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Tindall & Vendric (No 2)

Tindall & Vendric (No 2)

Case [2023] FedCFamC2F 105 8 February 2023

Costs

Indemnity Costs

Jurisdiction

Unconscionable Conduct

Breach of Contract

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tindall & Vendric (No 2) [2023] FedCFamC2F 105

File number(s): PAC 3787 of 2019

Judgment of: JUDGE OBRADOVIC

Date of judgment: 8 February 2023

Catchwords: FAMILY LAW - COSTS – where Applicant wholly unsuccessful – indemnity costs in respect of third party – costs orders made

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Cases cited:
Cochrane & Cochrane [2012] FMCAfam 984

Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Collins & Collins [1985] FamCA 15

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

Greedy and Greedy [1982] FamCA 41

I & I (No.2) [1995] FamCA 80

Jensen &Jensen [1982] FamCA 57

Kohan & Kohan [1992] FamCA 116

Latoudis v Casey [1990] HCA 59

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 at [24]

Munday v Bowman (1997) FLC 92-784 at 84

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

Penfold & Penfold [1980] HCA 4

Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)

Renald & Renald (Costs) [2018] FamCAFC 4

Stasiuk & Guild [2021] FamCAFC 62

Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225

Tindall & Vendric [2022] FedCFamC2F 1504

Division: Division 2 Family Law

Number of paragraphs: 41

Date of last submission/s: 18 January 2023

Date of hearing: On the papers

Place: Parramatta

Solicitors for the Applicant: Prime Lawyers

Solicitors for the Respondents: Pearson Emerson Family Lawyers
ORDERS

PAC 3787 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TINDALL

Applicant

AND:
MS VENDRIC

First Respondent

MR VENDRIC

Second Respondent

MS B VENDRIC

Third Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

8 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Within 42 days the applicant pay to the first respondent costs in the amount of $31,565.
2.Within 42 days the applicant pay to the second and third respondents jointly, indemnity costs in the amount of $67,762.

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 this Court under the pseudonym Tindall & Vendric has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC

On…

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 Tindall & Vendric (No 2)

Details

AGLC: Tindall & Vendric (No 2) [2023] FedCFamC2F 105
Case: [2023] FedCFamC2F 105
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia (Division 2) concerns the costs orders sought by the respondents in the primary proceedings related to property adjustment orders between Mr Tindall and Ms Vendric. The respondents are Ms Vendric, Mr Tindall’s former wife, and her parents, Mr Vendric and Ms B Vendric. Mr Tindall objected to any costs orders being made in favour of the respondents, while each of the respondents moved the Court for orders that Mr Tindall pay their respective costs on an indemnity basis. The Court was required to determine the legal principles that apply to costs orders in family law proceedings and whether the circumstances justified making a costs order in this case.

The Court held that the starting position for costs orders in family law proceedings is that each party shall bear their own costs, subject to subsection 117(2) of the Family Law Act 1975 (Cth). The discretion to award costs is a broad one, and no one factor under section 117(2A) prevails over any other factor. The Court must have regard to the prescriptive but non-exhaustive list of considerations in subsection (2A) when determining what order, if any, should be made under section 117(2). The Court has the power to order costs on an indemnity basis, but an order for indemnity costs is exceptional.

In this case, the Court found that Mr Tindall’s conduct in prosecuting his claim for property adjustment orders had been less than exemplary, and he had failed to comply with Court orders numerous times. The Court held that there were exceptional circumstances justifying an order for indemnity costs in favour of the second and third respondents. The Court found that Mr Tindall should have known, in respect of his primary claim for a declaration regarding the Suburb F Property, that he had no chance of success where the action had been commenced and continued in circumstances where he was properly advised. The Court ordered that Mr Tindall pay the costs of the first respondent in the amount of $31,565 and the costs of the second and third respondents jointly, on an indemnity basis, in the amount of $67,762.

The Court ordered that within 42 days, Mr Tindall pay to the first respondent costs in the amount of $31,565 and to the second and third respondents jointly, indemnity costs in the amount of $67,762. The form of the order is subject to the entry in the Court’s records.

Orders