Tindall & Vendric (No 2)
[2023] FedCFamC2F 105
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 10 November 2022, the Court delivered its primary judgment in respect of property adjustment orders[1]. These are reasons for judgment in respect of the costs orders sought by the respondents in the primary proceedings.
[1] Tindall & Vendric [2022] FedCFamC2F 1504 (“Tindall & Vendric”)
The parties have all filed submissions and evidence in respect of the costs applications. Mr Tindall objects to any costs orders being made in favour of the respondents (to the substantive proceedings), while each of the respondents moves the Court for orders that Mr Tindall pay their respective costs on an indemnity basis. The respondents are Ms Vendric, Mr Tindall’s former wife, and her parents, Mr Vendric and Ms B Vendric.
Relevant Legal Principles Relating to Costs in Family Law Proceedings
The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s.117 of the Family Law Act 1975 (Cth) (“Act”) is that, subject to sub-section 117(2), each party to proceedings under the Act shall bear his or her own costs.
The discretion to award costs is a broad discretion.[2] No one factor under s.117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion.[3]
[2] For example, Collins & Collins [1985] FamCA 15
[3] Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 at [24] (“Medlon”)
The High Court held in Penfold & Penfold[4] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
[4] [1980] HCA 4 (“Penfold”)
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a “clear case”.[5]
[5] Penfold; Jensen &Jensen [1982] FamCA 57
Any one of the factors in s.117(2A) may be the sole foundation for an order for costs.[6] Nevertheless, the relevant matters in s.117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[7]
[6] PBF as Child Representative For AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158 at [41]; Renald & Renald (Costs) [2018] FamCAFC 4 at [11] (“Renald”)
[7] I & I (No.2) [1995] FamCA 80; Renald at [11]
In Latoudis v Casey[8] the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
[8] [1990] HCA 59 (“Latoudis”) at [13]; also, referred to in the context of family law proceedings by Judge Kemp in Cochrane & Cochrane [2012] FMCAfam 984 at [17]
In determining what order, if any, should be made under s.117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).
The Court has the power to order costs on an indemnity basis.[9] An order for indemnity costs in proceedings to which s.117 applies is exceptional.[10]
[9] Kohan & Kohan [1992] FamCA 116 (“Kohan”); Latoudis
[10] Kohan; Stasiuk & Guild [2021] FamCAFC 62
The principles in respect of indemnity costs orders are also well known,[11] relevantly: [12]
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts;[13]
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud;[14]
(c)Evidence of particular misconduct causing loss of time to the court and to other parties;[15]
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;[16] and/or
(e)An imprudent refusal of an offer to compromise.
[11] See generally Sheppard J in Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801
[12] Medlon at [28] referring to Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660
[13] See Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364 (“Fountain Selected Meats (Sales) Pty. Ltd”)
[14] Fountain Selected Meats (Sales) Pty. Ltd
[15] Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225
[16] Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)
It is unnecessary to spell out detailed reasons for decisions in costs matters.[17]
[17] Greedy and Greedy [1982] FamCA 41; Renald at [12]
DETERMINATION
In his Financial Statement filed 5 January 2023, Mr Tindall sets out his financial position. The Court accepts that he is a man of “modest financial means” and that he has had to bear his own costs of litigation. Mr Tindall continues to be employed.
Ms Vendric also continues to be employed, and her financial circumstances are not that different to those of Mr Tindall. She is also a woman of modest financial means. She too has incurred legal costs which she has to bear.
Mr Vendric and Ms B Vendric are both 64 years of age, and are planning for their retirement. Their financial position is overall better than that of Mr Tindall and Ms Vendric. They have incurred significant legal costs as a result of these proceedings.
In its primary judgment delivered on 10 November 2022 (“Reasons for Judgment”), the Court found as follows:
In a nutshell
3. The husband and wife (collectively “spouses”) began cohabitation in [early] 2010. They have one child together, [X], who was born […] 2017. The spouses separated on a final basis in March 2018. They were divorced in [late] 2019.
4. In [mid] 2011, Mr [Vendric] and [Ms B Vendric], the wife’s parents, (collectively “parents”) purchased the property located at [E Street], [Suburb F] (“[Suburb F] Property”). At all material times they have been and remain the legal owners of the property.
