Sofous and Cethenes and Ors (No 2) - [2012] FamCA 754

FAMILY COURT OF AUSTRALIA

SOFOUS & CETHENES AND ORS (NO. 2)

[2012] FamCA 754

FAMILY LAW – COSTS – where orders made effecting property settlement between the applicant and first respondent – where the first, second and third respondents sought an order declaring that the first respondent’s interest in a property was held on trust for the second and third respondents – where it was ultimately found that the first respondent did not hold her interest in the property on trust – where the applicant made several genuine and reasonable attempts to resolve the proceedings – where the applicant seeks an order that the respondents pay his costs of and incidental to the proceedings – whether an order for costs should be made – where orders made requiring the first and second and third respondents to each pay a portion of the applicant’s costs.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248
Latoudis v Casey (1990) 170 CLR 534
Lenova & Lenova (Costs) [2011] FamCAFC 141
McAlpin v McAlpin (1993) FLC 92-411
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Sofous

1^st RESPONDENT:

Ms Cethenes

2^nd RESPONDENT:

Mr Cethenes Senior

3^rd RESPONDENT:

Ms Cethenes Senior

FILE NUMBER:

SYC

3049

2009

DATE DELIVERED:

31 August 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Chambers

JUDGMENT OF:

Murphy J

HEARING DATE:

By way of written submissions filed on 24 April 2012 by the Applicant and 11 May 2012 by the Second and Third Respondents.

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Rosanna Tyler Solicitor

SOLICITOR FOR THE 1^ST RESPONDENT:

S Kourkoulis & Associates

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS:

Barbayannis Lawyers

Orders

IT IS ORDERED THAT

Pursuant to s 117 of the Family Law Act 1975 (Cth):
(a)The wife shall pay the husband’s costs of and incidental to these proceedings fixed in the sum of $5,000.00 to be paid to the trust account of the solicitors for the husband within seven (7) days of the date of this order.
(b)The second and third respondents shall pay the husband’s costs of and incidental to these proceedings, fixed in the sum of $20,000.00 to be paid to the trust account of the solicitors for the husband within seven (7) days of the date of this order.
Interest at the rate prescribed from time to time in the Family Law Rules 2004 (Cth) shall be payable on any such amount not paid within the time frame prescribed in these orders.

IT IS NOTED that publication of this judgment under the Sofous & Cethenes and Ors (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC3049/2009

Mr Sofous

Applicant

And

Ms Cethenes

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 Sofous and Cethenes and Ors (No 2)

Details

AGLC: Sofous and Cethenes and Ors (No 2) [2012] FamCA 754
Case: [2012] FamCA 754
Decision Date

CaseChat Overview and Summary

In *Sofous & Cethenes and Ors (No. 2)*, the Family Court of Australia considered an application for costs following property settlement orders. The applicant, Mr Sofous, sought costs against the first respondent, Ms Cethenes, and the second and third respondents, Mr and Ms Cethenes Senior, who had unsuccessfully pursued a claim that Ms Cethenes held her interest in a property on trust for them.

The central legal issue before the Court was whether, in light of the unsuccessful trust claim and the conduct of the parties, an order for costs should be made against the respondents, and if so, on what basis and in what amount. The Court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth), which governs costs in family law proceedings, and the various factors that might justify a departure from the general rule that parties bear their own costs.

Justice Murphy determined that the circumstances warranted an order for costs in favour of the applicant. The Court found that the trust claim pursued by the respondents was wholly unsuccessful. Furthermore, the applicant had made genuine and reasonable attempts to resolve the proceedings through settlement offers, which were not ultimately accepted. While acknowledging the financial and health circumstances of the respondents, the Court concluded that these did not preclude an order for costs, nor did they justify an order for indemnity costs. The Court ordered the first respondent to pay $5,000 towards the applicant's costs and the second and third respondents to pay $20,000 towards the applicant's costs.

Orders