Anison and Anison (No. 3)
[2018] FamCA 748
•21 September 2018
FAMILY COURT OF AUSTRALIA
| ANISON & ANISON (NO. 3) | [2018] FamCA 748 |
| FAMILY LAW – COSTS – where the husband seeks an order that the wife pay his costs of and incidental to the proceedings on a standard basis – where the husband seeks an order that the wife pay his costs of and incidental to certain aspects of the proceedings, which occurred before the disjoiner of an entity previously joined to the proceedings by the wife, on a standard basis – where the wife seeks an order that the husband pay her costs of and incidental to the proceedings on an indemnity basis, or alternatively, pay her costs as assessed on the standard basis – where the wife seeks an order that the husband pay her costs of and incidental to an interim application by which she sought the provision of funds for the litigation and a spousal maintenance order and a mandatory injunction directing that the husband apply to Centrelink for certain documents. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Limousin v Limousin (Costs) (2008) 38 Fam LR 478 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPLICANT: | Ms Anison |
| RESPONDENT: | Mr Anison |
| FILE NUMBER: | BRC | 1827 | of | 2013 |
| DATE DELIVERED: | 21 September 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Wiltshire Family Law |
| SOLICITOR FOR THE RESPONDENT: | Evans & Co Family Lawyers |
Orders
IT IS ORDERED THAT
The Application in a Case filed 1 December 2015 is dismissed.
The Amended Application in a Case filed 26 March 2018 is dismissed.
The Respondent pay those costs of and incidental to the proceedings incurred by the Applicant after 6 November 2015 on a party/party basis in such amount as is agreed between the parties or, failing agreement, as assessed in accordance with Schedule 3 to the Family Law Rules 2004.
The Respondent pay the Applicant’s costs of and incidental to the Application in a Case filed 4 December 2013 (other than in respect of the claim for the obtaining of records from the Department of Human Resources), including the costs of applying for an order for the costs of and incidental to the same, on a party/party basis in such amount as may be agreed between the parties or, failing agreement, as assessed in accordance with Schedule 3 to the Family Law Rules 2004.
Save as is provided for above, there be no order as to costs.
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 Anison & Anison (No. 3) 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 BRISBANE |
FILE NUMBER: BRC 1827 of 2013
| Ms Anison |
Applicant
And
| Mr Anison |
Respondent
REASONS FOR JUDGMENT
The substantive proceedings between the parties were commenced by Ms Anison on 13 March 2013. Whilst Mr D Anison (Mr Anison’s son) was initially joined to them, an order substituting B Pty Ltd in its capacity as Trustee for the C Trust (the company) for him as the Second Respondent to the proceedings was made by consent by Judge Turner on 5 June 2013.
By Application in a Case filed 10 February 2014, the company applied to be removed from the proceedings and to have the proceedings, insofar as they concerned relief against it, struck out. On 6 November 2015, I struck out those aspects of Ms Anison’s proceedings by which orders were sought against the company and removed it from the proceedings.
At the trial of the matter[1], Ms Anison contended that the orders which were just and equitable were orders which would see her receive a cash payment sufficient to ensure that she received property valued at 50 per cent of the value of the property of the parties to the marriage. She also sought to receive a sum by way of capitalised spousal maintenance from a nominated date and the payment of spousal maintenance in an amount of $500.00 per week (initially sought for a period of two years but, then, for an indefinite period).
[1] On 17 and 18 March 2016.
In contrast, Mr Anison’s position was as particularised in an Amended Response filed 4 November 2013: namely, that each party retain that property currently owned by them. It was advanced on his behalf that orders to give effect to this proposal were just and equitable because Ms Anison had already had the benefit of approximately $133,000.00 from joint funds which she held at separation.
On 28 February 2018, I made final orders that Mr Anison pay to Ms Anison the sum of $233,550.00 and that the parties otherwise retain as their own property absolutely all property then in their respective possessions or under their respective controls. The order made reflected my conclusion that, in the circumstances as I found them to be, it was just and equitable that Ms Anison receive property valued at 22.5 per cent of the total property of the parties as I found it to be and that Mr Anison receive 77.5 per cent of such property.