5. An arrangement was agreed to by the parties in or around [mid] 2011 that the husband and wife would live in the [Suburb F] Property and make regular payments pursuant to that arrangement. How these payments are to be classified and what their purpose was is in dispute.
6. It is not in dispute that at the time of purchase of the [Suburb F] Property, the parents paid the deposit as well as the associated costs of purchase, such as stamp duty and conveyance costs. It is also not in dispute that the loan used to pay for the balance of the purchase price was taken out by the parents, and that they are the mortgagors and remain liable for the loan repayments. It is not in dispute that the spouses did not make any financial contributions towards the [Suburb F] Property at the time of purchase.
7. The spouses moved into the [Suburb F] Property in [mid] 2011. They purchased various household items and there was work which was carried out on the property. Between [mid] 2011 and [early] 2012, the spouses lived in the property and after a separation of many months, resumed living in the property from [early] 2013 until final separation in March 2018.
8. During the time they lived in the [Suburb F] Property, the spouses made payments to the parents. The amount appears to have varied, but was on average $500 per week. However, the payments were not always made regularly, and there were periods when no payments were made.
9. The husband claims that he and the wife hold an equitable interest in the property by reason of representations being made by and on behalf of the parents, and the husband relying on those representations to his detriment; by way of constructive trust consequent upon the payments made by them during the time they resided in the property as well as some improvements made to the property. The husband claims that the parties agreed that the spouses would be entitled to all of the equity in the property upon its sale, as well as any moneys which were held by the parents on their behalf as “savings”.
10. The wife and the parents deny that a constructive trust arises, and say that the husband’s application for a declaration of trust should be dismissed.
11. Other than the [Suburb F] Property (which is in contention) the pool consists mostly of superannuation, but there are also motor vehicles, some savings and household contents.
Procedural Matters
12. Proceedings for both property and parenting orders were commenced by the husband in August 2019.
13. On 21 October 2019, the husband was directed to file and serve Points of Claim, in relation to the claims he made against the second and third respondents. He did not do so, although an attempt at filing had been made.
14. It appears however, that a document was at least served on the respondents on or about 2 December 2019, because each of them filed an affidavit annexing their Points of Defence in early 2020.
15. On 28 May 2020, the husband was granted leave to file and serve an amended Points of Claim within 28 days. He did not do so.
16. Instead, on 16 September 2020, the husband’s solicitor swore and filed an affidavit, annexing the amended Points of Claim. While it is most unfortunate that the Court’s order for the filing of pleadings have not been complied with, in the interests of justice, the Court has in this instance taken a pragmatic approach to such failures and not treated them as fatal to the applicant’s case.
17. The amended Points of Claim, were further sought to be amended, without leave having been obtained, through the written submissions which were made at the conclusion of the proceedings.
18. Litigation is to be conducted in an orderly fashion. It is not a process of unearthing the issues through the trial; the ambit of the dispute, the issues and the basis upon which the claim is made ought to be clear at the commencement of the hearing, particularly where parties have been directed to file pleadings and where evidence in chief is by way of affidavit.
…
22. The husband is bound by the way that his case was pleaded, and in this regard the pleadings which the applicant is held to are the [Points of Claim] annexed to the husband’s written submissions filed 10 November 2021.
23. The respondents are taken to have continued to rely on their Points of Defences (“POD”) as referred to at [14] above.
24. The matter was originally listed for hearing in respect of both property and parenting on 8 and 9 February 2021, as a reserve. Final Parenting Orders were made by consent on the day, and the matter was otherwise not reached. The property aspect of the proceedings was then listed for hearing on 11 and 12 October 2021, but was not completed within that time frame. A third day of hearing occurred on 19 October 2021, and the proceedings concluded with written submissions ultimately being filed.
…
DETERMINATION AND RELEVANT FINDINGS
40. As noted above, before the Court is able to determine, whether it is just and equitable to make a property adjustment order it is necessary to start by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
41. The primary issue for determination in these proceedings is whether the [Suburb F] Property forms part of the pool of assets subject to property adjustment orders.
