Tolarno & Tolarno (No 2) - [2022] FedCFamC1F 184

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tolarno & Tolarno (No 2) [2022] FedCFamC1F 184

File number(s): MLC 4394 of 2018

Judgment of: WILLIAMS J

Date of judgment: 24 March 2022

Catchwords: FAMILY LAW – COSTS – Wife’s application for indemnity costs following a successful summary dismissal of the husbands application for variation of final orders – Where the husband seeks the costs application to be dismissed – Consideration of relevant principles including s 117 provisions – Consideration of indemnity costs – Where the wife contends the husband had no chance of success and there was an imprudent refusal of an offer to compromise by the husband – Husband ordered to pay wife’s costs on a party/party basis on scale with counsel’s fees as charged, including senior counsel.

Legislation: Family Law Act 1975 (Cth) ss 79A, 117

Cases cited:
Buckley & Buckley [2013] FamCAFC 150

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

Tolarno & Tolarno [2021] FedCFamC1F 232

Sfakianakis & Sfakianakis [2019] FamCAFC 54

Worth & Worth (No. 2) [2019] FamCAFC 126

Division: Division 1 First Instance

Number of paragraphs: 53

Date of hearing: 1 March 2022

Place: Melbourne

Counsel for the Applicant: Mr Dunlop

Solicitor for the Applicant: Nicholes Family Lawyers

Counsel for the Respondent: Mr Atkinson

Solicitor for the Respondent: Pearsons Lawyers Pty Ltd
ORDERS

MLC 4394 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TOLARNO

Applicant

AND:
MR TOLARNO

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:
1.Within 30 days of the date of these orders:
(a)the husband pay the wife’s costs of and incidental to the husband’s Initiating Application filed 20 October 2020, on a party/party basis on the applicable scale, as agreed;
(b)the husband pay all counsel’s fees, including senior counsel, incurred by the wife, of and incidental to the husband’s Initiating Application filed 20 October 2020.

2.In default of agreement within 30 days, the wife’s costs be assessed by a Registrar of the Court, and the husband pay the assessed costs to the wife within 30 days of the assessment.

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 Tolarno & Tolarno has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS…

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 Tolarno & Tolarno (No 2)

Details

AGLC: Tolarno & Tolarno (No 2) [2022] FedCFamC1F 184
Case: [2022] FedCFamC1F 184
Decision Date

CaseChat Overview and Summary

The matter of Tolarno & Tolarno (No 2) involved a dispute between the husband and wife, focusing on the allocation of costs related to the husband’s Initiating Application filed on 20 October 2020. The case was heard and determined by the Family Court of Australia. The wife sought a special costs order in response to the husband's application, arguing that the circumstances warranted such an order.

The primary legal issue before the court was whether the particular facts and circumstances of the case justified the making of a special costs order. This determination hinged on the precedent set by Colgate-Palmolive Co v Cussons Pty Ltd and subsequent authorities, which affirmed that the categories for special costs orders are not closed and can be invoked when warranted. The court was also required to consider section 117(2) of the relevant Act, which supports the discretionary power of the court to order special costs.

The court concluded that the circumstances indeed warranted a special costs order, given the nature of the application and the parties' engagement of senior counsel. The court decided to order the husband to pay the wife's costs on a party/party basis, including the wife's counsel's fees as charged rather than according to scale. The court's decision was intended to strike an appropriate balance, reflecting the engagement of senior counsel by both parties. If the parties could not agree on the quantum of costs within 30 days, the matter was to be assessed by a Registrar. The husband was ordered to pay the assessed costs and the wife’s counsel's fees within 30 days of the assessment.

The court proceeded to make the appropriate orders, ensuring that the husband would bear the financial responsibility for the wife's costs and counsel's fees as outlined in the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Sfakianakis, the Full Court said at [12]:As the decision in Colgate -Palmolive Co v Cussons Pty Ltd (1936) 46 FCR 225 at 223–234 (“Colgate-Palmolive”) and the extensive authorities referred to in it make clear, the categories for the making of special costs orders are not closed and may be made whenever the particular facts and circumstances warrant it. That position is reflected in s 117(2) of the Act.CONCLUSION In this matter, I propose to make an order that the husband pay the wife’s costs of and incidental to the husband’s Initiating Application filed 20 October 2020, on a party/party basis on scale and I intend to order the husband to pay the wife’s counsel’s fees, including senior counsel and junior counsel’s fees as charged, rather than according to scale. It is clearly appropriate that the wife engaged senior counsel, as did the husband. That strikes the appropriate balance of costs which should be paid by the husband. In the event the costs the parties are unable to reach agreement as to quantum within 30 days, the costs be assessed by a Registrar and paid by the husband within 30 days of the assessment. The wife’s counsel’s fees are to be paid by the husband within 30 days of the orders. I will make the appropriate orders.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 4394 of 2018
Judgment of:	WILLIAMS J
Date of judgment:	24 March 2022
Catchwords:	FAMILY LAW – COSTS – Wife’s application for indemnity costs following a successful summary dismissal of the husbands application for variation of final orders – Where the husband seeks the costs application to be dismissed – Consideration of relevant principles including s 117 provisions – Consideration of indemnity costs – Where the wife contends the husband had no chance of success and there was an imprudent refusal of an offer to compromise by the husband – Husband ordered to pay wife’s costs on a party/party basis on scale with counsel’s fees as charged, including senior counsel.
Legislation:	Family Law Act 1975 (Cth) ss 79A, 117
Cases cited:	Buckley & Buckley [2013] FamCAFC 150 In the Marriage of I & I (No 2) (1995) 22 Fam LR 557 Tolarno & Tolarno [2021] FedCFamC1F 232 Sfakianakis & Sfakianakis [2019] FamCAFC 54 Worth & Worth (No. 2) [2019] FamCAFC 126
Division:	Division 1 First Instance
Number of paragraphs:	53
Date of hearing:	1 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Dunlop
Solicitor for the Applicant:	Nicholes Family Lawyers
Counsel for the Respondent:	Mr Atkinson
Solicitor for the Respondent:	Pearsons Lawyers Pty Ltd

MLC 4394 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS TOLARNO Applicant
AND:	MR TOLARNO Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	24 MARCH 2022