In real terms, the orders made resulted in Ms Anison receiving property valued at $388,416.37 in total but, because she had already received property valued at $154,866.00, the cash sum Mr Anison is required to pay to her is $233,550.00. The property Mr Anison retained was valued at $1,337,878.62 (inclusive of an amount of $110,893.00 notionally added-back on account of the same having been spent by him on legal fees in the proceedings).
I declined to make an order that Mr Anison pay Ms Anison any amount by way of capitalised spousal maintenance and considered it proper that, until she received the lump sum payment of $233,550.00 from him, Mr Anison continue to pay her $500.00 per week by way of spousal maintenance.
The orders made 28 February 2018 accorded the parties the opportunity to seek orders for costs via the delivery of written submissions. Each availed themselves of that opportunity.
It is uncontroversial to note that, on 12 June 2013, Judge Turner found that the wife had prepared and executed her Initiating Application prior to the parties’ separation and that pre-action procedures had not been taken by her and that, if those procedures had been undertaken, the likely resolution of a number of preliminary issues was high. Based at least in part on such conclusions, her Honour ordered that Ms Anison pay costs in an amount of $6,000.00 to Mr Anison.
It is also uncontroversial that the orders made on 6 November 2015 also included that Mr Anison pay $500.00 per week spousal maintenance to Ms Anison and that he pay, or cause to be paid the amount of $20,000.00 to her solicitors, to be used by them solely to meet her legal costs. He had opposed the making of any order for spousal maintenance and any order for the provision of funds to be used to defray Ms Anison’s legal expenses.
Applicable principles
Section 117(1) of the Family Law Act 1975 (Cth) (the Act) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[2] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.
[2] Section 117(2) Family Law Act (1975) (Cth).
In so far as the issue of the financial circumstances of the parties is concerned, I accept that impecuniosity on the part of a party opposing the making of an order for costs is, of itself, no bar to an order for costs being made where it is otherwise warranted.[3]
[3] See, for example, D & D (Costs) (No 2) (2010) FLC 93-435.
Neither Ms Anison nor Mr Anison were in receipt of Legal Aid. Both are elderly and retired from employment. Neither submits that the proceedings, or any aspect of them the subject of consideration in determining the various applications for costs, were necessitated by a failure of either of them to comply with previous orders of the Court.
Mr Anison’s evidence is that his financial position has diminished significantly since the trial in March 2016. He says that, whilst he had cash at bank in March 2016 of $4,548.00, he now has cash at bank of $14,041.00; whilst he owned shares, valued at $57,328.00, in publicly listed companies, he now owns shares valued at $4,774.00; whilst he previously had $310,435.00 in his self-managed superannuation fund, the balance of that now stands at $47,703.00. That is, on his evidence, his financial position deteriorated by an amount of $308,793.00 between March 2016 and March 2018.
Mr Anison said that this diminution is the consequence of him meeting his own day-to-day living expenses, paying legal fees, meeting the costs of various house repairs and paying $500.00 per week spousal maintenance to Ms Anison. Given that, on my calculation, the total amount of spousal maintenance paid by Mr Anison to Ms Anison during this period[4] was $52,500.00, Mr Anison has spent $256,293.00 on the other matters he specifies, although there is no evidence to determine how much was spent on each of them.
[4] Being from 21 March 2016 until 27 March 2018.
Despite this diminution in financial resources, it is uncontroversial that Mr Anison remains living in the unencumbered property in which the parties previously lived – a property accorded an agreed value of $1,075,000.00 for the purpose of the trial in March 2016 – and that he continues to own a car and his household contents.
Whilst Ms Anison had not provided any updated evidence about her current financial situation, her age (and consequent retirement from paid employment) means it is unlikely to have changed for the better. I also note that the evidence is that Ms Anison has incurred legal fees in excess of $300,000.00. At paragraph [92] of the Reasons for Judgment delivered on 28 February 2018, I noted that she had a deferred fee arrangement with her solicitors, that she owes them in excess of $200,000.00 (exclusive of the fees already paid to them) and remarked that she has the same avenues available to her in terms of costs as any client – namely, to question and/or challenge the reasonableness of the charges. I reiterate such comments.