42. The applicant seeks a declaration pursuant to s.78 of the Act that [Mr Vendric] and [Ms B Vendric] hold their right title and interest in the property “on constructive trust as to 100% of that right, title and interest or as to such percentage as this Honourable Court determines” for the husband and wife in equal shares, subject to the husband and wife “repaying” the parents the costs and expenses “to be assessed following disclosure” incurred by them in purchasing the property or that an equitable charge arises in favour of the husband and wife with respect to such costs and expenses.
…
Credit
…
135. It became clear during the hearing that the husband took poetic licence with his evidence.
136. At times the husband’s evidence was very vague, at times inconsistent and even outright misleading. An example of such evidence is that referred to at [113] dealing with the renovations to the property, noting the findings at [114].
137. The husband conceded that his evidence about the renovations was misleading, and that he did none of the work. He explained that he “thought [him]… being part of that house, and being there, and being subject to the whole thing… that [he]... was part of it”.
138. The husband’s oral evidence went from saying that the reason they moved into the [Suburb F] Property in August 2011 was because the wife had an interest in the property (not the spouses) to saying “I recall the electricity bills arriving to the property but they were in your parent’s (sic) name, which I found very odd because we’re the people renting the apartment” when he was asked about paying the electricity bills. His affidavit referred to “us” as having conversations with the parents, but he then conceded that he never discussed such matters with the parents.
139. The husband conceded that he did not understand the importance of being accurate and precise in his evidence in chief at the time he swore his trial affidavit, but that while “timeline things could be a little off…” he said that “… most of the rest of the affidavit is pretty accurate”.
140. Furthermore, noting the vague nature and imprecision of the husband’s evidence in respect of important matters, including matters which could easily have been checked against documents such as bank statements but appear not to have been before they were sworn to, unless the husband’s evidence is corroborated (in respect of contributions, where it is capable of being corroborated), it will be given little weight.
141. On balance, where the evidence of the husband and that of the respondents conflicts, the Court prefers the evidence of the respondents. This is not only so because of the difficulties with the husband’s evidence which have been identified, but it is also because of the implausibility of some of his assertions in general.
Conclusions as to the Pool and Determination… Constructive Trust
142. The submissions made in the husband’s case that a constructive trust is established by both direct evidence of four sets of representations and circumstantial evidence of the conduct of the parties, is rejected.
143. The husband’s evidence in respect of the constructive trust was a moving feast.
144. In essence, the husband’s case was that the moneys which the spouses paid to the parents was to be placed into the parents’ “offset account” – except that there was no “offset account”. The husband then says that such moneys were to be used by the parents to reduce the interest payable on the property but at the same time act as a savings account for the spouses. If his evidence is accepted in this regard, that is all of the moneys the spouses paid was to be kept in this manner by the parents, it would mean that the spouses made no direct financial contributions towards the [Suburb F] Property whatsoever. Even after the filing of evidence in chief, three days of hearing, and lengthy written submissions, the husband’s case remained confused.
The Four Representations
145. The representations have not been made out.
146. On balance the Court finds that the conversations between the parties about the purchase of the [Suburb F] Property, and the financial arrangements between the parties were in accordance with the evidence given by the respondents.
...
Agency
156. Despite pleading an agency by the wife on behalf of the parents, the husband has not established on the evidence that any agency, whether actual or apparent, existed…
…
Is the [Suburb F] Property held on trust for the spouses?
…
171. The husband’s conduct after the alleged promise was inconsistent with a genuine belief in the representations he alleges, which are in any event, not found to have been made as asserted by the husband. If anything, the husband was a disinterested occupant of the property, who benefited from the arrangement between the parties.
172. The evidence does not establish any detriment to the husband suffered as a result of the arrangement concerning the [Suburb F] Property. Indeed, the husband (and the wife) benefited from the arrangement by being afforded a lifestyle that was “lavish”, and the ability for discretionary spending without the worry of loan repayment constraints or a landlord who expected to be paid on time all the time.
173. The spouses benefited by living in a home they were secure in and had some autonomy about, they benefited by not having to make strict regular payments and having accommodations made for their somewhat lavish lifestyle. They travelled and went on holidays, they had their bills paid by the parents (and then they repaid them at their leisure), and they took payment breaks from time to time without any detriment or without threat of being evicted.
