Wither and Wither & Anor (Costs)

Link copied
Case Copied 27 min read

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WITHER and WITHER & ANOR (COSTS) [2024] FCWA 284

CORAM: TYSON J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 4 DECEMBER 2024

FILE NO/S: 4906 of 2019

BETWEEN: MS WITHER

Applicant

AND

MR WITHER

First Respondent

AND

MRS WITHER SENIOR

Second Respondent


Catchwords:

COSTS - Where the wife seeks costs against the husband - Where the wife successfully applied to set aside transactions pursuant to s 106B of the Family Law Act, which were opposed by the husband, and subject to a submitting notice by the Second Respondent - Where the husband's conduct as a litigant is a material matter - Where the husband rejected offers of settlement made by the wife - Where the wife claims the rejection of the offers were unreasonable in the circumstances - Where the Court finds the husband's rejection of two offers were unreasonable and imprudent - Where an award of costs in favour of the wife is justified - Where the Court is not satisfied that an order for indemnity costs is warranted - Costs fixed in a sum - Case turns on own facts

Legislation:

Family Law Act 1975 (Cth)
Legal Profession (Family Court of Western Australia) Determination 2020

Category: Reportable

Representation:

Counsel:

Applicant : Written Submissions
First Respondent : Written Submissions
Second Respondent : Did not participate

Solicitors:

Applicant : Law Firm A
First Respondent : Self-Represented Litigant
Second Respondent : Self-Represented Litigant

Case(s) referred to in decision(s):

Addison & Lahey [2008] FamCA 248

Alston & Alston [2021] FedCFamC1A 96

Anison & Anison (2019) FLC 93-908

B and B (No 3) [2015] FCWA 65

Braithwaite & Braithwaite [2007] FamCA 468

Collins and Collins (1985) FLC 91-603

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania))

v Fish & Anor (2005) 33 Fam LR 123

Greedy and Greedy (1982) FLC 91-250

I and I (No 2) (1995) FLC 92-625

Kohan and Kohan (1993) FLC 92-340

Luadaka v Luadaka (1998) FLC 92-830

Madin & Palis (Costs) (2016) 55 Fam LR 59

Munday v Bowman (1997) FLC 92-784

Northern Territory v Sangare (2019) 265 CLR 164

Prantage & Prantage (2013) FLC 93-544

Prantage & Prantage (Costs) [2014] FamCA 850

Wither and Wither & Anor [2024] FCWA 16

Wither and Wither & Anor [2024] FCWA 177

Wither and Wither & Anor [2024] FCWA 243

Wither and Wither & Anor [2024] FCWA 244

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wither and Wither & Anor has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Wither and Wither & Anor (Costs) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2024] FCWA 284
Decision Date

CaseChat Overview and Summary

In the matter of Wither and Wither, the wife sought costs against the husband following a successful application to set aside transactions under section 106B of the Family Law Act. The husband had opposed the application, and the matter was subject to a submitting notice by the second respondent. The wife argued that the husband's conduct as a litigant was material, particularly his rejection of settlement offers made by her, which she claimed were unreasonable. The court considered whether the husband's rejection of two offers was unreasonable and imprudent, ultimately finding that an award of costs in favour of the wife was justified.

The court examined the reasonableness of the husband's conduct, focusing on the rejection of settlement offers. The wife argued that these rejections were unreasonable, given the circumstances, and the court agreed, finding the husband's actions to be imprudent. The wife's application for indemnity costs was not accepted, as the court found that the wife had not demonstrated that the husband's conduct warranted such an order. Instead, the court fixed costs in a sum that reflected the findings regarding the husband's unreasonable conduct.

The decision was grounded in the specific facts of the case, highlighting the importance of the husband's actions in the context of the litigation. The court's findings were centred on the husband's rejection of settlement offers, which it deemed unreasonable and imprudent. The outcome was a costs order in favour of the wife, reflecting the court's assessment of the husband's conduct, but without imposing the higher burden of indemnity costs.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.