The quantum of Ms Anison’s legal fees certainly provides the basis for the submission made on Mr Anison’s behalf to the effect that the entirety of the cash payment he is required to make to her (being $233,550.00) seems likely to be received by Ms Anison’s solicitors. Unlike Ms Anison, Mr Anison does not appear to be indebted to his solicitors. As that is the case, the contrast in the financial positions of Mr and Ms Anison is even more significant.
Even with the diminution in his financial resources, it is inescapable that Mr Anison’s financial positon remains significantly superior to that of Ms Anison.
Mr Anison’s application for costs associated with the company’s participation in the proceedings[5]
[5] Application in a Case filed 1 December 2015.
When the company was a party to the proceedings, there was an exchange of pleadings. Mr Anison seeks that Ms Anison pay his costs of and incidental to these and any iteration of the same. He also seeks that she pay his costs of and incidental to the mediation held on 1 November 2013 and 70 per cent (or such other proportion as the Court determines) of his costs of and incidental to the Applications in a Case filed on 4 December 2013 and on 10 February 2014 in such amount as may be fixed, agreed or taxed; and 70 percent cent of his costs of and incidental to the proceedings between 13 June 2013 (when it was transferred to this Court) and 7 November 2015, provided that costs for particular events are not to be claimed for twice. He also seeks that Ms Anison pay his costs of and incidental to the application by which he seeks the above-mentioned costs.
It is accepted that Ms Anison’s financial circumstances are such that it is just that any order for costs made against her is made on a party/party basis.
Ms Anison seeks that Mr Anison’s application is dismissed and that he pay her costs of and incidental to the application.[6]
[6] Response to an Application in a Case filed 11 December 2015.
To the extent that reliance is placed on Ms Anison’s non-compliance with pre-action procedures, I consider that this is an issue that has already been the subject of an adverse costs order.
It is submitted on behalf of Mr Anison that the Court would be persuaded that the circumstances justify the making of an order for costs against Ms Anison in the terms sought above because his position had always been that the proceedings between them should be conducted without reference to the property of the Trust but, because Ms Anison’s position differed, they were unable to resolve their dispute earlier or at the mediation that occurred on 1 November 2013. It was also submitted that Ms Anison’s focus on the inclusion of the Trust assets had the consequence that he was required to spend a considerable amount of money defending her claim against the company, a claim that was ultimately dismissed on 6 November 2015. It was also submitted that, whilst his financial position is superior to that of Ms Anison, the financial disparity between them should not result in him bearing the costs of her decision to join the company to the proceedings and that the disjoinder of the company and the striking out of the claim against it was an identifiable outcome from the outset.
Whilst I accept that the order made on 6 November 2015 was an ‘identifiable outcome’, I am not persuaded that, until it was pronounced, it was an inevitable outcome. I am also not persuaded that Ms Anison commenced and continued her claim against the company with a wilful and ongoing disregard for the prospects of her attempt to include the Trust assets within the property of the parties for the purpose of the property settlement proceeding between them.
Whilst it arguably goes more to the determination of quantum following a conclusion that the circumstances justify the making of an order for costs against Ms Anison, I accept the thrust of the submission made on her behalf about the difficulties in accepting Mr Anison’s contention that “approximately 70 per cent of my legal costs [to the relevant date] were expended in relation to trust asset issues alone”, given that he had no control over the company.
Having taken those matters advanced on behalf of Mr Anison into account, I am not persuaded, in the exercise of the broad discretion accorded to judges at first instance in relation to applications for costs, that the circumstances here justify the making of an order that Ms Anison pay Mr Anison’s costs as sought in the Application in a Case filed 1 December 2015 or at all in respect of the matters the subject of such application. I arrive at such conclusion having particular regard to the matters discussed in paragraph 25 above, the potential significance of Ms Anison’s claim about the Trust assets to the overall property settlement proceedings and that Mr Anison’s financial position is significantly superior to that of Ms Anison.
Mr Anison’s application for costs of and incidental to the proceedings[7] and Ms Anison’s application for costs of and incidental to the proceedings[8]
[7] Amended Application in a Case filed 26 March 2018.
[8] Application in a Case filed 27 March 2018.
