Relevantly for these purposes, the Court divided the parties’ property in the proportions of 60 per cent to the Applicant and 40 per cent to the Respondent.  There was an equalisation of superannuation by agreement, and the Court ordered, additionally, that the Respondent pay the Applicant $70,000 for breach of confidence.  These Reasons for Judgment should be read in conjunction with the earlier ones.

2. The Applicant seeks costs on an indemnity or, alternatively, party-party basis.  The written submissions of the applicant seek that costs should be awarded on a lump sum basis to avoid the time, cost and expense of taxation. 

3. The matter proceeded by way of written submissions. The written submissions of the Applicant traverse the law in relation to indemnity costs and the terms of section 117 of the Family Law Act 1975 (Cth) in somewhat generalised terms. The gravamen of the submissions would seem to me to be in paragraph 13 where it is asserted that:

   Without going into detail over and above the matters contained in the Court’s judgment justify the award of costs on an indemnity basis.  To adopt the language of Sheppard J in Colgate Palmolive it is submitted that in this case the discretion should be exercised in favour of the Applicant and the Court would be easily justified in departing from the ordinary practice.

4. Reference was also made to a decision of Judge Wilson, as his Honour then was, in the matter of Kappel & Carlsson (No.2) [2018] FCCA 2973 and to…