AC and Ors and VC and Anor (Costs)
[2015] FamCAFC 117
•18 June 2015
FAMILY COURT OF AUSTRALIA
| AC AND ORS & VC AND ANOR (COSTS) | [2015] FamCAFC 117 |
| FAMILY LAW – APPEAL – COSTS APPLICATIONS – Where an appeal by third parties against certain orders made in property settlement proceedings between the husband and the wife had been allowed – where the successful third party appellants and the second respondent husband filed costs applications against the first respondent wife on the basis that she was wholly unsuccessful in the appeal and on the basis of the third party appellants’ offer to settle the appeal – where the Full Court found that the offer of settlement would not provide justification for a costs order against the wife in this particular case and that the wife’s lack of success in the appeal could only be accorded limited weight given the reason for the success of the appeal – costs applications dismissed – costs certificates ordered. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANTS/APPLICANTS: | AC |
| LB |
| XYZ Pty Ltd |
| FIRST RESPONDENT: | VC |
| SECOND RESPONDENT: | GC |
| FILE NUMBER: | PTW | 4624 | of | 2006 |
| APPEAL NUMBER: | WA | 35 | of | 2011 |
| DATE DELIVERED: | 18 June 2015 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2011 |
| LOWER COURT MNC: | [2011] FCWA 89 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANTS/APPLICANTS: | Dwyer Durack |
SOLICITOR FOR THE FIRST RESPONDENT: | Elizabeth Wiese & Associates |
| SOLICITOR FOR THE SECOND RESPONDENT: | Gibson & Gibson |
Orders
The application of the appellants that the first respondent wife pay their costs of and incidental to the appeal against the orders made by the
Honourable Justice Crisford on 9 December 2011 (“the appeal”), including the costs of and incidental to the first respondent’s application in an appeal filed
5 January 2012, be dismissed.
The application of the second respondent husband that the first respondent wife pay his costs of and incidental to the appeal be dismissed.
Each party to the appeal bear their own costs.
The Court grants to the appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the appellants in respect of the costs incurred by the appellants in relation to the appeal.
The Court grants to the first respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent wife in respect of the costs incurred by the first respondent wife in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym AC and Ors & VC and Anor (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 35 of 2011
File Number: PTW 4624 of 2006
| AC |
And
| LB |
And
| XYZ Pty Ltd |
Appellants / Applicants
And
| VC |
First Respondent
And
| GC |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Following the delivery of a judgment by this Full Court on 11 April 2013 in which we allowed an appeal against orders with respect to property settlement made on 9 December 2011 by Crisford J in the Family Court of Western Australia, two applications for costs were filed against the first respondent to the appeal. The first such application was filed by the three appellants in the appeal and the second by the second respondent. These reasons for judgment relate to these two costs applications.
In the property settlement proceedings before Crisford J the applicant was the wife, VC, and there were the following five respondents:
·the first respondent being the husband, GC;
·the second respondents being LB and the husband’s mother, AC, as the executors of the estate of the husband’s late father (“the estate”);
·the third respondent being XYZ Pty Ltd, the corporate trustee of a trust known as the XYZ Trust;
·the fourth respondent being LB, (who in addition to being an executor of the estate, was also a director of the corporate trustee); and
·the fifth respondent being the husband’s mother (who, in addition to being an executor of the estate, is a director of the corporate trustee).
The orders made by Crisford J on 9 December 2011 which are relevant for present purposes, in effect, provided:
·that the net value of the assets of the husband and the wife (being in the order of $5,350,000) be divided between them as to 38 per cent to the wife and 62 per cent to the husband (Order 1); and
·that for the purpose of satisfying the wife’s “38% entitlement”, the vesting date of the XYZ trust be brought forward, with the trust fund then being distributed in accordance with the provisions of the trust deed, but subject to a payment of $338,000 to the husband’s mother for the purpose of satisfying her prospective entitlements under the trust (had it not vested) (Orders 2, 3 and 4).
