FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Venter & Venter (No 4) [2023] FedCFamC1F 64
File number: BRC 10651 of 2021 Judgment of: CAREW J Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – COSTS – applications brought against the wife by the respondents – where the matter is proceeding by way of pleadings – where the costs incurred arose as a direct result of the wife’s failure, as found, to properly plead her case and to properly set out the relief sought
FAMILY LAW – PROPERTY – valuation of property – application brought by the wife for the appointment of a single expert to value three real properties and 22 entities and for the husband and additional respondents to bear the cost – where the wife has not addressed relevant matters necessary to support her application – application dismissed
FAMILY LAW – PROCEDURAL – consideration given to bifurcation to enable discrete issues to be determined – matter adjourned for further case management hearing
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294
Lenova & Lenova (Costs) [2011] FamCAFC 141
Nada & Nettle (Costs) (2014) FLC 93-612
Parke & the Estate of the Late A Parke (2016) FLC 93–748
Penfold v Penfold (1980) 144 CLR 311
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6
Venter & Venter (No 3) [2022] FedCFamC1F 278
VC & CG & Ors (2010) FLC 93-434
Number of paragraphs: 76 Date of hearing: 16 December 2022 Place: Brisbane Counsel for the Applicant: Mr Brown KC with Ms Matson Solicitor for the Applicant: Damien Greer Lawyers For the First Respondent: Litigant in person Counsel for the Second, Third, Fifth, and Seventh Respondents: Mr Newlinds SC with Ms Jeliba Solicitor for the Second, Third, Fifth and Seventh Respondents Barkus Doolan Family Lawyers For the Fourth Respondent Did not participate Counsel for the Eighth Respondent Mr Rogan Solicitor for the Eighth Respondent Pearson Emerson Family Lawyers ORDER
BRC 10651 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VENTER
Applicant
AND: MR VENTER
First Respondent
MR B VENTER
Second Respondent
MR C VENTER (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
20 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The applicant wife pay the 2nd, 3rd, 5th and 7th respondents’ costs of and incidental to:
(a)those paragraphs of the Application in a Proceeding filed 6 December 2021 seeking to strike out various paragraphs of the wife's Points of Claim…
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- AGLC
- Venter & Venter (No 4) [2023] FedCFamC1F 64
- Case
- [2023] FedCFamC1F 64
- Decision Date
CaseChat Overview and Summary
The court ruled that the wife was to bear the costs incurred by several respondents due to her failure to properly plead her case, leading to the abandonment or amendment of various interlocutory orders. The court also dismissed the wife's application for the appointment of a single expert to value properties and entities, as she did not address relevant matters necessary to support her application. The court considered the possibility of bifurcation to enable discrete issues to be determined but decided to adjourn the matter for a further case management hearing.
The court ordered that the wife pay the costs of several respondents, with some costs to be assessed on a party and party basis, and others to be fixed at a specific amount. The wife's various applications for costs and valuation were dismissed, and the matter was adjourned for a case management hearing. The wife was also required to file and serve submissions addressing specific matters identified in the court's reasons for judgment.
The final orders included the wife paying the costs of the respondents, staying the payment of costs until the finalisation of the substantive proceedings, dismissing all outstanding interim applications, and requiring the wife and respondents to file and serve submissions addressing specific matters identified in the court's reasons for judgment. The matter was listed for a case management hearing before the Honourable Justice Carew.
Orders
Orders of the court
1. The applicant wife pay the 2nd, 3rd, 5th and 7th respondents’ costs of and incidental to:
(a) those paragraphs of the Application in a Proceeding filed 6 December 2021 seeking to strike out various paragraphs of the wife's Points of Claim annexed to the applicant wife’s affidavit filed 12 October 2021;
(b) drafting and filing the Points of Defence of the 2nd, 3rd, 5th and 7th respondents annexed to the affidavit of the 2nd and 3rd respondents filed 24 January 2022;
(c) the hearing on 7 April 2022;
(d) review and consideration of the applicant wife's draft Amended Points of Claim;
(e) review and consideration of the wife's draft further Amended Initiating Application;
(f) review and consideration of the wife's Amended Points of Claim annexed to the applicant wife's affidavit filed 22 June 2022;
(g) review and consideration of the wife's further Amended Initiating Application filed 22 June 2022; and
(h) the Application in a Proceeding (costs) filed 15 July 2022,
with such costs to be as agreed and failing agreement as assessed on a party and party basis.
