TRITTON & DUCATTI - [2020] FamCA 392

FAMILY COURT OF AUSTRALIA

TRITTON & DUCATTI

[2020] FamCA 392

FAMILY LAW – PROPERTY – Costs – Where the husband and second respondent primarily seek costs on an indemnity basis – Consideration of ss 117(1) and 117(2) of the Family Law Act 1975 (Cth) and the differing position of the husband and second respondent in relation to the considerations in a costs application – Wife’s conduct and imprudent refusal to accept offers of settlement significant factors in the determination of the quantum and basis of costs ordered to be paid – Wife ordered to pay second respondent’s costs on an indemnity basis from 27 September 2017 being the date of the second respondent’s offer of settlement – Wife ordered to pay husband’s costs assessed at 50% of costs billed from 18 November 2018 being the date of his first offer of settlement.

Family Law Act 1975 (Cth), ss 117(1), 117(2)
Family Law Rules 2004 (Cth) r 19.8(1)(a)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) [1993] FCA 70

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Moorcroft & Moorcroft [2017] FamCAFC 147

Munday v Bowman (1997) FLC 92-784

Penfold & Penfold (1980) 144 CLR 311

Phillips & Hansford [2020] FamCAFC 28
Rankin & Rankin (No 3) (2019) FamCAFC 133

Sfakianakis & Sfakianakis [2019] FamCAFC 54

Smith & Fields (Third Party Costs) [2013] FamCA 505

Worth & Worth and ICL (No. 2) [2019] FamCFC 126

APPLICANT:

Mr Tritton

RESPONDENT:

Ms Ducatti

SECOND RESPONDENT:

Mr E Tritton

FILE NUMBER:

SYC

6271

2016

DATE DELIVERED:

25 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

13 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Holmes Donnely & Co Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Douros Jackson Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

York Law Family Specialists

Orders

The wife to pay the second respondent’s costs on an indemnity basis in the sum of $148,783.46.
The wife to pay the husband’s costs assessed in the amount of $69,855.
The husband may reduce monies to be paid to the wife pursuant to Orders made by the Court on 20 September 2019 by an amount of $218,598.46 to satisfy Orders 1 and 2 herein.
Upon the husband exercising the option in Order 3 herein he is to pay to the second respondent the sum of $148,783.46 or as he may direct with the balance to be retained by the husband to satisfy the Costs Order made in his favour.

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 Tritton & Ducatti 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…

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

AGLC: TRITTON & DUCATTI [2020] FamCA 392
Case: [2020] FamCA 392
Decision Date: 25 May 2020

CaseChat Overview and Summary

In the matter of *Tritton & Ducati*, Henderson J considered a dispute concerning property and costs. The husband and the second respondent sought costs primarily on an indemnity basis.

The central legal issues before the court were the application of sections 117(1) and 117(2) of the *Family Law Act 1975* (Cth) to the differing positions of the husband and the second respondent in their respective costs applications, and whether the wife's conduct warranted an order for costs on an indemnity basis.

Henderson J reasoned that the wife's conduct, particularly her imprudent refusal to accept settlement offers, was a significant factor in determining the quantum and basis of costs. The court found that the wife was to pay the second respondent's costs on an indemnity basis from 27 September 2017, the date of the second respondent's settlement offer. Furthermore, the wife was ordered to pay the husband's costs, assessed at 50% of costs billed from 18 November 2018, the date of his first settlement offer.

The court ordered the wife to pay the second respondent's costs in the sum of $148,783.46 and the husband's costs assessed at $69,855. The husband was permitted to reduce monies payable to the wife by $218,598.46 to satisfy these costs orders.

Orders

Orders of the court

The wife to pay the second respondent’s costs on an indemnity basis in the sum of $148,783.46.

The wife to pay the husband’s costs assessed in the amount of $69,855.

The husband may reduce monies to be paid to the wife pursuant to Orders made by the Court on 20 September 2019 by an amount of $218,598.46 to satisfy Orders 1 and 2 herein.

Upon the husband exercising the option in Order 3 herein he is to pay to the second respondent the sum of $148,783.46 or as he may direct with the balance to be retained by the husband to satisfy the Costs Order made in his favour.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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