Travers & Debski (No 3) - [2022] FedCFamC1F 1026

Federal Circuit and Family Court of Australia
(DIVISION 1)
Travers & Debski (No 3) [2022] FedCFamC1F 1026

File number: BRC 13687 of 2018

Judgment of: HOGAN J

Date of judgment: 19 December 2022

Catchwords: FAMILY LAW – COSTS – Where the Court is persuaded that the circumstances justify the making of an order for costs – where the court is persuaded that the circumstances justify the making of an order that costs are paid on the indemnity basis.

Legislation:
Family Law Act 1975 (Cth)

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

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Limousin v Limousin (Costs) 38 Fam LR 478; [2007] FamCA 1178

In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: First Instance

Number of paragraphs: 18

Date of hearing: Determined in Chambers following the receipt of written submissions

Place: Brisbane

Solicitor for the Applicant: Bell Legal Group by way of written submissions contained within the Outline of Closing Submissions filed 24 November 2021

Solicitor for the Respondent: JML Rose by way of written submissions filed 14 November 2022
ORDERS

BRC 13687 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TRAVERS

Applicant

AND:
MR DEBSKI

Respondent

order made by:

HOGAN J

DATE OF ORDER:

19 DECEMBER 2022

THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), Mr Debski shall pay Ms Travers’ costs:
(a)of and incidental to the adjournment of the trial ordered on 14 September 2020; and
(b)thrown away on 15 March 2021; and
(c)of and incidental to the adjournment of the trial ordered on 16 March 2021.

2.Pursuant to Rule 12.17(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the costs referred to in Order 1 shall be as assessed on the indemnity basis and shall be in an amount as agreed between the parties or, failing agreement, as assessed on that basis.
3.Pursuant to Rule 12.13(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Mr Debski shall pay Ms Travers’ costs within 7 days of any agreement as to the quantum of the same or within 7 days of any costs assessment order being made.

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…

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 Travers & Debski (No 3)

Details

AGLC: Travers & Debski (No 3) [2022] FedCFamC1F 1026
Case: [2022] FedCFamC1F 1026
Decision Date

CaseChat Overview and Summary

Ms Travers sought an order that Mr Debski pay her costs of and incidental to the adjournment of the trial on 14 September 2020 and 16 March 2021, as well as the costs thrown away on 15 March 2021, calculated on an indemnity basis. Mr Debski opposed the application. The court was required to determine whether the circumstances justified making an order for costs and, if so, whether it was appropriate for those costs to be assessed on the indemnity basis. The court considered the matter of costs under the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, taking into account the relevant case law and statutory provisions.

The court found that Mr Debski’s failure to properly comply with the obligation to make full and frank disclosure of documents led to the adjournment of the trial on 14 September 2020 and 16 March 2021, as well as the costs thrown away on 15 March 2021. The court held that Mr Debski’s conduct was responsible for the incurred costs, and therefore, the circumstances justified making an order for costs. Furthermore, the court determined that it was just for Mr Debski to pay Ms Travers’ costs on the indemnity basis, as his disregard for the disclosure obligation was a significant factor in the incurred costs. The court emphasised that the inability to precisely determine the amount of costs on the indemnity basis was not a barrier to granting the application, as the Judicial Registrar would assess the reasonable costs incurred. The court made an order for Mr Debski to pay Ms Travers’ costs within a specified timeframe to minimise further discord and ensure the litigation could come to an end.

The court ordered Mr Debski to pay Ms Travers' costs of and incidental to the adjournment of the trial on 14 September 2020 and 16 March 2021, as well as the costs thrown away on 15 March 2021, on the indemnity basis. The costs were to be assessed according to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Mr Debski was required to pay the costs within seven days of any agreement on the quantum of the costs or any costs assessment order being made.

Orders