Spark and Bernard (No.2) - [2014] FCCA 2392

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPARK & BERNARD (No.2)

[2014] FCCA 2392

Catchwords:
FAMILY LAW – Costs – application for costs – application for costs in property proceedings – where applicant wholly successful in property proceedings – conduct of the parties to the proceedings – where applicant made two written offers of settlement – where respondent was wholly unsuccessful in the proceedings – imprudent refusal of offers of settlement – where costs sought on a party and party basis in accordance with Rules.

Legislation:

Family Law Act 1975 (Cth), ss.95, 117

Federal Circuit Court Rules 2001, Sch.1, Part 1

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Spark & Bernard [2014] FCCA 866

Applicant:

MR SPARK

Respondent:

MS BERNARD

File Number:

SYC 2856 of 2012

Judgment of:

Judge Scarlett

Hearing date:

In chambers

Date of Last Submission:

13 August 2014

Delivered at:

Sydney

Delivered on:

20 October 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

The Respondent:

In person

ORDERS

The Respondent is to pay the Applicant’s costs in the sum of $19,169.14.
The Respondent is allowed three (3) months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Spark & Bernard (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 2856 of 2012

MR SPARK

Applicant

And

MS BERNARD

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for costs by a successful Applicant in property proceedings finalised by a decision of this Court handed down on 30^th April 2014 (Spark & Bernard[1]). In that decision, an Order was made that under s.90SM of the Family Law Act 1975 (Cth) that the Respondent should pay to the Applicant by way of settlement of property the sum of $162,555.00 within three months.
[1] [2014] FCCA 866
An order was also made that:
Any party who seeks an Order for Costs must file and serve an Application in a Case and an affidavit setting out the amount of costs sought and how such an amount is calculated within one (1) month from the date of this Order.
The Applicant’s solicitor filed an Application in a Case and an affidavit in support on 27^th May 2014, within the time prescribed by the Order. The Applicant seeks an amount of $19,169.04 in costs and disbursements under the provisions of Schedule 1, Part 1 of the Federal Circuit Court Rules 2001.
The Respondent has filed a Response to an Application in a Case and two affidavits, one by herself and one by Ms R, on 13^th August 2014. In her Response, the Respondent seeks (relevantly) an order that the parties should pay their own costs.

Evidence

The Applicant relies on an affidavit affirmed by his solicitor, Jodie Sue Jamieson, on 26^th May 2014, in which she sets out that her client…

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 Spark and Bernard (No.2)

Details

AGLC: Spark and Bernard (No.2) [2014] FCCA 2392
Case: [2014] FCCA 2392
Decision Date: 20 October 2014

CaseChat Overview and Summary

In *Spark and Bernard (No.2)*, the Supreme Court of Victoria was asked to determine the quantum of costs to be paid by the respondent to the applicant. The dispute concerned the finalisation of costs following earlier proceedings between the parties.

The primary legal issue before the Court was to assess the reasonableness and proportionality of the costs claimed by the applicant, and whether these costs should be awarded in full. The Court was required to consider the nature of the proceedings, the work undertaken by the applicant's legal representatives, and any relevant rules or principles governing the assessment of costs.

Judge Scarlett applied the principles of indemnity costs, considering the complexity of the matter and the conduct of the parties. The Court found that the costs claimed were reasonable and necessary for the proper conduct of the litigation. Consequently, the Court ordered the respondent to pay the applicant's costs in the sum of $19,169.14, allowing the respondent three months to satisfy this payment.

Orders

Orders of the court

The Respondent is to pay the Applicant’s costs in the sum of $19,169.14.

The Respondent is allowed three (3) months to pay.

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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