Warin & Warin (No 6) - [2022] FedCFamC1F 457

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 6) [2022] FedCFamC1F 457

File number(s): MLC 7368 of 2020

Judgment of: WILSON J

Date of judgment: 4 July 2022

Catchwords:
FAMILY LAW – INDEMNITY COSTS – indemnity costs sought for failed joinder application – party/party costs ordered – indemnity costs sought against the solicitor for the second and third respondents – application for costs refused.

FAMILY LAW – DISCLOSURE – persistent failure by bankrupt to give disclosure to enable the question whether any of his property was vested property to be ascertained – bankrupt persistently thwarting a determination being made about whether he has standing yet he persists in participating in this litigation as if he is man of substance when he is a man of straw.

FAMILY LAW – self executing orders.

Legislation: Family Law Act 1975 (Cth) ss 117(1), (2), (2A)

Cases cited:
Warin & Warin (No 4) [2022] FedCFamC1F 160

Warin & Warin (No 5) [2022] FedCFamC1F 452

Warin & Warin [2021] FedCFamC1F 269
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Fitzgerald v Fish (2005) 33 Fam LR 123

Garston & Yeo [2022] FedCFamC1F 235
Stasiuk & Guild [2020] FamCA 564
Hatch v Cohn (2004) 139 FCR 425

In the Marriage of Hogan (1986) 10 Fam LR 681

Hearne v Street (2008) 235 CLR 125

Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Medlow & Medlow(No 6) (2015) 54 Fam LR 1
Zheng & Cheung [2022] FedCFamC1F 249

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 21 June 2022

Place: Melbourne

Solicitor for the Applicant: Vadarlis & Associates

Solicitor for the First and Second Respondent: Sebastian Rubera & Associates

Solicitor for the Third and Fourth Respondents: Maddocks Lawyers
ORDERS

MLC 7368 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WARIN

Applicant

AND:
MR WARIN

First Respondent

MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND

Second Respondent

MS INSTON

Third Respondent

WARIN PTY LTD
Fourth Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

4 JULY 2022

THE COURT ORDERS THAT:
1.The third respondent must pay the costs of the failed attempt to join Mr N and Ms P on a party/ party basis to be assessed by a registrar by no later than 14 November 2022.
2.The application for an order for indemnity costs against the solicitor for the second and third respondents is refused.
3.On or before 4:00pm on 18 July 2022 the bankrupt must give disclosure in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in specific reference to vested property within the meaning of the Bankruptcy Act.
4.If the bankrupt fails to comply with paragraph three hereof then any application by the applicant in relation to staying the bankrupt’s application in this proceeding or in relation to security for costs must be filed and served…

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 Warin & Warin (No 6)

Details

AGLC: Warin & Warin (No 6) [2022] FedCFamC1F 457
Case: [2022] FedCFamC1F 457
Decision Date

CaseChat Overview and Summary

In Warin & Warin (No 6), the Federal Circuit and Family Court of Australia (Division 1) considered an application for costs following a failed joinder application and the bankrupt husband's failure to provide disclosure. The wife, Ms Warin, sought indemnity costs from the third respondent, Ms Inston, and her solicitor, Mr Rubera, for the unsuccessful joinder application. Additionally, Ms Warin sought costs for her successful application to be relieved of an implied undertaking imposed under Hearne v Street. The court assessed the legal issues concerning the appropriateness of ordering indemnity costs for a failed joinder application and the bankrupt husband's ongoing failure to provide disclosure.

The court held that while it was appropriate to order costs against the third respondent for the failed joinder application, it was not appropriate to order indemnity costs against Mr Rubera, the solicitor. Indemnity costs are only awarded in exceptional circumstances, and the wife did not provide evidence to support that such circumstances existed. The court emphasized that the failure of an application does not inherently mean the solicitor should be personally liable for indemnity costs. Additionally, the court ruled that the bankrupt husband's persistent failure to provide disclosure concerning his vested property obstructed the determination of his standing in the litigation. The husband, who is an undischarged bankrupt, continued to participate in the litigation despite his lack of standing, causing the wife to incur costs. The court ordered the bankrupt to provide the required disclosure by a specific date or face potential consequences such as halting further steps in the litigation or being subject to a security for costs application.

The court's orders included a requirement for the third respondent to pay the costs of the failed joinder application on a party/party basis. The application for indemnity costs against Mr Rubera was refused. The bankrupt was ordered to provide disclosure regarding vested property by a specific date, with the court threatening to halt further steps in the litigation or entertain a security for costs application if the bankrupt failed to comply. The further hearing of the proceeding was adjourned to make further directions.

Orders