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
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…
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- Tindall & Vendric (No 2) [2023] FedCFamC2F 105
- Case
- [2023] FedCFamC2F 105
- Decision Date
CaseChat Overview and Summary
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.
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