An appeal was filed against Orders 2, 3 and 4 by the following three parties: the husband’s mother; LB; and XYZ Pty Ltd. The wife and the husband were named as the first and second respondents respectively to the appeal. While the wife actively sought in the appeal to maintain Orders 2, 3 and 4, the husband (although represented by counsel at the hearing of the appeal) made no submissions in opposition to, or in support of, the appeal.
In our decision delivered on 11 April 2013, we upheld the appeal against, and set aside, Orders 2, 3 and 4. Our reasons for so doing were essentially that while in the circumstances of this case, there was power to make such orders under Part VIIIAA of the Family Law Act 1975 (Cth) (“the Family Law Act”), the husband’s mother as the controller of, and a general beneficiary of, the XYZ trust, had not been accorded the required procedural fairness in the making of the orders, and thus the orders could not be permitted to stand.
(See in particular [81] to [101] of our reasons of 11 April 2013).
We mention in this context that the Attorney-General for the Commonwealth intervened in the appeal to support the validity of Part VIIIAA of the
Family Law Act.
It is the husband’s mother, LB, and XYZ Pty Ltd, as the successful appellants in the appeal, who have now applied against the first respondent wife for their costs in relation to the appeal.
The husband as the second respondent to the appeal has also filed an application against the wife for his costs in relation to the appeal.
We will in the remainder of these reasons (where convenient) refer to the first respondent wife as “the wife” and to the second respondent husband as
“the husband”.
The husband had initially been a cross-appellant against the trial judge’s orders (although precisely which orders he challenged was not clear). However, at the commencement of the hearing of the appeal consent orders were made allowing the cross-appeal to the limited extent only of providing for the husband and the wife to be equally responsible for any claim by their son in respect of the sale of certain property. The cross-appeal was otherwise dismissed, with it being ordered that there should be no order for costs as between the husband and the wife. The husband was granted a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
The orders sought in relation to costs and the supporting affidavit evidence
Although it will, in due course, be necessary for us to consider separately the costs applications of the appellants and of the husband, it will be convenient at this point to refer in chronological order to those applications and the supporting affidavits and to the response and affidavit of the wife.
In their application (filed on 7 May 2013) the appellants seek the following orders:
1. The [wife] pay the Appellants’ costs of and incidental to the appeal:
(a) In the fixed amount of $135,516; or
(b) As otherwise agreed, and in default of agreement, to be taxed on an indemnity basis.
2. The [wife] pay the costs of any taxation on an indemnity basis in the event that the taxed costs are equal to or greater than $135,516.
3. If no orders as to costs are made between the parties pursuant to section 117 of the Family Law Act 1975, a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) be issued to the Appellants.
In support of the appellants’ application LB swore an affidavit
(on 6 May 2013), in which having explained that the terms “we” and “our” when used in the affidavit are “a reference to all of the appellants”, he went on to state:
…
3. On 5 October 2011 … Justice Crisford provided a copy of her judgment … to counsel for the parties (“the substantive proceedings”).
4. Her Honour advised she intended to make orders for the early vesting of [XYZ] Trust. The effect of this for the husband and the wife in the substantive proceedings was that they would receive 40% of the net assets of the trust.
5. On 15 November 2011, I instructed, on behalf of the second to fifth respondents in the substantive proceedings, our then solicitors,
Kim Wilson & Co (“KWC”) to make a without prejudice offer to the husband and the wife so as to give effect to Her Honours [sic] orders, that is, to provide them with 40% of the net assets of the trust. Exhibit A to my affidavit is a copy of the said correspondence.6. To the best of my recollection no written response to the
15 November 2011 offer was received.7.On 9 December 2011 … Justice Crisford delivered her final judgment and we lodged our Notice of Appeal …
8. On 14 December 2011 I instructed KWC to again write to the husband and the wife to seek a response to the 15 November 2011 offer. To the best of my knowledge, no response was received. Exhibit B to my affidavit is a copy of the said correspondence.
