Schaber & Joseph (No 2) - [2022] FedCFamC1F 1050

Federal Circuit and Family Court of Australia
(DIVISION 1)
Schaber & Joseph (No 2) [2022] FedCFamC1F 1050

File number(s): BRC 8664 of 2021

Judgment of: HOGAN J

Date of judgment: 21 December 2022

Catchwords: FAMILY LAW – COSTS – Where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – Where costs are ordered in a fixed amount.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

D & D Costs (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64

Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23

In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116

Limousin v Limousin (Costs) (2008) 38 Fam LR 478; [2007] FamCA 1178

Nevins & Urwin (No 3) [2022] FedCFamC1F 201

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: First Instance

Number of paragraphs: 12

Date of hearing: Determined in Chambers following the receipt of written submissions

Place: Brisbane

Solicitor for the Applicant: Hartley Family Law by way of written submissions filed 26 October 2022

Solicitor for the Respondent: Lander & Rogers (Brisbane) by way of written submissions in response filed 9 November 2022
ORDERS

BRC 8664 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SCHABER

Applicant

AND:
MR JOSEPH

Respondent

order made by:

HOGAN J

DATE OF ORDER:

21 DeceMBER 2022

THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Respondent pay, within 28 days of the date of this order, the Applicant’s costs of and incidental to applications determined at the hearing on 15 October 2021.
2.Pursuant to Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the costs referred to in Order 1 shall be fixed in the amount of $19,740.86.

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 Schaber…

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 Schaber & Joseph (No 2)

Details

AGLC: Schaber & Joseph (No 2) [2022] FedCFamC1F 1050
Case: [2022] FedCFamC1F 1050
Decision Date

CaseChat Overview and Summary

Schaber & Joseph (No 2) concerns a dispute between the Applicant, Ms Schaber, and the Respondent, Mr Joseph. Ms Schaber sought an order that Mr Joseph pay her costs of and incidental to the hearing on 15 October 2021, either on the indemnity or party/party basis, and that the amount of costs be fixed. Mr Joseph opposed the making of any order as to costs and, if such an order were made, he submitted that it should be calculated on the party/party basis and limited to a fixed amount. The Federal Circuit and Family Court of Australia (Division 1) was required to decide the legal issues of whether the circumstances justified the making of an order as to costs, the basis upon which the costs should be calculated, and whether the costs should be fixed in a particular amount.

The court considered the submissions of both parties and the relevant legislation and principles. Section 117 of the Family Law Act 1975 (Cth) provides that each party to proceedings under the Act shall bear their own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just. The court was not persuaded that it was just to make an order reserving the costs until the determination of the trial and concluded that it was appropriate to resolve the application for costs sooner rather than later. The court was persuaded that the circumstances justified the making of an order that Mr Joseph pay Ms Schaber's costs and that it was just for him to do so. The court was not persuaded that the circumstances were exceptional or such as to justify the making of an order that the costs be calculated on an indemnity basis, and it was appropriate and just that the costs be calculated on the party and party basis. The court also considered it appropriate to fix the amount of costs payable by Mr Joseph to Ms Schaber.

The court ordered that Mr Joseph pay Ms Schaber's costs of and incidental to the applications determined at the hearing on 15 October 2021, within 28 days of the date of the order. The court fixed the amount of costs payable by Mr Joseph to Ms Schaber at $19,740.86.

Orders