FAMILY COURT OF AUSTRALIA
| STOIAN & FIENING (COSTS) | [2014] FamCA 944 |
| FAMILY LAW – COSTS – Costs order of a specific amount – principles to be applied in ordering a fixed sum in lieu of assessment – circumstances where order for costs in a fixed amount ought be made – Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) read with main purpose of Rules (Rule 1.04) and achieving main purpose (Rule 1.07) FAMILY LAW – COSTS – Conduct justifying an order for indemnity costs of an issue FAMILY LAW – COSTS – Offer of settlement – whether sufficient to justify an order for indemnity costs |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Kohan & Kohan (1993) FLC 92-340 Munday v Bowman (1997) FLC 92-784 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage (2013) FLC 93-544 Robinson & Higginbotham (1991) FLC 92-209 |
| APPLICANT: | Ms Stoian |
| RESPONDENT: | Mr Fiening |
| FILE NUMBER: | BRC | 8141 | of | 2011 |
| DATE DELIVERED: | 3 November 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | By way of written submissions filed 1 August 2014; 3 and 10 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPLICANT: | Keating Lehn Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Nelson |
| SOLICITOR FOR THE RESPONDENT: | Martin Solicitors |
Orders
It is ordered that:
The husband shall pay to the wife:
(a)all of the wife’s costs of and incidental to the issue of the Type O boat “AB” (“the boat”) on an indemnity basis including, but not limited to:
(i)all costs incurred in seeking disclosure from the husband in relation to the boat, including in respect of its sale;
(ii)all costs incurred in her solicitors corresponding or communicating with the husband or his solicitors or with the brokerage firm of Mr P concerning the boat;
(iii)all costs incurred in association with obtaining and filing the affidavit of Mr C;
(iv)the wife’s costs of and incidental to the directions hearing before Registrar Coutts on 31 May 2012 and the compliance hearing before Registrar Coutts on 13 August 2012;
(v)the wife’s costs of and incidental to preparation of, and forwarding by, her solicitors of the proposed consent orders on 31 May 2012;
(vi)the wife’s costs of and incidental to all communications concerning the sale of the boat and establishing the truth as to that sale;
(b)the wife’s costs of and incidental to the substantive proceedings on and from 16 March 2012 on a party and party basis; and
(c)the wife’s costs of and incidental to this application for costs on a party and party basis.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) (“the Rules”) certification is given to the wife for engagement of senior counsel.
Pursuant to Rule 19.18(1)(a) of the Rules the costs ordered by these Orders be fixed in the amount of…
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- Case
- [2014] FamCA 944
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the husband's conduct warranted an order for indemnity costs concerning the issue of the Type O boat. Further, the court had to consider the circumstances under which an order for costs in a fixed sum, rather than by assessment, ought to be made, in light of Rule 19.18(1)(a) of the *Family Law Rules 2004* (Cth) and the overarching purpose of the Rules. The court also had to consider whether a prior offer of settlement was sufficient to justify an order for indemnity costs.
Kent J ordered that the husband pay the wife's costs on an indemnity basis concerning the issue of the boat, encompassing costs related to disclosure, communications, affidavits, specific hearings, and the sale of the boat. The wife's costs for the substantive proceedings from a specified date and for the costs application itself were to be paid on a party and party basis. The court certified the wife's engagement of senior counsel. Crucially, pursuant to Rule 19.18(1)(a), the total costs ordered were fixed at $80,000. The husband was ordered to pay $50,000 within sixty days, with the remaining $30,000 to be paid in equal monthly instalments over twenty-four months, commencing on 2 February 2015, with interest on the outstanding balance.
Orders
Orders of the court
It is ordered that:
1.
The husband shall pay to the wife:
(a) all of the wife’s costs of and incidental to the issue of the Type O boat “AB” (“the boat”) on an indemnity basis including, but not limited to:
(i) all costs incurred in seeking disclosure from the husband in relation to the boat, including in respect of its sale;
(ii) all costs incurred in her solicitors corresponding or communicating with the husband or his solicitors or with the brokerage firm of Mr P concerning the boat;
(iii) all costs incurred in association with obtaining and filing the affidavit of Mr C;
(iv) the wife’s costs of and incidental to the directions hearing before Registrar Coutts on 31 May 2012 and the compliance hearing before Registrar Coutts on 13 August 2012;
(v) the wife’s costs of and incidental to preparation of, and forwarding by, her solicitors of the proposed consent orders on 31 May 2012;
(vi) the wife’s costs of and incidental to all communications concerning the sale of the boat and establishing the truth as to that sale;
(b) the wife’s costs of and incidental to the substantive proceedings on and from 16 March 2012 on a party and party basis; and
(c) the wife’s costs of and incidental to this application for costs on a party and party basis.
2.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) (“the Rules”) certification is given to the wife for engagement of senior counsel.
3.
Pursuant to Rule 19.18(1)(a) of the Rules the costs ordered by these Orders be fixed in the amount of $80,000.
4.
The husband is to pay to the wife on account of the costs ordered to be paid by these Orders the amount of $50,000 within sixty (60) days of these Orders, that is on or before 2 January 2015.
5.
The husband is to pay the balance sum of $30,000 by equal monthly instalments over twenty-four (24) months commencing on 2 February 2015 together with interest at 5 per cent per annum calculated monthly on the outstanding balance from 2 January 2015 until final payment.
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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