Stinson & Goldsmith - [2020] FamCA 1115

FAMILY COURT OF AUSTRALIA
Stinson & Goldsmith [2020] FamCA 1115

File number(s): BRC 397 of 2018

Judgment of: CAREW J

Date of judgment: 23 December 2020

Catchwords: FAMILY LAW – COSTS – Discretion – Where the husband makes an application for costs – Where the matter was listed for trial but was adjourned – Where the husband does not seek costs on an indemnity basis but seeks costs of a specific sum exceeding party and party costs –Where an Order is made that the wife contribute the fixed sum of $33,000 towards the husband’s legal costs – Where the wife has 30 days to pay.

Legislation:
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:
Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-603

Di Carlo v Dubois & Ors [2002] QCA 225

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 FamLR 123

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

JELv DDF (2001) FLC 93-083

J P Morgan Portfolio Sevices Limited v Deloitte Touche Tohmatsu [2006] FCA 84

Kennon & Kennon (1997) FLC 92-757

Kohan and Kohan (1993) FLC 92-340

Maurice & Barry (No 2) [2019] FamCA 639

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Prantage v Prantage (2013) 49 Fam LR 197

Ragata Developments Pty Ltd v Westpac Banking Corporation (Federal Court of Australia, Davies J, 5 March 1993)

Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

Sfakianakis & Sfakianakis (2019) 59 Fam LR 419

Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6

Vanderclay Development Co Ltd v Inducon Engineering Ltd (1968) 1 DLR (3d) 337

Younghanns and Ors v Younghanns and Ors & Younghanns (2000) FLC 93-029

Number of paragraphs: 57

Date of last submission/s: 18 December 2020

Date of hearing: In chambers

Place: Brisbane

Counsel for the Applicant: Mr Kirk QC

Counsel for the Respondent: Mr Williams QC

Solicitor for the Applicant: Phillips Family Law

Solicitor for the Respondent: HopgoodGanim
ORDERS

BRC397/2018

BETWEEN:
MR STINSON

Applicant

AND:
MS GOLDSMITH

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

23 DECEMBER 2020

THE COURT ORDERS THAT:
1.The Respondent Wife contribute the fixed sum of $33,000 towards the Applicant Husband’s legal costs.
2.The Respondent Wife pay the said sum within 30 days of the date of this Order.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment…

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.

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Details

Case: [2020] FamCA 1115
Decision Date: 23 December 2020

CaseChat Overview and Summary

In the matter of *Stinson & Goldsmith*, Mr Stinson (the applicant husband) sought costs from Ms Goldsmith (the respondent wife) following an adjournment of a trial. The husband did not seek costs on an indemnity basis but rather a specific sum exceeding ordinary party and party costs. The proceedings had a complex history, including an appeal and remittal for rehearing, before being transferred to the Federal Circuit Court.

The central legal issue before Carew J was whether to exercise the court's discretion to order the wife to contribute a fixed sum towards the husband's legal costs, and if so, what that sum should be. This arose in the context of the husband's concerns about the wife's preparedness for trial, including delays in providing updated valuations, her failure to clearly specify the orders sought, and the late introduction of allegations of family violence and a potential *Kennon* argument.

Carew J reasoned that the wife's conduct had caused significant disruption and potential prejudice to the husband, necessitating the adjournment of the trial. The court found that the wife's failure to clearly articulate her sought orders, despite multiple amended responses and arguments to the contrary, demonstrated a lack of preparedness and contributed to the husband's concerns. While the immediate issues regarding valuations and the *Kennon* argument were addressed, the court considered the overall impact of the wife's actions on the efficient conduct of the proceedings.

Consequently, the court ordered the wife to contribute a fixed sum of $33,000 towards the husband's legal costs, to be paid within 30 days of the order.

