Suffolk and Suffolk - [2010] FamCA 170

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK

[2010] FamCA 170

FAMILY LAW – COSTS – Financial agreement declared not binding – Husband found to have given deliberately false evidence – Wife awarded indemnity costs according to a costs agreement but reduced 5% for an unsuccessful issue – Wife also awarded uplift fee for no win no fee retainer on indemnity or alternatively partial indemnity basis having regard to Rule 19.18(3) Family Law Rules 2004

Family Law Act 1975 (Cth) ss 90G(1)(e) 117, 117AB

Family Law Rules 2004 Rule 19.18(3)

Cassidy v Murray (1995) FLC 92-633
Colgate-Palmolive Company & Anor v Cussons Pty Ltd [1993] FCA 536
Fennessy & Gregorian [2009] Fam CAFC 44; (2009) FLC 93-399
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Greedy & Greedy (1982) FLC 91-250
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) No 2 (1993) 46 IR 301
Jensen & Jensen (1982) FLC 91-263

Latoudis v Casey (1990) CLR 534 at 567

Penfold and Penfold (1981) 44 CLR 311

APPLICANT:

Ms Suffolk

RESPONDENT:

Mr Suffolk

FILE NUMBER:

BRC

4740

2008

DATE DELIVERED:

5 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

4 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Chan Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

IT IS ORDERED

The husband pay to the wife her costs of and incidental to the issue of the validity under s90G(1)(e) of the Family Law Act 1975 (Cth) of the financial agreement made between the parties on 10 August 2004 including her costs of and incidental to the mediation held on 9 April 2009 in so far as related to that issue to be calculated as:
(a)95% of her costs pursuant to the Solicitor/Client Costs Agreement between the wife and her solicitors dated 31 July 2007, being all of her costs save only those costs unreasonable in amount and those costs unreasonably incurred, to be assessed if not agreed; and
(b)on that amount, such uplift fee as may be assessed as ordinarily chargeable by lawyers engaged on the basis of a no win no fee retainer for comparable litigious cases having regard to the importance, complexity or difficulty of the issue, provided that if there be no recognised standard uplift fee or range of uplift fees in order to be assessable on that basis, 25% uplift fee as set out in the letter of agreement between the wife’s solicitors and the wife dated 19 May 2008.
The husband pay the wife’s costs of and incidental to her costs application, excluding her costs of 20 October 2009, on the party and party basis, to be assessed if not agreed.
The wife pay the husband’s costs of 20 October 2009 limited to that day on the party and party basis to be assessed if not agreed with such costs to be set off against 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.

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Details

Case: [2010] FamCA 170
Decision Date: 5 February 2010

CaseChat Overview and Summary

In *Suffolk and Suffolk*, O’Reilly J considered an application for costs following a determination regarding the validity of a financial agreement made between the parties on 10 August 2004, pursuant to section 90G(1)(e) of the *Family Law Act 1975* (Cth). The dispute centred on the costs associated with the determination of this validity issue, including costs related to a mediation held on 9 April 2009.

The primary legal issue before the court was the assessment and allocation of costs. Specifically, the court was required to determine the basis upon which the wife's costs should be paid by the husband, including the application of a solicitor-client basis with a potential uplift fee, and the allocation of costs for specific hearing days and a costs application. The court also had to consider whether it was reasonable for the parties to have engaged both Senior and Junior Counsel for the validity issue and mediation.

O’Reilly J ordered that the husband pay 95% of the wife's costs of and incidental to the issue of the validity of the financial agreement and the related mediation. These costs were to be calculated on a solicitor-client basis, excluding unreasonable costs, and subject to an assessed uplift fee as ordinarily chargeable for comparable litigious cases on a no win no fee retainer, or a 25% uplift if no standard fee was recognised. The husband was also ordered to pay the wife's costs of her costs application, excluding costs from 20 October 2009, on a party-party basis. The wife was ordered to pay the husband's costs for 20 October 2009, with these costs to be set off against the amounts the husband owed the wife. The court certified that it was reasonable for both parties to have engaged Senior and Junior Counsel for the validity issue and mediation. Finally, the property proceedings under section 79 were stayed pending the determination of the husband's appeal.

Orders

Orders of the court

IT IS ORDERED

The husband pay to the wife her costs of and incidental to the issue of the validity under s90G(1)(e) of the Family Law Act 1975 (Cth) of the financial agreement made between the parties on 10 August 2004 including her costs of and incidental to the mediation held on 9 April 2009 in so far as related to that issue to be calculated as:

(a) 95% of her costs pursuant to the Solicitor/Client Costs Agreement between the wife and her solicitors dated 31 July 2007, being all of her costs save only those costs unreasonable in amount and those costs unreasonably incurred, to be assessed if not agreed; and

(b) on that amount, such uplift fee as may be assessed as ordinarily chargeable by lawyers engaged on the basis of a no win no fee retainer for comparable litigious cases having regard to the importance, complexity or difficulty of the issue, provided that if there be no recognised standard uplift fee or range of uplift fees in order to be assessable on that basis, 25% uplift fee as set out in the letter of agreement between the wife’s solicitors and the wife dated 19 May 2008.

The husband pay the wife’s costs of and incidental to her costs application, excluding her costs of 20 October 2009, on the party and party basis, to be assessed if not agreed.

The wife pay the husband’s costs of 20 October 2009 limited to that day on the party and party basis to be assessed if not agreed with such costs to be set off against the costs the husband is to pay to the wife pursuant to orders 1 and 2.

AND IT IS CERTIFIED PURSUANT TO RULE 19.50 OF THE FAMILY LAW RULES 2004

It was reasonable for the parties to engage both Senior Counsel and Junior Counsel in relation to the issue of the validity under s90G(1)(e) of the financial agreement made between the parties on 10 August 2004, including in relation to the mediation held on 9 April 2009.

AND IT IS FURTHER ORDERED

The parties have liberty to apply if any clarification in relation to these costs orders should be required.

AND IT IS ORDERED BY CONSENT

The s79 property proceedings between the husband and the wife be stayed pending the determination or any deemed abandonment or other earlier termination of the husband’s appeal number NA73/2009 or further order.

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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