Strahan and Strahan - [2019] FamCA 376

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2019] FamCA 376

FAMILY LAW – COSTS – Where the husband seeks an order that the wife pay the costs of both parties’ applications on an indemnity basis – Where alternatively the husband seeks orders that the wife pay the costs of both applications on a lawyer and client basis, or a party/party basis – Where the wife seeks an order that each party pay their own costs – S 117(2A) considerations – Where the husband made an offer to the wife which was not accepted – Where the husband contends the orders sought by the wife for adult child maintenance are an abuse of process – Where the court satisfied that there should be a departure from the ordinary rule for costs – Order that the wife pay the husband’s costs – Order for indemnity costs.

Family Law Act 1975 (Cth) ss 117, 118
Family Law Rules 2004 (Cth) r 19.08, 19.18

Strahan & Strahan [2019] FamCAFC 31
Yunghanns & Ors & Yunghanns (2000) FLC 93-029 adopting Sheppard J in Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) FCR 225
Kohan & Kohan (1993) FLC 92-340
Muldoon & Carlyle (2012) FLC 93-513
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2) [1993] FCA 42; Colgate-Palmolive (supra and Yunghanns (supra).
Z (A Solicitor) v Limousin (Costs) [2010] FLC 93-433

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FIRST INTERVENOR:

PP LAWYERS

SECOND INTERVENOR:

NF Pty Ltd

THIRD INTERVENOR:

NS Company

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

10 June 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Tree J

HEARING DATE:

Last submission filed 31 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Raeburn

SOLICITORS FOR THE APPLICANT:

Mcinnes Wilson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITORS FOR THE RESPONDENT:

Kennedy Partners

Orders

The wife pay the husband’s costs of and incidental to her Initiating Application filed 6 March 2018, and the husband’s Application in a Case filed 12 April 2018, such costs to be as agreed or assessed, calculated on an indemnity basis.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: ADF228/2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

REASONS FOR JUDGMENT

introduction

In Strahan & Strahan [2019] FamCAFC 31

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 Strahan and Strahan

Details

AGLC: Strahan and Strahan [2019] FamCA 376
Case: [2019] FamCA 376
Decision Date: 10 June 2019

CaseChat Overview and Summary

In *Strahan and Strahan*, heard by Tree J, the dispute concerned costs orders following an application by the wife. The specific applications that generated the costs in question were the wife's Initiating Application filed on 6 March 2018 and the husband's Application in a Case filed on 12 April 2018.

The central legal issue before the court was the basis upon which the wife should pay the husband's costs. Specifically, the court was required to determine whether those costs should be calculated on a standard or indemnity basis.

Tree J ordered that the wife pay the husband's costs of and incidental to her Initiating Application filed 6 March 2018, and the husband’s Application in a Case filed 12 April 2018. These costs were to be as agreed or assessed, and crucially, were to be calculated on an indemnity basis.

Orders

Orders of the court

The wife pay the husband’s costs of and incidental to her Initiating Application filed 6 March 2018, and the husband’s Application in a Case filed 12 April 2018, such costs to be as agreed or assessed, calculated on an indemnity basis.

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

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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