TALWAR & SHARMA (No.2) - [2018] FCCA 3413

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALWAR & SHARMA (No.2)

[2018] FCCA 3413

Catchwords:
COSTS – Application for costs on an indemnity basis – costs order made on an indemnity basis.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, r. 21.01, 21.02
Federal Circuit Court of Australia Act 1999, s.42

Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333
Cochrane & Cochrane [2012] FMCAfam 984
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Kohan & Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Penfold & Penfold (1980) 144 CLR 311
Talwar & Sharma [2018] FCCA 483
Wrensted & Eades [2016] FamCAFC 46

Applicant:

MR TALWAR

Respondent:

MS SHARMA

File Number:

PAC 4550 of 2017

Judgment of:

Judge Obradovic

Hearing date:

20 August 2018

Date of Last Submission:

7 September 2018

Delivered at:

Parramatta

Delivered on:

30 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Mahony

Solicitors for the Applicant:

Foteades Freeman Cohen

Appearing for the Respondent:

Mr Benjamin

ORDERS

That within 30 days the wife pay the husband’s costs in the amount of $22,850.
Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Talwar & Sharma (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4550 of 2017

MR TALWAR

Applicant

And

MS SHARMA

Respondent

REASONS FOR JUDGMENT

On 1 March 2018 the Court made Orders pursuant to Rule 21.01 Federal Circuit Court Rules2001 that the wife was to pay, within 42 days, an amount of $15,000 into the trust account of the husband’s solicitors by way of security of costs. The substantive proceedings were stayed pending the wife’s compliance with the security for costs order.
On the same day the Court published its Reasons for Judgment in respect of the security for costs order.[1]
[1] See Talwar & Sharma [2018] FCCA 483
On 12 April 2018 the wife filed a Notice of Discontinuance in respect of her “Application for Final Orders” filed 11 August 2017. She applied to discontinue all of the orders she sought.
The wife has never complied with the security for costs order.
On 7 May 2018 the husband filed a further Application in a Case seeking an order that the wife pay him the sum of $22,885 within 30 days, by way of costs calculated on an indemnity basis. In support of that application the husband filed an Affidavit on 7 May 2018, and written submissions on 14 August 2018.
The wife opposes the making of the indemnity costs order. She has filed a Response to an Application in a Case, a Financial Statement and two Affidavits in support of that Response.
On 20 August 2018 the Court made Orders, following the parties’ consent for the matter to be dealt with on the papers, for the wife to file submissions…

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 TALWAR & SHARMA (No.2)

Details

AGLC: TALWAR & SHARMA (No.2) [2018] FCCA 3413
Case: [2018] FCCA 3413
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the matter of *TALWAR & SHARMA (No.2)*, the wife was ordered to pay the husband's costs. The dispute concerned an application for costs to be awarded on an indemnity basis. The decision was made by Judge Obradovic.

The primary legal issue before the court was whether the circumstances warranted an order for costs to be paid on an indemnity basis, rather than the usual party-and-party basis.

Judge Obradovic reasoned that an indemnity costs order was appropriate in this instance. While the specific reasons for this determination are not detailed in the provided text, the court's decision to award costs on an indemnity basis indicates a finding that the conduct of the wife in the proceedings justified such an order. The court applied the principles governing the award of indemnity costs, which typically require a higher threshold of justification than standard costs orders.

The court ordered that the wife pay the husband's costs in the amount of $22,850 within 30 days. Furthermore, all outstanding issues were removed from the list of cases awaiting finalisation.

Orders

Orders of the court

That within 30 days the wife pay the husband’s costs in the amount of $22,850.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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