Tredrea and Geller & Ors - [2017] FamCA 156

FAMILY COURT OF AUSTRALIA

TREDREA & GELLER AND ORS

[2017] FamCA 156

FAMILY LAW – COSTS – where the respondents seek costs against the applicant – where the respondents further seek costs on an indemnity basis – where the applicant opposes an order for costs – where consideration is given to the circumstances in which indemnity costs are awarded – where the Court held the applicant was not frivolous, malicious or vexatious and the proceedings were not beyond that which is experienced in this Court on a regular basis – where party/party costs awarded in favour of the respondents

Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules 2004 (Cth) r 19.08(1), 19.08(3), 19.18

Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage (2013) 49 Fam LR 197
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Tredrea & Geller & Ors [2016] FamCA 634
Tredrea & Geller & Ors (No 2) [2016] FamCA 949

APPLICANT:	Ms Tredrea
1st RESPONDENT:	Ms Geller

2nd RESPONDENT:

Ms Merritt

3rd RESPONDENT:

Ms Johns

4th RESPONDENT:

Mr Fuller

FILE NUMBER:

ADC

2149

2016

DATE DELIVERED:

17 March 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant in person

COUNSEL FOR THE RESPONDENTS:

Mr Portway

SOLICITOR FOR THE RESPONDENTS:

Heuzenroeders Lawyers

Mr Portway

Heuzenroeder Lawyers

Orders

The applicant pay the respondent’s costs fixed in the sum of THIRTY TWO THOUSAND EIGHT HUNDRED AND THIRTY EIGHT DOLLARS ($32,838) on or before 90 days from the date of this order.
That if the applicant shall fail to pay the costs sum as provided for herein THEN interest shall run on the outstanding amount of such payment from the date of default to the date of payment as prescribed by the Family Law Rules.
That the application for costs do otherwise stand dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tredrea & Geller and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2149 of 2016

Ms Tredrea

Applicant

And

Ms Geller and Ms Merritt and Ms Johns and Mr Fuller

Respondents

REASONS FOR JUDGMENT

introduction

Following a hearing on 13, 14 and 16 September 2016, Orders were made that dismissed the Further Amended Application in a Case filed 29 August 2016. That order had the effect of resolving all outstanding matters other than the question of costs.
The focus of the proceedings at trial was…

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.

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Details

Case: [2017] FamCA 156
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the matter of *Tredrea and Geller & Ors*, heard before Berman J, the applicant sought to oppose an order for costs made in favour of the respondents. The respondents, in turn, sought costs on an indemnity basis.

The central legal issue before the Court was whether the circumstances warranted the award of indemnity costs against the applicant. This required the Court to consider the threshold for such an award, particularly in relation to the applicant's conduct and the nature of the proceedings.

Berman J determined that the applicant's conduct did not meet the criteria for indemnity costs, finding that the proceedings were neither frivolous, malicious, nor vexatious, and were within the usual scope of matters encountered by the Court. Consequently, the Court ordered that the applicant pay the respondents' costs on a party/party basis. The applicant was ordered to pay the sum of $32,838 within 90 days, with interest to accrue on any outstanding amount thereafter. The respondents' application for indemnity costs was otherwise dismissed.

Orders

Orders of the court

The applicant pay the respondent’s costs fixed in the sum of THIRTY TWO THOUSAND EIGHT HUNDRED AND THIRTY EIGHT DOLLARS ($32,838) on or before 90 days from the date of this order.

That if the applicant shall fail to pay the costs sum as provided for herein THEN interest shall run on the outstanding amount of such payment from the date of default to the date of payment as prescribed by the Family Law Rules.

That the application for costs do otherwise stand dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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