Southern & Southern - [2022] FedCFamC1F 1045

Federal Circuit and Family Court of Australia
(DIVISION 1)
Southern & Southern [2022] FedCFamC1F 1045

File number(s): LEC 629 of 2011

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:
Corporations Act 2001 (Cth)

Family Law Act 1975 (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

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

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

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

Division: First Instance

Number of paragraphs: 37

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

Place: Brisbane

Solicitor for the Applicant: Barry.Nilsson Lawyers by way of written submissions filled 24 October 2022

Counsel for the First Respondent: Mr Balzamo by way of written submissions filed 3 January 2020 and by way of written submissions in reply filed 17 November 2022

Solicitor for the First Respondent: Hannigans Lawyers and then Pennisi Zia Lawyers from 23 September 2022

Solicitor for the Second Respondent: Juratowitch & Kite

Solicitor for the Third Respondent: Gilchrist Connell

Solicitor for the Fourth Respondent: Hannigans Lawyers and then Pennisi Zia Lawyers from 12 December 2022

Solicitor for the Interveners: O’Neill Family Law by way of written submissions filed 24 October 2022
ORDERS

LEC 629 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SOUTHERN

Applicant

AND:
MS SOUTHERN

First Respondent

B & C (AS TRUSTEES IN BANKRUPTCY)

Second Respondent

J LAW FIRM (and another named in the Schedule)

Third Respondent

MR F SOUTHERN

First Intervener

MS G SOUTHERN

Second Intervener

order made by:

HOGAN J

DATE OF ORDER:

21 december 2022

THE COURT ORDERS THAT:
1.The Applicant pay the First Respondent’s costs of and incidental to the proceedings by which he sought an order setting aside the Binding Financial Agreement into which he and the First Respondent had entered on 23 August 2010, with such costs to be fixed in the amount of $40,000 and the interest accrued on that amount since its deposit into trust following the making of the order for security for costs on 25 January 2016.
2.The amount currently held by Hannigan’s Lawyers, Solicitors and Attorneys on trust pursuant to an order for security for costs made on 25 January 2016 (being the amount of $40,000 and any interest which has subsequently accrued on the same), be paid forthwith to or at the direction of the First Respondent in satisfaction of the amount owing to her by the Applicant pursuant to Order 1.
3.Save as provided above, the First Respondent’s application for an order that the…

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 Southern & Southern

Details

AGLC: Southern & Southern [2022] FedCFamC1F 1045
Case: [2022] FedCFamC1F 1045
Decision Date

CaseChat Overview and Summary

In the matter of Southern & Southern, the court was tasked with deciding an application for costs made by the First Respondent, Ms Southern, against the Applicant, Mr Southern, and the Intervenors, the Applicant's parents, in relation to proceedings in which the Applicant sought to set aside a Binding Financial Agreement entered into with the First Respondent. The First Respondent sought an order for costs on an indemnity basis, or alternatively on a party and party basis, in the amount of $172,484.54. The Applicant and the Intervenors opposed the making of any order for costs. The court found that while the circumstances did justify an order for costs, they did not warrant an order for costs on an indemnity basis. Instead, the court ordered that the Applicant pay the First Respondent's costs in the amount of $40,000, together with interest accrued on that sum since it was deposited into trust, in satisfaction of an earlier order for security for costs. The court dismissed the First Respondent's application for an order that the Intervenors pay her costs and the Intervenors' application for an order that the First Respondent pay their costs of responding to her application for costs.

In reaching its decision, the court considered the submissions made by each party and the relevant legislation and authorities. The court found that the Applicant's case to set aside the Binding Financial Agreement was without merit and had no prospects of success, and that the Applicant's conduct throughout the litigation contributed significantly to the First Respondent's costs. However, the court was not persuaded that the circumstances were exceptional or extreme enough to warrant an order for costs on an indemnity basis. Instead, the court ordered that the Applicant pay the First Respondent's costs in the amount of $40,000, together with interest accrued on that sum since it was deposited into trust, in satisfaction of an earlier order for security for costs. The court also dismissed the First Respondent's application for an order that the Intervenors pay her costs and the Intervenors' application for an order that the First Respondent pay their costs of responding to her application for costs.

Orders