Tarok & Kardan - [2023] FedCFamC1F 476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarok & Kardan [2023] FedCFamC1F 476

File number(s): SYC 7133 of 2021

Judgment of: SCHONELL J

Date of judgment: 14 June 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Compliance with orders – Where the wife relisted the matter because of the husband’s failure to comply with the orders – Where the husband’s solicitor informed the Court that there was no non-compliance – Where the representation made to Court was incorrect – Orders made extending the time for the husband’s compliance – Where the matter was listed for interim hearing as a consequence of representations made by the husband’s solicitor – Costs order made against the husband on an indemnity basis in a fixed sum.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance

Number of paragraphs: 48

Date of hearing: 9 June 2023

Place: Sydney

Solicitor for the Applicant: Dorter Family Lawyers and Mediators

Solicitor for the Respondent: Gorval Lynch

The Independent Children's Lawyer: Did not participate
ORDERS

SYC 7133 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TAROK

Applicant

AND:
MR KARDAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

14 JUNE 2023

THE COURT ORDERS THAT:
1.By 4.00 pm on Thursday 22 June 2023, the respondent husband (“the husband”) provide to the single expert and the applicant wife (“the wife”) all particulars and documents requested by the single expert in her letters dated 21 April 2023 and 28 April 2023.
2.The husband pay the wife’s costs fixed in the sum of $6,821.34 within 28 days.
3.The Application in a Proceeding filed 17 May 2023 and the Response to Application in a Proceeding filed 26 May 2023 are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by…

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 Tarok & Kardan

Details

AGLC: Tarok & Kardan [2023] FedCFamC1F 476
Case: [2023] FedCFamC1F 476
Decision Date

CaseChat Overview and Summary

In the matter of Tarok & Kardan, the court addressed a dispute between the husband and the wife concerning the financial implications of the husband's rejection of a settlement offer made by the wife. The case was heard in the Family Court of Australia, where the wife sought an indemnity costs order based on the husband's imprudent rejection of her offer to resolve the matter.

The primary legal issue before the court was whether the husband's conduct in rejecting the wife's settlement offer justified the imposition of costs on an indemnity basis. The court had to determine if the husband's actions were unreasonable and whether they warranted an order for him to pay the wife's costs. The wife argued that the husband's rejection of her offer was imprudent and led to additional legal proceedings, thereby justifying an indemnity costs order.

In its reasoning, the court noted that the husband's rejection of the wife's settlement offer, coupled with his conduct leading to the relisting of the matter, were sufficient grounds for an indemnity costs order. The court accepted the wife's estimate of her costs, amounting to $6,821.34, as no submissions were made to challenge the reasonableness of this amount. The husband's solicitor conceded that more time was needed to comply with the order, leading the court to extend the compliance period to 28 days.

Consequently, the court ordered the husband to pay the wife's costs on an indemnity basis, fixing the amount at $6,821.34. The husband was given 28 days to comply with the order. The court made the necessary orders to enforce this decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The wife made an offer to resolve the matter. The husband elected not to accept it. An imprudent rejection of an offer is another basis in which to consider an indemnity costs order.CONCLUSION I am satisfied that the conduct of the husband leading to the relisting and the offer of settlement made by the wife to resolve the matter are circumstances that are sufficient to warrant the making of a costs order on an indemnity basis. The wife has incurred costs. She gives an estimate as to her costs on an indemnity basis in the sum of $6,821.34. No submissions were put to me to contend that this amount was an incorrect calculation or an unreasonable amount. The husband’s solicitor conceded that the husband needed further time to comply with the order. I will extend the time for compliance. I propose to make an order that the husband pay the wife’s costs on an indemnity basis and fix that amount in the sum of $6,821.34. I will give the husband 28 days to comply with the order. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 7133 of 2021
Judgment of:	SCHONELL J
Date of judgment:	14 June 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Compliance with orders – Where the wife relisted the matter because of the husband’s failure to comply with the orders – Where the husband’s solicitor informed the Court that there was no non-compliance – Where the representation made to Court was incorrect – Orders made extending the time for the husband’s compliance – Where the matter was listed for interim hearing as a consequence of representations made by the husband’s solicitor – Costs order made against the husband on an indemnity basis in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248; [1993] FCA 801 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division:	Division 1 First Instance
Number of paragraphs:	48
Date of hearing:	9 June 2023
Place:	Sydney
Solicitor for the Applicant:	Dorter Family Lawyers and Mediators
Solicitor for the Respondent:	Gorval Lynch
The Independent Children's Lawyer:	Did not participate

SYC 7133 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS TAROK Applicant
AND:	MR KARDAN Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	14 JUNE 2023