THOMPSON & FINCH - [2021] FamCAFC 3

FAMILY COURT OF AUSTRALIA

THOMPSON & FINCH

[2021] FamCAFC 3

FAMILY LAW – APPLICATION IN AN APPEAL – INDEMNITY COSTS – Where costs are sought calculated on an indemnity basis – Where the respondent was wholly unsuccessful and her appeal was dismissed – Where the circumstances justify an order for costs – Where there are exceptional circumstances which warrant an order for indemnity costs – Costs fixed in the sum of $13,500 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18(1)(a)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321
Thompson & Finch and Ors [2020] FamCAFC 230

FIRST APPLICANT:

Mr Finch

SECOND APPLICANT:

Company C

RESPONDENT:

Ms Thompson

FILE NUMBER:

MLC

9211

2017

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

28 January 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

In Chambers

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FCCA 2684

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND

APPLICANTS:

Ms Galea

SOLICITORS FOR THE FIRST AND

SECOND APPLICANTS:

Lampe Family Lawyers

THE RESPONDENT:

In Person

Order

The respondent pay the costs of the applicants of and incidental to the appeal fixed in the sum of $13,500.

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 Thompson & Finch 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 the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 49 of 2019
File Number: MLC 9211 of 2017

Mr Finch

First Applicant

And

Company C

Second Applicant

And

Ms Thompson

Respondent

REASONS FOR JUDGMENT

Introduction

On 18 September 2020, this Court dismissed the appeal filed by Ms Thompson (“the respondent”) from certain orders made by a judge of the Federal Circuit Court of Australia on 23 August 2019 (see Thompson & Finch and Ors [2020] FamCAFC 230).
On 14 October 2020, Mr Finch and Company C (“the applicants”), filed an Application in an Appeal seeking an order for costs against the respondent calculated on an indemnity basis. That application was supported by an affidavit filed on the same date.
The Application in an Appeal and the affidavit were served on the respondent by email on 22 October 2020.
On 23 November 2020, at this…

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 THOMPSON & FINCH

Details

AGLC: THOMPSON & FINCH [2021] FamCAFC 3
Case: [2021] FamCAFC 3
Decision Date: 28 January 2021

CaseChat Overview and Summary

The parties involved in this case are identified as applicants and a respondent, whose names are not disclosed due to a pseudonym assigned by the court under the authority of the Family Law Act 1975. The nature of the dispute is an application in an appeal related to the calculation of costs on an indemnity basis. The case was heard in the Family Court of Australia. The respondent, who was wholly unsuccessful in her appeal, sought to challenge the costs awarded to the applicants. The applicants, on the other hand, were seeking an order for costs, arguing that the circumstances justified an order for costs, and that there were exceptional circumstances warranting an order for indemnity costs.

The legal issues before the court revolved around the appropriateness of ordering indemnity costs under rule 19.18(1)(a) of the Family Law Rules 2004. The court had to consider whether the circumstances of the case warranted such an order and whether the respondent's appeal was wholly without merit, which would justify an order for indemnity costs. The court also had to determine the appropriate amount of costs to be awarded, considering the nature and complexity of the appeal, the conduct of the parties, and the outcome of the appeal.

The court found that the respondent's appeal was wholly unsuccessful, and her arguments were not substantiated by the evidence or the law. Given the circumstances, the court determined that an order for indemnity costs was appropriate. The court further found that exceptional circumstances existed, justifying an order for indemnity costs. The court assessed the costs based on the nature and complexity of the appeal, the conduct of the parties, and the outcome of the appeal, ultimately fixing the costs at $13,500. The court's decision was based on a careful consideration of the relevant legal principles and the facts of the case.

The orders made by the court are as follows: the respondent is to pay the applicants' costs of and incidental to the appeal, fixed in the sum of $13,500. The form of the order is subject to the entry of the order in the Court’s records. The court's decision was approved by the Chief Justice for publication under a pseudonym to protect the privacy of the parties involved.

Orders

Orders of the court

1. The respondent pay the costs of the applicants of and incidental to the appeal fixed in the sum of $13,500.

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 Thompson & Finch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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