9. On 5 January 2012 the wife filed an Application in an Appeal seeking orders which would provide her funds to defend the Appeal. We opposed the applicant [sic] and we filed a detailed outline of submissions on 8 February 2012. The Application was dismissed on 8 February 2013 [sic] and the costs of each party were reserved to the Full Court.
10. On 8 April 2013, we ceased our instructions to KWC and we engaged Dwyer Durack to represent us.
11. On 11 April 2013 the Full Court of the Family Court of Australia delivered judgement [sic] on the Appeal.
12. On 16 April 2013 we instructed Dwyer Durack to formally withdraw the 15 November 2011 offer. A copy of their correspondence is Exhibit C to my affidavit.
13. The second respondent (the husband), GC, did not support or oppose the Appeal. He indicated he would have been prepared to accept the 15 November 2011 offer if the wife had. Exhibit D to my affidavit is a copy of a letter from the husband’s solicitors, Gibson & Gibson dated 1 May 2013.
14. On 2 May 2013, we instructed Dwyer Durack to write to the first respondent’s solicitor offering to settle this costs application on the basis that the wife pay or cause to be paid $135,516. Exhibit E to my affidavit is a copy of the said correspondence. As at the time of swearing this affidavit, I am informed no response has been received.
…
(Original emphasis)
LB then proceeded in his affidavit to refer to (and to attach copies of) the costs agreements which the appellants had with the solicitors, KWC and Dwyer Durack, and he went on to state that the “total costs incurred by the appellants in relation to the appeal were $271,032.35”. Invoices from KWC and from counsel were attached to LB’s affidavit, and he foreshadowed that details of the costs incurred with Dwyer Durack in preparing the costs application would be attached to the written submissions.
On 9 May 2013 the husband filed an application seeking the following order:
1. The … Wife pay to the … Husband the sum of $50,902.26 or such other amount as this Honourable Court considers just, pursuant to the Family Law Rules 2004 Part 22.10 Rule 22.53 and Part 1.3
Rule 1.10.In his supporting affidavit the husband claimed that he had been advised by his legal representatives that as he “was listed as a party to the appeal, he had no option but to participate in the appeal”. He also provided details of how the amount of $50,902.26 was made up.
On 12 June 2013 the wife filed a response to both applications (supported by an affidavit and a financial statement) in which she sought the following orders:
1. That paragraphs 1 and 2 of the Application in an Appeal filed by the First, Second and Third Appellants on 7 May 2013 be dismissed.
2. That paragraph 1 of the Application in an Appeal filed by the Second Respondent (the husband) on 9 May 2013 be dismissed.
3. The First Respondent (the wife) be granted a Certificate under Section 6 of the Federal Proceedings (Costs) Act 1981(Cth).
(Original emphasis)
In her supporting affidavit the wife stated that she was “presently finding it very difficult to manage financially”, and she explained that her “estimated weekly income is approximately $250”, and that except for some jewellery (valued at $7,785), she has no assets in her own name and that the assets in which she has an interest are jointly owned with the husband. She further explained that she has “a debt of over $2,234,741” to a litigation funding company and that that company has started proceedings against her which she is trying to settle. She also explained that she is indebted to her solicitors
“in excess of $140,000.”
Also in her affidavit the wife responded to paragraphs [5] and [6] of
LB’s affidavit (see earlier at [13]) concerning the appellants’ offer of settlement in the following way:
15. The offer made by the First, Second and Third Appellants in November 2011 following the trial Judge’s decision, was conditional upon the specified beneficiaries relinquishing their interest in the [XYZ] Trust upon the demand of the trustees. The five specified beneficiaries include the three children, [EC], [SC] and [KC] and the husband and myself. The three children would not agree to this condition and I do not know if my husband agreed. It was therefore not possible for me to settle the matter on such terms.
Subsequently written submissions were filed on behalf of the appellants and of the husband in support of their respective applications for costs, and on behalf of the wife in support of her response to those applications.