…
178. The constructive trust asserted by the husband is more akin to a very generous gift than a trust. It is all benefit to the spouses without any risk or detriment.
179. … [The Suburb F] Property is property which the parents are the legal and beneficial owners of. The spouses have no equitable or legal interest in that property, including any equitable charge.[18]
[18] Tindall & Vendric
Mr Tindall’s conduct in the way he had prosecuted his claim for property adjustment orders has been less than exemplary. Indeed, he has failed to comply with Court orders numerous times. Some of the respondents’ resultant incurrence of unnecessary costs have been identified by the second and third respondents through correspondence.[19]
[19] See for example letter dated 7 September 2020 from second and third respondents’ solicitors to applicant’s solicitors annexed to the submissions filed 18 January 2023, at pages 60-63 inclusive
It is no answer to say, as Mr Tindall does, that
The matters raised by Her Honour at R[13]-[16] refer to the Points of Claim, which the Court noted were procedurally irregular (in the sense that they were in one instance not filed but rather annexed to an affidavit, and on another instance amended without leave)… [20]
[20] Submissions filed 5 January 2023 at [17]
It was more than procedural irregularity. It was a gross failure to comply with Court orders. Mr Tindall was legally represented. He has never offered any explanation for his failure to comply with Court orders by way of sworn evidence.
Mr Tindall failed to file any Points of Claim in accordance with orders made on 21 October 2019 (albeit an attempt at filing had been made). He was directed to file the Points of Claim within 28 days. He did not do so.
Mr Tindall failed to file comply with orders made on 28 May 2020 for the filing of an amended Points of Claim. He was directed to do so within 28 days. He did not.
The Court in its primary judgment did not note all of the failures by Mr Tindall to comply with Court orders.
One only needs to read the exchange between the Court and counsel for Mr Tindall at the commencement of the final hearing in October 2021 to understand the depth of the failures by Mr Tindall to have his case ready. After the initial exchange and after the matter was stood down briefly, there was then an application to vacate the final hearing. Such application was not granted.
The Court, at final hearing, took a pragmatic approach to Mr Tindall’s failures to comply with procedural orders, by treating the amended points of claim annexed to his final written submissions as setting out the relief he sought. The Court perhaps should have insisted that Mr Tindall be bound by the documents (and only the documents) which had been filed in accordance with Court orders. There was no need for the respondents to object or raise issues of prejudice in order for the Court to hold a party to orders made. The pragmatic approach taken by the Court was ultimately to Mr Tindall’s benefit.
While Mr Tindall had standing to bring the applications he did and simply because proceedings under the Act are not usually the subject of adverse costs orders, this does not mean that a party can bring any claim with impunity. Mr Tindall’s claim joined two third parties. These third parties incurred significant legal costs in responding to a case that “[e]ven after the filing of evidence in chief, three days of hearing, and lengthy written submissions… remained confused.”[21]
[21] At [144] Reasons for Judgment
In the submissions on costs Mr Tindall contends that he was not entirely unsuccessful in the primary proceedings as he submitted to the Court following the final hearing, that “[t]he applicant contends that Orders which reflect an alteration of property interest to affect a division of between 50%/50% between the parties, to 45% to the applicant and 55% to the respondent.”[22] The submissions referred to did not reflect the proposed minute of order relied upon by Mr Tindall at final hearing. The orders sought by Mr Tindall at final hearing were as set out in Exhibit 1 in the primary proceedings.
[22] Written Submissions of Applicant filed 10 November 2021 at [86]
Mr Tindall was the applicant in the proceedings. He was the party moving the Court for a declaration and property adjustment orders. As the moving party, he had the evidentiary burden. He failed to meet that evidentiary burden.
