Alvin & Kallen & Anor

[2013] FamCA 1003

FAMILY COURT OF AUSTRALIA

ALVIN & KALLEN AND ANOR [2013] FamCA 1003

FAMILY LAW – COSTS – Where parties sought costs in relation to a stay application – Where the application was wholly unsuccessful – Where there are justifying circumstances – Where costs are ordered.

Family Law Act 1975 (Cth) s 117(2) Family Law Rules 2004 (Cth)
APPLICANT:	Mr Alvin

RESPONDENT: Ms Kallen

INTERVENOR: Mr DD

FILE NUMBER: BRC 11120 of 2009

DATE DELIVERED: 19 December 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: Written Submissions received on 28 and 31 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Michelle Porcheron Lawyers

SOLICITOR FOR THE RESPONDENT: Johnsons Solicitors and Attorneys

SOLICITOR FOR THE INTERVENOR: B Law Firm

Orders

1. That the Wife pay the Husband’s costs of and incidental to the application for a stay filed 18 October 2013 on a party and party basis as agreed or as assessed by a Registrar pursuant to the Rules.

2. That within twenty-eight (28) days of the date hereof the Wife pay the Intervenor’s costs of and incidental to the application for a stay filed 18 October 2013 fixed in the sum of $2,796.73.

IT IS NOTED that publication of this judgment by this Court under the pseudonym & Alvin & Kallen and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11120 of 2009

Ms Kallen

Applicant

And

Mr Alvin

Respondent

REASONS FOR JUDGMENT

1. On 24 October 2013, I dismissed the Wife’s application for a stay of one paragraph of final property adjustment orders that I made in proceedings between the parties on 30 August 2013. The Wife had sought the stay pending the determination of an appeal against my orders that she has commenced.

2. The Husband and the Intervenor applied for orders that their costs in the application for the stay be paid by the Wife. I made directions for the filing of written submissions by the parties in those applications for costs.

3. Written submissions were filed on behalf of the Husband and also on behalf of the Intervenor. No written submissions were filed on behalf of the Wife. I do not take that as giving the Court fiat to make costs orders by default.

4. Pursuant to s 117(2) of the FLA the Court is given a discretion to make such costs orders as it considers just, if satisfied that there are circumstances that justify doing so.

5. For the Husband, the fact that the Wife’s application for a stay was wholly unsuccessful is said to be the primary factor justifying a costs order in his favour.

6. Further, it is submitted that relevant justifying factors also arise from the reasons why I determined to dismiss the application for a stay.

7. I accept the submissions made on behalf of the Husband. The Wife’s application was wholly unsuccessful. It failed as she did not persuade me that her appeal against my orders had reasonable prospects of success and also because she did not persuade me that failure to grant the stay would likely render a successful appeal nugatory.

8. The Wife’s financial circumstances, having regard to the property adjustment orders I made, is vastly superior to the Husband’s financial circumstances.

9. I consider the circumstances justify an order for costs against the Wife in favour of the Husband and will make an order that the Wife pay the Husband’s costs of and incidental to the application for a stay filed 18 October 2013 on a party and party basis as agreed or as assessed by a Registrar pursuant to the Rules.

10. For all the same reasons already discussed above, save that the financial circumstances of the Intervenor are not considered to be relevant, as he is a solicitor who has obtained the benefit of orders that fees and interest owed to him by the Husband be paid, I consider the circumstances justify an order for costs against the Wife in favour of the Intervenor.

11. The Intervenor itemised the costs he seeks in paragraph 36 of his written submissions. They are said to be calculated on “the standard basis” by reference to the Schedule to the Family Law Rules. Five separate amounts are set out for the work the Intervenor said he did in responding to the Wife’s stay application. The amounts total $2,796.73. The Intervenor seeks an order that the Wife pay his costs of the application filed 18 October, 2013 fixed in the sum of $2,796.73. In the circumstances, I consider that to be a reasonable sum for the work the Intervening solicitor did. I will make the order.

12. The Intervenor seeks an order that the said sum be paid within fourteen days. I consider, given the time of the year that I am making these orders, that the Wife should have twenty eight days within which to pay the said sum. I will so order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 December 2013.

Associate:

Date:  19 December 2013