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Jillet v Jillet (No. 2) [2019] FamCA 242

By October 24, 2021 No Comments
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In the case of Jillet v Jillet (No. 2), the court set out for practitioners, and the parties of course, the principles relating to a costs order.

On 9 February 2018, final property settlement Orders were made following a trial.

On 27 November 2018, the wife filed an Application in a Case seeking an order that the husband pay her costs of and incidental to the proceedings and the costs of her slip rule application.

The husband sought, in return, that the wife pays her share of a single expert report.

The court determined there was nothing in the matter indicative of there being “any departure from the provisions of rule 15.47 that provides that the parties are equally liable to pay a single expert witness reasonable fees and expenses incurred in preparing a report”.

The court then considered the application for costs. Section 117 of the court provides that each party will bear his or her own costs.

The court acknowledged there was a discretion afforded to the trial judge and that if there are “circumstances that justify it in doing so”, the court can make other orders.

Penfold v Penfold [1980] 144 CLR 311 was provided as an authority for the proposition that although section 117(2) required a finding of justifiable circumstances as an essential preliminary, the Applicant has no special or additional onus.

The court referred to subsection 2A of that section.

Collins v Collins [1985] FLC 19-603 at 79877 was relied on to confirm the discretion conferred by section 117 is a broad one and that the factors set out in section 117(2A) are not to be read in a restrictive way.

The court then considered other authorities.  Hawkins v Rowe 112 FamCAFC 77 discussed the decision of Penfold v Penfold.

The court referred to rule 19.18(1) of the Family Law Rules 2004 as to the method of calculation of costs.

It is a capacity for the court to set a figure.

In Parke v The Estate of the Late A Parke (2016) FLC 93-748, Murphy J. was quoted as saying, “If the court is to fix a sum, it should be fixed broadly having regard to the information before the court”.

In this case, the wife contended she had made an offer of settlement that would justify a departure from the general rule and that would lead to the husband paying her costs of the primary proceedings.

In Robinson v Higginbotham (1991) FLC 92-209 at p.78,417 discussed offers. The discussion was as follows:

“It’s quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.”

In Pennisi v Pennisi (1997) FLC 92-774 with reference to 117 to A(f), the court said:

“Offers must be seen in the context of the case…in the family law jurisdiction it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements or the financial circumstances are so complex that it would be premature to accept an offer.  There are also cases where the contents of the offer are themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account….”

In Browne v Green [2002], the court further discussed the question of offers.

The court, at paragraph 39, said:

“In circumstances where the ultimate monetary payment to the wife was founded to a great extent on the significant revaluation of the husband’s rural interests immediately preceding trial, the significance of the wife’s offer to settlement falls away.

 That case reminds us to be aware of the general rule, the fact that there is no special or additional onus and that the context of the offer is all important.