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TALBOTT & TAPP

TALBOTT & TAPP

Case [2020] FamCA 391 25 May 2020

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FAMILY COURT OF AUSTRALIA

TALBOTT & TAPP

[2020] FamCA 391

FAMILY LAW – COSTS – Where the de facto husband seeks an order that the de facto wife pay his costs in respect of interim proceedings on an indemnity basis or in the alternative on a party/party basis– Where the de facto wife opposes the Application for costs – Where the de facto wife was wholly unsuccessful in pursuing her Application in the Family Court of Australia – Consideration of the conduct of the parties in the proceedings – Where the de facto wife has been made redundant – Consideration of the financial circumstances of the parties – Orders made for costs on a party/party basis in favour of the de facto husband payable upon conclusion of property proceedings.

Family Law Act 1975 (Cth) s 117.
Family Law Rules 2004 (Cth) ch 13, r 19.18, sch 3.

Byrnes v Brisconnections Management Company Ltd (No. 2) [2009] FCA 1432
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Cales v Talbott [2020] NSWSC 380
Fennessy & Gregorian (2009) FLC 93-399
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kohan and Kohan (1993) FLC 92-340
Lambert& Jackson [2011] FamCA 275
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Melville & Dent (No.2) [2009] FamCA 81
Penfold v Penfold (1980) 144 CLR 311
Pierson & Romilly [2020] FamCAFC 91
Ryan v Primesafe [2015] FCA 8
Stoian & Fiening (Costs) [2014] FamCA 944
Tapp & Talbott [2020] FamCA 57
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Talbott

RESPONDENT:

Ms Tapp

FILE NUMBER:

SYC

2557

2017

DATE DELIVERED:

25 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

1 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Anne Einfeld Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Walter & Elliott Family Lawyers

Orders

The de facto wife is to pay costs of the de facto husband assessed at the fixed amount of $34,080.28 with that amount to be payable by the de facto wife immediately upon finalisation of the proceedings between the parties in the Family Court of Australia, whether by way of settlement or judgment.

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 Talbott & Tapp 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…

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 TALBOTT & TAPP

Details

AGLC: TALBOTT & TAPP [2020] FamCA 391
Case: [2020] FamCA 391
Decision Date: 25 May 2020

CaseChat Overview and Summary

In *Talbott & Tapp*, the District Court of New South Wales was required to determine the quantum of costs to be paid by the de facto wife to the de facto husband. The dispute arose in the context of proceedings between the parties in the Family Court of Australia, and the District Court's role was to assess the costs payable by one party to the other.

The central legal issue before the District Court was the assessment of a fixed amount for costs, rather than an order for costs to be assessed in the usual way. This involved determining the appropriate sum to reflect the costs incurred by the de facto husband in the proceedings.

McClelland DCJ ordered that the de facto wife pay the de facto husband's costs in the fixed amount of $34,080.28. This payment was to be made immediately upon the finalisation of the proceedings between the parties in the Family Court of Australia, whether that finalisation occurred by way of settlement or judgment. The form of this order was noted as being subject to its formal entry in the Court's records.

Orders

Orders of the court

The de facto wife is to pay costs of the de facto husband assessed at the fixed amount of $34,080.28 with that amount to be payable by the de facto wife immediately upon finalisation of the proceedings between the parties in the Family Court of Australia, whether by way of settlement or judgment.

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

Background

Background to the litigation

Full text does not contain this section.

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.