Orders

Orders of the court

BRC397/2018

BETWEEN:

MR STINSON

Applicant

AND:

MS GOLDSMITH

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

23 DECEMBER 2020

THE COURT ORDERS THAT:

1. The Respondent Wife contribute the fixed sum of $33,000 towards the Applicant Husband’s legal costs.

2. The Respondent Wife pay the said sum within 30 days of the date of this Order.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons which follow, I propose to order that the wife contribute the fixed sum of $33,000 towards the husband’s costs. BRIEF BACKGROUND Judgment was delivered in the original proceedings on 12 April 2019 and the wife appealed. Her appeal was successful and on 2 December 2019, the matter was remitted for rehearing before a Federal Circuit Court Judge other than the primary Judge. On 1 July 2020, the matter was transferred to this Court and on 6 August 2020 new trial dates were allocated and trial directions made. The matter was relisted before me on 7 December 2020 as a result of the husband’s concerns that the matter may not be ready for trial for various reasons including:(a)The wife’s delay in informing the husband she required updated valuations;(b)The prejudice to the husband should he disagree with the valuation (yet to be provided) and wish to obtain an adversarial valuer;(c)The wife’s failure to specify with particularity the order to be sought by her at trial;(d)The wife’s raising for the first time in her affidavit of evidence in chief filed 20 November 2020 allegations of family violence and potentially a Kennon[1] argument; and (e)The wife’s failure to serve the annexures to her affidavit of evidence in chief filed on 20 November 2020. [1] Kennon & Kennon (1997) FLC 92-757 – relating to the consequences of a history of family violence on property proceedings. At the mention on 7 December 2020, the wife argued that her affidavit filed 20 November 2020 at [434] to [471] set out the order she seeks at trial and the reasons for same. In my view, a party should not have to wade through paragraph after paragraph of evidence in order to glean what might be said to be the terms of a final order sought at trial. The wife also argued that she has previously filed two Responses and therefore the husband could not be unaware of what order she was seeking at trial. The wife further argued that there was no order requiring her to file an further Amended Response and the precise terms of the order she is seeking at trial was only required to be included in the Outline of Case which was not due to be filed until three business days before the commencement of the trial. The fact that her latest further Amended Response filed on 8 December 2020 indicates that the 35 paragraphs of the order now sought by the wife are all different to that previously sought, demonstrates the folly of her submissions. By the time of the hearing on 7 December 2020 the parties had sourced an alternative valuer who was able to provide valuations in time for the trial. As a consequence, the trial was to proceed on the allocated dates. It was nevertheless noted that an application for an adjournment might be made by the husband depending upon what occurred between then and the trial. An order was made on 7 December 2020 requiring the wife to file and serve a Further Amended Response setting out with particularity the final order sought and serve the annexures to her affidavit by 4.00pm on 8 December 2020. The husband was given leave to file a reply affidavit to address any Kennon argument.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 397 of 2018
Judgment of:	CAREW J
Date of judgment:	23 December 2020
Catchwords:	FAMILY LAW – COSTS – Discretion – Where the husband makes an application for costs – Where the matter was listed for trial but was adjourned – Where the husband does not seek costs on an indemnity basis but seeks costs of a specific sum exceeding party and party costs –Where an Order is made that the wife contribute the fixed sum of $33,000 towards the husband’s legal costs – Where the wife has 30 days to pay.
Legislation:	Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
Cases cited:	Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Collins & Collins (1985) FLC 91-603 Di Carlo v Dubois & Ors [2002] QCA 225 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 FamLR 123 Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 JELv DDF (2001) FLC 93-083 J P Morgan Portfolio Sevices Limited v Deloitte Touche Tohmatsu [2006] FCA 84 Kennon & Kennon (1997) FLC 92-757 Kohan and Kohan (1993) FLC 92-340 Maurice & Barry (No 2) [2019] FamCA 639 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Prantage v Prantage (2013) 49 Fam LR 197 Ragata Developments Pty Ltd v Westpac Banking Corporation (Federal Court of Australia, Davies J, 5 March 1993) Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 Sfakianakis & Sfakianakis (2019) 59 Fam LR 419 Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6 Vanderclay Development Co Ltd v Inducon Engineering Ltd (1968) 1 DLR (3d) 337 Younghanns and Ors v Younghanns and Ors & Younghanns (2000) FLC 93-029
Number of paragraphs:	57
Date of last submission/s:	18 December 2020
Date of hearing:	In chambers
Place:	Brisbane
Counsel for the Applicant:	Mr Kirk QC
Counsel for the Respondent:	Mr Williams QC
Solicitor for the Applicant:	Phillips Family Law
Solicitor for the Respondent:	HopgoodGanim

ORDER MADE BY:	CAREW J
DATE OF ORDER:	23 DECEMBER 2020