Wood and Muller (No 2) - [2020] FamCA 388

FAMILY COURT OF AUSTRALIA

WOOD & MULLER (NO. 2)

[2020] FamCA 388

FAMILY LAW – COSTS – where the wife seeks costs on an indemnity basis – where final orders were made over 14 years prior to the husband’s application – where the husband was wholly unsuccessful in his application – where the husband’s application had no reasonable prospect of success – where the husband was on notice as to the potential cost consequences of pursuing his application – where the husband’s conduct justifies an order as sought by the wife – order that the husband pay the wife’s costs on an indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Brito & Jalaba [2012] FamCAFC 188
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
I and I (1995) FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Nada & Nettle (Costs) (2014) FLC 93-612
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Mr Wood

RESPONDENT:

Ms Muller

FILE NUMBER:

MLC

10449

2019

DATE DELIVERED:

21 May 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

Written Submissions In Chambers

REPRESENTATION

THE RESPONDENT

In person

SOLICITOR FOR THE APPLICANT

Southern Family Law

Orders

That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, calculated on an indemnity basis and fixed in the sum of $18,285.64.
That all extant applications be otherwise dismissed.

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 Wood & Muller 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 for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10449 of 2019

Mr Wood

Applicant

And

Ms Muller

Respondent

REASONS FOR JUDGMENT

Introduction

On 9 December 2005 final property orders were made by Dessau J in the Family Court of Australia at Melbourne (“Final Orders”). Those orders had the effect of ending the parties’ financial relationship.
Some 14 years later, on 10 March 2020 an amended Initiating Application filed by the husband on 23 January 2020 was listed for hearing in the Judicial Duty List. That application sought orders relating to the former matrimonial home, the status of the parties’ relationship and sought relief against multiple banking institutions as well as former and current law firms engaged by the wife.
The wife, in her Response filed 28 November 2019, sought that the husband’s application be summarily dismissed…

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 Wood and Muller (No 2)

Details

AGLC: Wood and Muller (No 2) [2020] FamCA 388
Case: [2020] FamCA 388
Decision Date: 21 May 2020

CaseChat Overview and Summary

In *Wood and Muller (No 2)*, Johns J of the Federal Circuit and Family Court of Australia was required to determine an application for costs following earlier proceedings between the parties. The dispute concerned the wife's entitlement to an indemnity costs order against the husband.

The central legal issue before the court was whether the husband's conduct warranted the exercise of discretion to award costs on an indemnity basis. This involved considering whether the husband's actions had been unreasonable or vexatious, thereby justifying a departure from the usual order for costs to be assessed on a party and party basis.

Johns J reasoned that the husband's conduct throughout the proceedings had been unreasonable, particularly in relation to his failure to comply with court orders and his pursuit of certain applications. The court applied the principles governing indemnity costs, which require a higher threshold of unreasonableness than that needed for ordinary costs. The judge found that the husband's conduct met this threshold, justifying the award of indemnity costs to the wife.

Consequently, the court ordered that the husband pay the wife's costs of and incidental to the proceedings on an indemnity basis, fixed at $18,285.64, and that all other extant applications be dismissed.

Orders

Orders of the court

That within 30 days the husband pay the wife’s costs of and incidental to the proceedings, calculated on an indemnity basis and fixed in the sum of $18,285.64.

That all extant applications be otherwise dismissed.

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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