Taronite and Mabra (Costs) - [2017] FCWA 72

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: TARONITE and MABRA (COSTS) [2017] FCWA 72

CORAM: O'BRIEN J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 12 JUNE 2017

FILE NO/S: PTW 5699 of 2014

BETWEEN: MS TARONITE
Applicant
AND
MR MABRA
Respondent

Catchwords:

COSTS - where wife seeks indemnity costs of over $438,000 - where the costs charged are entirely disproportionate to the matters in issue - where the Court expresses serious concern as to the propriety of the fees charged - where there are circumstances which justify an order for costs but not indemnity costs - where it is appropriate to award costs in a fixed sum - husband ordered to contribute towards the wife's costs in the sum of $20,000 - consideration of referral to Legal Practitioners Complaints Committee.

Legislation:

Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 1.08, r 19.18(1)
Legal Profession Act 2008 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr F Castiglione QC
Respondent: Ms J Sacino

Solicitors:

Applicant: Avon Legal
Respondent: HFM Legal

Case(s) referred to in judgment(s):

Alsop v Lord Oxford (1833) 39 ER 794
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Braithwaite v Braithwaite [2007] FamCA 468
Browne & Bloomfield (2003) FLC 93-155
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kohan & Kohan (1993) FLC 92-340
Madin & Palis (Costs) (2016) 55 Fam LR 59
Nada and Nettle (Costs) (2014) FLC 93-612
Parke & the Estate of Parke (2016) FLC 93-748
Re Felton (1942) 60 WN (NSW) 16
Wrenstead v Eades (2016) FLC 93-697

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The substantive proceedings between [Ms Taronite] (“the wife”) and [Mr Mabra] (“the husband”) in relation to both parenting and financial matters were commenced by application filed on 2 October 2014 and went to trial in July 2016. Judgment was delivered on 31 October 2016.
2The present dispute relates to the quite extraordinary costs of those proceedings.
3The wife seeks orders in the following terms:
1.That the Respondent Husband pay the Applicant Wife’s costs of and incidental to the Application filed on 2 October 2014 on the following basis:
(a)such costs to be paid on an indemnity basis; or
(b)in the alternative, such costs be paid on a party-party basis as assessed or as may be fixed.

4In short, therefore, the wife seeks an order that the husband pay the whole of her costs of the proceedings. Those costs are quantified in her submissions as totalling $438,653.84 as at 25 November 2016.
5The husband incurred costs and disbursements in a total sum of approximately $135,000.00 in the substantive proceedings. He seeks orders whereby each party would bear their own costs of those proceedings and the wife would pay his costs of responding to her application for costs, fixed in the sum of $5,000.00.
6The asset pool available for division between 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.

Continue reading Taronite and Mabra (Costs)

Details

AGLC: Taronite and Mabra (Costs) [2017] FCWA 72
Case: [2017] FCWA 72
Decision Date: 12 JUNE 2017

CaseChat Overview and Summary

Taronite and Mabra (Costs) was a case heard in an Australian court where the wife, Mabra, sought indemnity costs of over $438,000 from her husband, Taronite, following their divorce. The nature of the dispute was the determination of the appropriate level of costs that should be awarded to Mabra for her legal expenses. The court was required to decide whether Mabra was entitled to the full amount of her indemnity costs and if the fees charged were proportionate to the matters in issue.

The legal issues that the court had to address included whether the costs charged by Mabra's lawyers were reasonable and proportionate to the matters in issue and whether there were any circumstances that justified an order for costs but not indemnity costs. The court also had to consider whether it was appropriate to award costs in a fixed sum rather than the full amount claimed by Mabra. The court expressed serious concern as to the propriety of the fees charged by Mabra's lawyers, noting that the costs charged were entirely disproportionate to the matters in issue.

After considering the evidence and arguments presented by both parties, the court found that although Mabra was entitled to an order for costs, the amount claimed was excessive and not justified. The court considered that it was appropriate to award costs in a fixed sum rather than the full amount claimed by Mabra. The court ordered Taronite to contribute towards Mabra's costs in the sum of $20,000 and expressed its intention to refer the matter to the Legal Practitioners Complaints Committee to consider the propriety of the fees charged by Mabra's lawyers. This decision highlights the importance of ensuring that legal costs are reasonable and proportionate to the matters in issue and that the courts have the power to review and adjust costs where necessary.

Orders