Somers and Collier (No.2)

[2017] FCCA 2571

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & COLLIER (No.2) [2017] FCCA 2571

Catchwords:
FAMILY LAW – Costs application in relation to proceedings for declaration of de facto relationship – indemnity costs sought – jurisdictional issue raised and rejected – financial circumstances – conduct – consideration of offers of settlement – costs ordered on a party/party basis.

Legislation:

Civil Procedure Act 2005 (NSW), s.98
Federal Circuit Court Act 1999, ss.10, 18
Family Law Act 1975 (Cth), ss.4, 4AA, 117, 90RD
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s.86
Federal Circuit Court Rules 2001, Sch.1

Cases cited:

Barry & Dalrymple (Costs) [2011] FamCA 365

Biggar & Crow [2017] FamCA 594

Browne & Green [2002] FamCA 791

Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536
Darrow & Malden & Ors (No 2) [2017] FamCA 660
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Madin & Palis [2016] FamCAFC 25
Penfold v Penfold (1980) 144 CLR 311
Vize & Gadsden [2016] FamCAFC 167

Applicant: MS COLLIER

Respondent: MR SOMERS

File Number: SYC 7198 of 2013

Judgment of: Judge Sexton

Hearing date: 5 October 2017

Date of Last Submission: 5 October 2017

Delivered at: Sydney

Delivered on: 24 October 2017

REPRESENTATION

Counsel for the Applicant: Ms Barnett

Solicitors for the Applicant: Watts McCray

Solicitors for the Respondent: Schultz Toomey O’Brien Lawyers

THE COURT ORDERS THAT:

1. The Respondent to the Application in a Case filed on 27 July 2016 pay the costs of the Applicant in the sum of $25,000 by payment to the Applicant’s solicitors within 14 days.

2. The Application for costs of the costs application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7198 of 2013

MS COLLIER

Applicant

And

MR SOMERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a costs application brought by the respondent to proceedings for a declaration under s.90RD of the Family Law Act 1975. The application for the declaration was dismissed on 30 June 2016.  An appeal against that decision was dismissed on 11 July 2017 with costs.  

2. The Applicant in these proceedings (“the Applicant”) seeks indemnity costs of $81,538.51, or in the alternative, party/party costs as assessed. At the hearing, the Applicant’s counsel agreed with the Respondent’s figure that if calculated in accordance with Schedule 1 of the Federal Circuit Court Rules, the costs would be $24,498 (+$154 +$305 in disbursements), a total of $24,957. The Applicant also seeks her costs of the costs application on an indemnity basis. The Respondent asks that both Applications be dismissed, or in the alternative payment of party/party costs in a fixed sum in relation to the trial only.

3. The Applicant’s counsel argues that the Court must apply N.S.W. law to the Application, because the Court has no jurisdiction to apply the costs power conferred by the