Consideration of the appellants’ application for the costs of the appeal
In the written submissions filed (19 September 2014) in support of the appellants’ application for costs (either fixed at $135,516 or as “taxed” on an indemnity basis), reliance is placed (at [14](a)) on the wife’s having been “wholly unsuccessful in opposing the appeal”, and on the appellants having made “the 2011 Offer to settle which was not accepted”.
These two matters are, of course, two of the matters contained in s 117(2A) of the Family Law Act (being the matters in s 117(2A)(e) and (f) respectively) to which the court should have regard in determining (under s 117(2)) whether there are circumstances which would justify a departure from the general rule (in s 117(1)) that in proceedings under that Act each party should bear their own costs.
It is also submitted (at [14](b)) on behalf of the appellants that their costs “should be assessed on an indemnity basis from the date the 2011 Offer was made as the [wife’s] failure to accept the offer was unreasonable”, with it being further submitted (at [19]) that the wife’s “financial circumstances, although relevant, cannot prevent an order for costs being made”.
In relation to the first of the s 117(2A) matters relied on by the appellants, being that the wife was “wholly unsuccessful” (s 117(2A) (e)), it is, of course, true that the wife was not successful in opposing the appeal against, and the consequent setting aside of, the orders concerning the vesting date of the trust and the payment to the husband’s mother to satisfy her prospective entitlements under the trust (Orders 2, 3 and 4).
Nevertheless, there is force in the submission, which was made in the written submissions on behalf of the wife (at [43]), to the effect that she had been successful in persuading the Full Court that there was power under Part VIIIAA of the Family Law Act to bring forward the vesting date of a trust. This was indeed so. Moreover as we explained at the outset of these reasons, the reason why the appeal had to succeed was that the trial judge had failed to accord the required procedural fairness to one of the appellants, being the husband’s mother. It is difficult to see why the wife should be held responsible in costs for that failure on the part of the trial judge. Therefore, when considering whether the circumstances would justify an order for costs against the wife in favour of the appellants, only very limited weight can be accorded to the wife’s ultimate lack of success in the appeal.
In relation to the second of the s 117(2A) matters relied on by the appellants, being their “2011 Offer to settle which was not accepted” by the wife
(s 117(2A) (f)), we have earlier set out the affidavit evidence which LB gave about this offer and also the wife’s reply to that evidence, but for convenience we here repeat the relevant passages from those affidavits. It was LB’s evidence that:
…
3. On 5 October 2011 … Justice Crisford provided a copy of her judgment … to counsel for the parties (“the substantive proceedings”).
4.Her Honour advised she intended to make orders for the early vesting of [XYZ] Trust. The effect of this for the husband and the wife in the substantive proceedings was that they would receive 40% of the net assets of the trust.
5. On 15 November 2011, I instructed, on behalf of the second to fifth respondents in the substantive proceedings, our then solicitors,
Kim Wilson & Co (“KWC”) to make a without prejudice offer to the husband and the wife so as to give effect to Her Honours [sic] orders, that is, to provide them with 40% of the net assets of the trust. Exhibit A to my affidavit is a copy of the said correspondence.6. To the best of my recollection no written response to the
15 November 2011 offer was received.…
(Original emphasis)
In replying specifically to [5] and [6] of LB’s affidavit, the wife said:
15. The offer made by the First, Second and Third Appellants in November 2011 following the trial Judge’s decision, was conditional upon the specified beneficiaries relinquishing their interest in the [XYZ] Trust upon the demand of the trustees. The five specified beneficiaries include the three children, [EC], [SC] and [KC] and the husband and myself. The three children would not agree to this condition and I do not know if my husband agreed. It was therefore not possible for me to settle the matter on such terms.
It is necessary at this point to set out the contents of the letter of offer which was dated 15 November 2011 (that is, some three weeks before the appeal was filed) and which was Annexure A to LB’s affidavit. Omitting formal parts, the letter reads:
…
Offer
We refer to paragraph 346 of the judgement [sic] delivered
18 October 2011. Her Honour Justice Crisford has valued the parties’ interest in the [XYZ] Trust as follows (please note, our clients do not agree with this analysis and it may be the subject of the Appeal):1. Assets:
(a) Gross 2/5 interest in [XYZ] Trust E$2,491,756
(b) Credit beneficial loan account of husband $32,979
2. Liabilities:
(a) Debit beneficial loan account of wife $111,243
(b) [XYZ] Mortgage E$860,609
3. Balance: $1,552,883
Please note, the [XYZ] Mortgage debt as at 31 October 2011 is now $914,407.40 ($53,798.40 additional interest).
