WENTNER & RATER

[2011] FamCA 104

FAMILY COURT OF AUSTRALIA

WENTNER & RATER [2011] FamCA 104

FAMILY LAW - COSTS – Circumstances justifying order - offer of settlement

Family Law Act 1975 (Cth)

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 FamLR 123
Penfold v Penfold (1980) FLC 90-800
Stephens and Stephens and Ors (enforcement) (costs) (2010) FamCAFC 172
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPLICANT: Mr Wentner

RESPONDENT: Ms Rater

FILE NUMBER: MLC 1003 of 2007

DATE DELIVERED: 28 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Cronin

HEARING DATE: By way of written submissions

SUBMSISIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

1. That the husband’s application that the wife pay costs is dismissed.

2. That the wife’s application that the husband pay her costs is granted and that the husband pay the wife’s costs fixed in the sum of $35,000.

IT IS NOTED that publication of this judgment under the pseudonym Wentner & Rater is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1003  of 2007

Mr Wentner

Applicant

And

Ms Rater

Respondent

REASONS FOR COSTS JUDGMENT

1. On 20 December 2010 I made orders in a property dispute between the parties and made provision for the determination of any costs disputes by way of submissions.

2. On 24 January 2011, the wife filed an application supported by submissions drawn by her counsel in which she sought costs initially on an indemnity basis and then in the alternative, according to the scale.  She sought costs for the period subsequent to 20 July 2009 and in the alternative for the specific hearing in December 2010.

3. The husband responded by application and submission on 14 February 2011.  In addition to opposing the wife’s application for costs, he sought costs himself. 

4. In this case, I propose to make an order for costs in favour of the wife and to refuse the husband’s application.  In the reasons for judgment I set out that the discrete issues were what each party was to receive from the pool of assets both as to the percentage entitlement and as to the specific assets.  The other issues related to an argument by the husband about an extra skill claimed by him and which was said to have increased his contribution.  There were arguments about adding amounts notionally to the pool and also arguments about the future financial circumstances of each party. 

5. The husband also sought an order for spousal maintenance but he abandoned that at the conclusion of the evidence.

6. Despite the long gestation period to trial, a number of matters changed during the hearing itself.  The husband initially argued that there had been wastage on the part of the wife in her choice and ultimate disposal of motor cars but in the…