SKINNER & CLUNY

Case [2011] FamCA 429


FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY [2011] FamCA 429

FAMILY LAW - ORDERS – Contravention – Where the husband brought contravention application and was unsuccessful – Where the alleged contraventions were dismissed

FAMILY LAW - COSTS – Application for indemnity costs by the respondent wife – Where the application for indemnity costs was refused - Circumstances justifying order for costs on a solicitor and client basis

Family Law Act 1975 (Cth), ss 70NAC, 70NAE, 70 NCA, 70 NCB, 117
Family Law Rules 2004 (Cth), r 19.18
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248, applied
Calderbank v Calderbank [1976] Fam 93, applied
Davida & Davida (Costs) [2011] FamCAFC 61, applied
Fennessy v Gregorian (2009) FLC 93-399, applied
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202, discussed
In the Marriage of Vlug & Poulos (1997) 141 FLR 244, applied
Kohen & Kohen (1993) FLC 92-340, applied
Limousin v Limousin [2007] FamCA 1178, cited
Pickering & Pickering (No. 2) [2010] FamCA 981, cited
Ragata Developments Pty Limited v Westpac Banking Corporation, unreported, Federal Court of Australia, 5 March 1993
Stephens & Stephens & Anor (enforcement) (Costs) [2010] FamCAFC 172
Tasman & Tisdall [2008] FamCA 458, cited
Yates & Turner (No. 3) [2009] Fam CA 887, cited
Yunghanns v Yunghanns (2000) FLC 93-029, applied
APPLICANT:

Mr Skinner

RESPONDENT: Ms Cluny
FILE NUMBER: BRC 812 of 2010
DATE DELIVERED: 10 June 2011
PLACE DELIVERED: Melbourne
PLACE HEARD: Brisbane
JUDGMENT OF: Young J
HEARING DATE: 3 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper
SOLICITOR FOR THE APPLICANT: Barry Nilsson lawyers
COUNSEL FOR THE RESPONDENT: Mr Hackett
SOLICITOR FOR THE RESPONDENT: Hirst & Co

IT IS ORDERED:

  1. That the husband’s Contravention Application filed 1 December 2010 be dismissed.

  2. That the wife’s application for legal costs of and incidental to the hearing to be assessed on an indemnity costs basis be dismissed.

  3. That otherwise the husband pay the wife’s legal costs of and incidental to the hearing on 3 June 2011 on a solicitor and client basis and such costs be fixed in the sum of $10,000 and be paid within 30 days of the delivery of these orders.

  4. That if the payment of costs be in default then interest accrue on such sum as is in default at the rate prescribed in Rule 17.03 of the Family Law Rules 2004 (Cth) and be calculated and paid quarterly in arrears.

  5. That subject to the discretion of Murphy J, all extant applications be otherwise adjourned for hearing before his Honour, for a one day hearing, on 14 June 2011 or on such other date as may be fixed by the Court.

IT IS CERTIFIED

  1. That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel for the wife and solicitor appearing for the husband.

IT IS NOTED

A.The husband advised…

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SKINNER & CLUNY [2011] FamCA 429
Case
[2011] FamCA 429
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CaseChat Overview and Summary

In *Skinner & Cluny*, the Family Court of Australia considered a husband's application alleging contravention of court orders by the wife, which was ultimately dismissed. Following this unsuccessful contravention application, the wife sought indemnity costs from the husband.

The primary legal issues before the court were whether the husband had contravened the relevant court orders, and if not, whether the circumstances warranted an order for the husband to pay the wife's costs on an indemnity basis (solicitor and client costs).

Young J found that the husband had not established the alleged contraventions by the wife. In relation to costs, his Honour declined to make an order for indemnity costs. The court applied the general principle that costs follow the event, but noted that an award of indemnity costs is exceptional and requires specific circumstances to be demonstrated, which were not present in this instance.

Consequently, the court made no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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