Our clients make the following offer with the intention that all claims and actions against them in any Court including the Family Court by the Husband and the Wife are discontinued:
1. Our clients will do all acts necessary to:
(a) Distribute capital proceeds of $1,499,084 to the parties (subject to CGT) (being $1,552,883 - $53,798.40 interest);
(b) Write off the debts owing by the husband and the wife jointly (the mortgage) and the wife solely to the [XYZ] Trust. They will also cause the mortgage registered over
[H property] to be discharged at their expense.2. The husband relinquishes any and all claims he has to moneys owing to him by the [XYZ] Trust and the Directors of the trustee company are able to assign the said claims towards the debts owing to the trust.
3. When demanded by the Trustees, the specified beneficiaries relinquish their interest in the [XYZ] Trust.
4. The [XYZ] Trust will then continue in existence in accordance with the trust deed.
5. There be no orders as to costs.
Please advise us as soon as possible if this offer is acceptable. We will then prepare a Minute of Consent Orders.
…
(Original emphasis)
In the written submissions in support of the appellants’ costs application, the five numbered paragraphs and the sentence which proceeded those paragraphs in this letter were set out, with it then being submitted:
44. The 2011 Offer was in very similar terms to that of the judgment of the Trial Judge in that it provided the Cross Appellant and the Respondent with 2/5th of the [XYZ] Trust – the only differences being that the 2011 Offer did not provide for the early vesting of the trust and the sale of the [H property] was not required by the Appellants.
A number of further submissions were then made (at [45] to [50] of the appellants’ written submissions) which can be read as addressing the wife’s contention in [15] of her affidavit that it was not possible for her to settle on the terms offered by the appellants because the children (who were specified beneficiaries of the trust) would not agree to the condition that the specified beneficiaries relinquish “their interest in the XYZ Trust upon the demand of the trustees” and that she did not know if the husband (also a specified beneficiary together with her) “agreed” (presumably with the condition).
So far as the attitude of the husband to the offer was concerned, it will be recalled that LB asserted in [13] of his affidavit, that the husband “indicated he would have been prepared to accept the 15 November 2011 offer if the wife had”. This assertion is repeated in the appellants’ written submissions (at [46]).
The basis of the assertion by the appellants that the husband was prepared to accept the offer contained in the letter of 15 November 2011 is apparently the letter from the husband’s solicitors which was Annexure D to LB’s affidavit. That letter which is addressed to the appellants’ solicitors and which, it is important to note, is only dated 1 May 2013, reads (omitting formal parts):
Further to our recent discussions we confirm that the offer made by your client on 15 November 2011 to resolve this matter by a payment to the parties from the trust was an offer that our client would gladly have accepted but, of course, could not accept in the absence of the Wife’s agreement.
In our view, no weight at all can be placed on that letter from the husband’s solicitors given that it was only written on 1 May 2013 by which time
(as is pointed out in [47] of the wife’s written submissions) the offer had been withdrawn and the appeal judgment delivered.
So far as the wife’s understanding of the husband’s position in relation to the offer is concerned, there might remain a question as to why she did not herself, seek to find out (through their respective solicitors) the husband’s attitude to the offer.
However, it is important to note that the letter of 15 November 2011 from the appellants’ then solicitors was addressed to the husband’s solicitors as well as to the wife’s solicitors. It may well have been in the interests of all concerned in this litigation had both husband and wife adopted a more proactive approach to the third party appellants’ offer to settle made before the appeal was instituted; but however that may be, the wife’s contention that she could not settle without the concurrence of the husband has to be accepted. That the husband’s agreement to the offer of 15 November 2011 was necessary is clear from the terms of the offer which, as we have pointed out, was addressed to both parties’ solicitors, and which contained terms which only the husband could fulfil.