2. The applicant wife pay the 2nd, 3rd, 5th and 7th respondents’ costs thrown away as a result of the wife abandoning or amending the various interlocutory orders sought by the wife in her Initiating Application filed 11 August 2021, the Amended Initiating Application filed 12 October 2021, and the further Amended Initiating Application filed 22 June 2022, with such costs to be as agreed and failing agreement as assessed on a party and party basis.
3. The applicant wife pay the 2nd, 3rd, 5th and 7th respondents’ costs of and incidental to the Application in a Proceeding (costs) filed 14 October 2022, with such costs to be as agreed and failing agreement as assessed on a party and party basis.
4. The Application in a Proceeding filed by the applicant wife on 4 November 2022 is dismissed.
5. The applicant wife pay the 2nd, 3rd, 5th and 7th respondents’ costs of and incidental to responding to the Application in a Proceeding filed by the applicant wife on 4 November 2022 with such costs to be as agreed and failing agreement as assessed on a party and party basis.
6. The applicant wife pay the 8th respondent’s costs of and incidental to:
(a) the Response to Application in a Proceeding filed 16 February 2022;
(b) the hearing on 7 April 2022;
(c) drafting and filing the 8th respondent’s Points of Defence annexed to the Affidavit of Mr J dated 3 February 2022;
(d) review and consideration of the wife's draft Amended Points of Claim;
(e) review and consideration of the wife's draft further Amended Initiating Application;
(f) review and consideration of the wife's Amended Points of Claim annexed to the wife's Affidavit filed 22 June 2022; and
(g) review and consideration of the wife's further Amended Initiating Application filed 22 June 2022;
with such costs to be fixed in the sum of $30,000.
7. The applicant wife pay the 8th respondent’s costs of and incidental to the Application in a Proceeding (costs) filed 15 July 2022, with such costs to be as agreed and failing agreement as assessed on a party and party basis.
8. The applicant wife pay the 8th respondent’s costs thrown away as a result of the wife abandoning or amending the various interlocutory orders sought by the wife in her Amended Initiating Application filed 12 October 2021, and the further Amended Initiating Application filed 22 June 2022, with such costs to be as agreed and failing agreement as assessed on a party and party basis.
9. The applicant wife pay the 8th respondent’s costs of and incidental to the Application in a Proceeding (costs) filed 20 October 2022, with such costs to be as agreed and failing agreement as assessed on a party and party basis.
10. The Application in a Proceeding (costs) filed by the applicant wife on 21 October 2022 be adjourned to the first day of trial of this matter.
11. The payment by the applicant wife of the costs as provided in this Order be stayed until 28 days after the finalisation of the substantive proceedings.
12. All outstanding interim applications be otherwise dismissed.
13. The wife file and serve any submissions (no more than five pages) addressing the matters identified in paragraphs 73 - 75 of the Reasons for Judgment delivered on 20 February 2023 on or before 6 March 2023.
14. The 2nd, 3rd, 5th and 7th respondents file and serve any submissions (no more than five pages) addressing the matters identified in paragraphs 73 - 75 of the Reasons for Judgment delivered on 20 February 2023 on or before 20 March 2023.
15. The 8th respondent file and serve any submissions (no more than five pages) addressing the matters identified in paragraphs 73 - 75 of the Reasons for Judgment delivered on 20 February 2023 on or before 20 March 2023.
16. The matter be listed for a case management hearing before the Honourable Justice Carew on 27 March 2023 at 9.30am at which time all parties have leave to appear via Microsoft Teams.
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.
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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