Some of the difficulties with Mr Tindall’s claim were identified by the second and third respondents through their solicitors well prior to the final hearing.[23] Ms Vendric’s position was also made clear to Mr Tindall prior to the proceedings commencing.[24]
[23] Supra n.22 and letter dated 27 May 2020 annexed to second and third respondents’ submissions filed 7 December 2022 at page 70-71
[24] See letter dated 11 September 2018 from Ms Vendric’s solicitors to Mr Tindall’s solicitors annexed at page 14 to the submissions filed 7 December 2022
Mr Tindall submits that “[he] respectfully disagrees with some of the findings made”[25] by the Court in the primary judgment. Mr Tindall is bound by the Court’s findings. He cannot “disagree” with them. No appeal has been filed and the factual findings have not been challenged. The factual findings remain and he cannot now quibble with them[26]. The Court did not accept much of Mr Tindall’s evidence at final hearing. Indeed, the Court did not “accept that the husband at any time while the spouses were living at the [Suburb F] Property understood or thought that the property was his and the wife’s.”[27]
[25] Written Submissions of Applicant filed 5 January 2023 at [45]
[26] The submissions filed 5 January 2023 purport to also challenge the Court’s findings in respect of improvements to the property and the finding that the costs of those improvements were reconciled by the respondents.
[27] At [175] of Reasons for Judgment
The pool of assets at final hearing was assessed to be valued at $253,307, consisting mostly of Mr Tindall’s superannuation ($102,212) and Ms Vendric’s superannuation ($157,166).[28] The Suburb F Property was not included in that pool, and as such, Mr Tindall’s primary claim that such property was held on trust by Mr Vendric and Ms B Vendric failed in its entirety. The Court ordered that an adjustment be made in Ms Vendric’s favour of 60%, with such adjustment to include $16,000 which was held by Mr Vendric and Ms B Vendric for the spouses.
[28] See [183] of the Reasons for Judgment
The assets which were held by Mr Tindall at final hearing were assessed to be $114,705, and following the order for adjustment of property interest he received $101,323.
Ultimately, Mr Tindall received less than he had coming into the hearing. He failed in his primary application for the declaration of a trust in respect of the Suburb F Property. Mr Tindall failed in his application that once the declaration of trust is made, the Suburb F property be sold and he receive half of the equity held under the constructive trust. He failed in his application that Ms Vendric’s superannuation interests be split in his favour as to 40%.
The Court finds that Mr Tindall was entirely unsuccessful in his application for financial orders.
The matter had initially been set down for a two day final hearing with respect to both property and parenting in February 2021, when final orders were made by consent in respect of parenting but the proceedings were otherwise adjourned to October 2021. At the time, Mr Tindall’s solicitor was unwell and unable to attend Court, however, he was represented by counsel.
Ms Vendric made two offers to Mr Tindall to settle the proceedings, the first on 11 September 2018 and the second on 19 December 2019. Mr Tindall had the benefit of legal advice throughout the proceedings. The offers were not accepted.
Mr Vendric and Ms B Vendric likewise made an offer to settle on 19 February 2020. Such offer was not responded to.
In respect of offers to settle, the Court finds that offers were made by both Ms Vendric and her parents, and that had Mr Tindall accepted any of those offers he would have been better off than he ultimately was when final orders were made.
The Court finds that there are circumstances justifying the making of a costs order.
In respect of the amount of costs to be ordered, the Court is satisfied having regard to the earlier findings, that an order that Mr Tindall pay costs of the first respondent in accordance with Schedule 1 of Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) is an order that is in all of the circumstances appropriate. Such costs total $31,291[29] and are made up as follows:
Item 2: opposing an application that includes interim orders (other than procedural orders) up to the completion of the first court date: $3,141.50 plus $342.19
Item 8: preparation for final hearing – 2 day matter (in respect of 8 and 9 February 2021): $6,637.98
Disbursements: counsel’s fees reasonably incurred: $19,473.30 and AusScript $1,695.92
[29] As Rounded up to the nearest dollar
Having regard to the findings of the Court in the Reasons for Judgment, the Court finds 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 has been commenced and continued in circumstances where he was properly advised.
As such, there are exceptional circumstances and Mr Tindall is to pay the costs of the second and third respondent on an indemnity basis, in the amount of $67,762[30].
[30] Written Submissions of Second and Third Respondent (filed 7 December 2022) 3; As Rounded up to the nearest dollar
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 February 2023
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