Reference was also made in the appellants’ written submissions (at [48] to [50]) to the position of the three adult children of the husband and wife as specified beneficiaries of the trust, who had been found by the trial judge (at [19] of her reasons) to be “closely aligned” to the wife, and who had chosen not to intervene in the proceedings between their parents. We assume that the purpose of these particular submissions made on behalf of the appellants was simply to establish that the children’s attitude to relinquishing their interests as specified beneficiaries in the trust could not provide a valid reason for the wife’s rejection of the appellants’ offer to settle made in November 2011.
It may well be that the attitude of the children was not a valid reason for the wife not to accept the appellants’ offer to settle in November 2011. However that conclusion cannot detract from our earlier conclusion that the husband’s agreement was necessary for the wife to accept the offer. In the absence of such agreement by him, or at least a satisfactory explanation from the husband as to why he did not provide his agreement at the time when the offer remained open, we do not see that the offer of 15 November 2011 can provide justification for a costs order solely against the wife which is what the appellants seek.
Conclusion in relation to the appellants’ application for the costs of the appeal
Thus, in relation to the two s 117(2A) matters on which the appellants rely in support of their application for the costs of the appeal, we have concluded that the offer of settlement made on 15 November 2011 would not provide a justification for a costs order against the wife, and that the wife’s lack of success in the appeal could only be accorded very limited weight in support of the claim for a costs order against her.
Overall we are not persuaded that a costs order in the appellants’ favour against the wife would be justified on the basis only of the limited weight which can be accorded to the appellants’ success in the appeal. In reaching this conclusion we also take into account that this was a case which had some complexity and importance as is illustrated by the intervention in the appeal of the Commonwealth Attorney-General.
Given the conclusion which we have reached regarding the appellants’ application for the costs of the appeal, it is unnecessary to make any further reference to the appellants’ offer made on 2 May 2013 to settle their costs application on the basis of a payment by the wife of $135,516 and which is referred to in [14] of LB’s affidavit (see [13] of these reasons). It is unnecessary that this further offer be discussed because it is clear from [61] of the appellants’ written submissions that the offer is only relevant in the event that the wife is ordered to pay the appellants’ costs (which she will not be).
The appellants’ application for the costs of the wife’s unsuccessful application for funds to defend the appeal
In [9] of his affidavit LB referred to an application in an appeal filed on 5 January 2012 by the wife against the appellants seeking that they provide her with funds to defend their then pending appeal. The appellants apparently successfully opposed that application, and it was dismissed on 8 February 2012 (by Thackray J), with the costs of each party being reserved to the Full Court.
The written submissions of the appellants in support of their application for the costs of the appeal also refer to this unsuccessful application by the wife in the following paragraphs:
3. Also, the Respondent filed an Application in an Appeal on
5 January 2012 seeking orders which would provide her funds to defend the Appeal. The application was dismissed on 8 February 2012 and the costs of each party were reserved to the Full Court.4. Accordingly, in the event the Appellants are not successful in obtaining costs pursuant to their Application in an Appeal, then the Appellants seek an order that the Respondent pay within 21 days the Appellants’ costs of and incidental to the Respondent’s Application in an Appeal filed 5 January 2012 as agreed, and in default of agreement, to be taxed.
However, the submissions contain no further reference to this application
(if it can be described as such) by the appellants for their costs of the wife’s application in an appeal dismissed on 8 February 2012, let alone any argument as to why the general rule that each party pay their own costs of proceedings under the Family Law Act should be departed from in this instance.
In these circumstances we consider that the only course open to us is to regard the costs of the unsuccessful application by the wife for funds to defend the appeal, as part of the costs of the appeal (as indeed is a common approach to the somewhat analogous applications for the provisions of funds by way of security for the costs of an appeal). We have already decided that as between the appellants and the wife, each of those parties should bear their own costs of the appeal.