Citations

AGLC Citation

TALBOTT & TAPP [2020] FamCA 391

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd
[1988] FCA 364 Para 4

…including where: (i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty. Ltd. v International Produce Merchants Pty. Ltd . (1988) 81 A.L.R. 397. (ii) The making of an irrelevant allegation of fraud: Thors v. Weekes (1989) 92 A.L.R. 131. (iii) Conduct which causes loss of time to the…
Pierson & Romilly
[2020] FamCAFC 91 Para 4

…More recently, in Pierson & Romilly [2020] FamCAFC 91, the Full Court said: 85. It is the policy of this Court to attempt to fix costs at the conclusion of the hearing in order to save the parties the cost, time and resources of a taxation, as well as to save the time of a Registrar in taxing the costs.…
Crawford v Timms
[2020] NSWSC 380

…Byrnes v Brisconnections Management Company Ltd (No. 2) [2009] FCA 1432 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cales v Talbott [2020] NSWSC 380 Fennessy & Gregorian (2009) FLC 93-399 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 Idoport P…
Tapp and Talbott and Anor
[2020] FamCA 57 Para 1

…he February Judgment”).[1] I will, however, subsequently set out the relevant background to this decision in respect to costs. [1] Tapp & Talbott [2020] FamCA 57.…
Ryan v Primesafe
[2015] FCA 8 Para 6

…analysis by the Full Court of the Family Court in Limousin (supra); Watts J in Lambert & Jackson [2011] FamCA 275 and Mortimer J in Ryan v Primesafe [2015] FCA 8 at [110].…
Stoian & Fiening (Costs)
[2014] FamCA 944 Para 1

…l circumstances, however, there must be circumstances which, at the absolute discretion of the Court, justify a costs order: Stoian & Fiening (Costs) [2014] FamCA 944 at [19] (“ Stoian ”) having regard to the matters set out in s 117(2A) of the Act.…
Lambert v Jackson
[2011] FamCA 275 Para 6

…n applied in this Court: see for instance the useful analysis by the Full Court of the Family Court in Limousin (supra); Watts J in Lambert & Jackson [2011] FamCA 275 and Mortimer J in Ryan v Primesafe [2015] FCA 8 at [110].…
Byrnes v Brisconnections Management Co Ltd (No 2)
[2009] FCA 1432 Para 3

…can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Company Ltd (No. 2) [2009] FCA 1432 at [51].…
Melville & Dent (No.2)
[2009] FamCA 81 Para 1

…In Melville & Dent (No.2) [2009] FamCA 81 at [33], Cronin J discussed the basis upon which the question of indemnity costs arises and referred to the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“ Colgate-Palmolive ”) as providing a “pertinent observation” of the “court-endor…
Limousin v Limousin (Costs)
[2007] FamCA 1178 Para 3

…Nevertheless, as confirmed by the Full Court in Limousin v Limousin (Costs) (2007) 38 Fam LR 478 (“ Limousin ”) and subsequently in Fennessy & Gregorian (2009) FLC 93-399, referring to the decision of Sheppard J in Colgate-Palmolive (supra), there are circumstances which may arise that “warrant the court in departing from the usual…
Idoport Pty Ltd v National Australia Bank Ltd
[2007] NSWSC 23 Para 2

…ed the principles for applying a rule equivalent to r 19.18 of the Rules as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23. Those principles are: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of tax…
Ugly Tribe Co Pty Ltd v Sikola
[2001] VSC 189 Para 4

…, examples of “special circumstances” which may justify that course of action were usefully set out by Harper J in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] as including where: (i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 1

…[2009] FamCA 81 at [33], Cronin J discussed the basis upon which the question of indemnity costs arises and referred to the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“ Colgate-Palmolive ”) as providing a “pertinent observation” of the “court-endorsed costs structure of litigation”, wherein his Honour s…
Penfold v Penfold
[1980] HCA 4 Para 3

…uld justify such an order, it is not the case that a costs order can only be made in what has been described as “a clear case”: Penfold v Penfold (1980) 144 CLR 311 at 315.…
Thors v Weekes
[1989] FCA 795 Para 4

…While the categories in which indemnity costs may be awarded are not closed, examples of “special circumstances” which may justify that course of action were usefully set out by Harper J in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] as including where: (i) The making of an allegation, know…
[1990] VSC 395
[1990] VSC 395 Para 4

…ry of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v. Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
117 2 mentions (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 2)