Consideration of the husband’s application for the costs of the appeal
It emerges from the following paragraphs of the written submissions on behalf of the husband (filed on 1 October 2014), that his claim that the wife should pay his costs in relation to the appeal is also based on the wife’s being
“wholly unsuccessful in her opposition to the Appeal” and on the appellants’ offer to settle made in November 2011:
9. The [wife] was wholly unsuccessful in her opposition to the Appeal and did not seek to cross-appeal.
10. The [wife], despite not filing a cross-appeal, did actively contest the Appeal.
11. The Cross Appellant [husband], whilst represented by Senior Counsel … at the Appeal did not make submissions in support of or in opposition to the Appeal.
12. On 15 November 2011 the Appellants made an offer to settle which was not accepted by the [wife].
13. The terms of the offer were similar in all material respects to the Trial Judge’s order save that they did not provide for the early vesting of the trust (see the Appellant’s submissions as to the terms of the offer at paragraph 43).
14. The Cross Appellant [husband’s] position was that he would have settled on the terms of the offer made by the Appellants.
We have already in the context of our consideration of the appellants’ application for the costs of the appeal, explained how only limited weight can be attached to the wife’s lack of success in the appeal for purposes of an application against her for the costs of the appeal. It is unnecessary to repeat that explanation here.
Also in that earlier context, we have concluded that the appellants’ offer of settlement made in November 2011 could not be relied upon in support of an application that the wife pay the costs of the appeal because she could not accept that offer without the agreement of the husband (which was not forthcoming when the offer was open for acceptance).
The husband now contends in his written submissions (at [14]) that “he would have settled on the terms of the offer made by the appellant”. No weight can possibly be given to this statement by the husband (even if had been made in proper evidentiary form) given that it was made so long after the time when the offer was capable of being accepted.
Thus, again the appellants’ offer of settlement could not provide justification for an order that the wife pay the husband’s costs of the appeal. Also for the reasons which we gave earlier, the limited weight which can be accorded to the wife’s lack of success in the appeal could not in the circumstances of this case support a costs order against the wife in favour of the husband.
There is also a further reason why we do not consider that an order could be made against the wife in the husband’s favour in relation to the costs of the appeal. That further reason relates to the husband’s evidence in his affidavit in support of his application for costs, that he had been advised that because he “was listed as a party to the appeal, he had no option but to participate in the appeal”.
We do not agree that because the husband was named as a party to the appeal, that it was necessary in circumstances where he neither supported nor opposed the appeal, for him to be represented throughout the hearing of the appeal
(and particularly by Senior Counsel). It is the more usual course where a person named as a party to the appeal does not wish to be heard on the appeal for that position to be conveyed to the Court by means either of a letter to the Appeal Registrar in advance of the hearing of the appeal, or by a brief appearance by a legal practitioner for that party at the commencement of the hearing of the appeal who would explain that party’s position on the appeal and then seek to be excused from further attendance before the Court. We accept that the second mentioned approach would have been necessary in the present case because of the settlement of the husband’s cross appeal and the need for consent orders to be made.
Accordingly, we will dismiss the husband’s application that the wife pay his costs of the appeal.
Having regard to our conclusions in relation to the costs applications of both the appellants and the husband, we will also order that each party to the appeal bear their own costs.
Applications for costs certificates
In their application (filed on 7 May 2013) the appellants sought that if no order for costs was made as between the parties to the appeal, then they should receive a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
Given that we will order that each party to the appeal should pay their own costs, and given the basis on which the appeal succeeded (as explained in [5] of these reasons), we consider it appropriate to grant the appellants a cost certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
In her response (filed on 12 June 2013) the wife also sought a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). It is similarly appropriate that she receive such a certificate.
We note that the husband has already been granted a cost certificate under
s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) as the cross appellant against Crisford J’s orders of 9 December 2011. Appropriately, he has not sought a costs certificate as a respondent to the appellants’ appeal.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 18 June 2015.
Associate:
Date: 18 June 2015