Mr Anison seeks an order that Ms Anison pay his costs of and incidental to the proceedings as and from 17 May 2013 (when he filed his Response) until 28 February 2018 (when the final order was made and Reasons for Judgment provided) and that she do so on a party/party basis in such amount as may be agreed or fixed, or as may be assessed in accordance with the Scale in Schedule 3 of the Family Law Rules 2004 (Cth). He also seeks that she pay his costs of and incidental to this application for costs, also on a party/party basis, in such amount as may be agreed or fixed or as assessed in accordance with the Scale in the Rules.
Ms Anison opposes such orders; instead, she seeks an order that Mr Anison pay her costs of and incidental to the proceedings on an indemnity basis, or, alternatively, as assessed in accordance with the Scale in the Rules.
I have already outlined the significant disparity in the financial circumstances of the parties. I do not accept that the fact that the funds payable by Mr Anison to Ms Anison will be used by her to meet her outstanding liability to her solicitors is a matter that persuades of the making of an order that she pay Mr Anison’s costs of and incidental to the proceedings. His financial position is, as I have already noted, still significantly superior to hers.
I do not accept that Mr Anison was prepared to conclude the property settlement proceedings on significantly more advantageous terms than those which Ms Anison received as a result of the order made on 28 February 2018.
Whilst his Response to Initiating Application filed on 17 May 2013 proposed that Ms Anison receive the sum of $200,000.00 and retain the property in her possession and retain the benefit of the $100,000.00 already taken from joint accounts (such that it is said she would have received property with a total value of $342,500.00 if orders were made in those terms), this was not his proposal at trial. It was not his position after 4 November 2013. His position at trial was as outlined in the Amended Response filed 4 November 2013 and was that she should receive no further property other than that which she already had at that time; in fact, she received an order that he pay to her the sum of $233,550.00 (as well as retaining the property in her possession and having had the benefit of $100,000.00 taken by her from joint accounts at separation, such that the total value of the property she received was $388,416.37 – about $40,000.00 more than the 17 May 2013 contention).
I also note that Mr Anison was unsuccessful in his contention at trial that he owed Mr D Anison a significant amount of money. Whilst the quantum of this was first alleged to be $391,000.00, it was later said to be $222,012.00 and Mr D Anison’s evidence in fact permitted of the possibility that, instead, he might owe Mr Anison money.[9]
[9] [2018] FamCA 113 [28] – [39].
Further, whilst it is submitted that Ms Anison could, at any time between 17 May 2013 and 4 November 2013, have agreed to Mr Anison’s proposal, no formal offer to resolve the proceedings was made by him in the terms of the May 2013 Response, either contemporaneously or at any subsequent time in the proceedings. It is also relevant to note that the parties attended at a mediation on 1 November 2013, only three days before Mr Anison decided to amend his response and that he maintained the position outlined in the Amended Response thereafter and contended for the same at trial.
Whilst it is clear that Ms Anison has incurred very significant legal fees in pursuing the matter to trial, she also received an order for the payment of $233,550.00 in circumstances where Mr Anison’s position after 4 November 2013 was that she should receive nothing further; a position advanced well-before the decision to strike out the claim against the company and remove it from the proceedings. Whilst Mr Anison’s position that the company be disjoined from the proceedings succeeded on 6 November 2105, his position thereafter was wholly unsuccessful, for the reasons already explained.
I am not persuaded that Ms Anison’s conduct in relation to the proceedings was such as to constitute, by itself or as part of the overall consideration of the matters mandated by s 117(2A) of the Act, a circumstance justifying the making of an order for costs against her. Whilst many criticisms of Mr Anison’s approach to disclosure were expressed in the submissions made on behalf of Ms Anison, I reach the same conclusion about his conduct in relation to the proceedings, noting the matters discussed at paragraphs [5] to [10] of the Reasons for Judgment published 28 February 2018.
Given the matters discussed above, I am not persuaded that the circumstances justify the making of an order that Ms Anison pay Mr Anison’s costs of and incidental to the proceedings; I am, however, persuaded that the circumstances do justify the making of an order that Mr Anison pay Ms Anison’s costs of and incidental to the proceeding after 6 November 2015.
Authority makes clear that, unless there are exceptional circumstances, an order for costs should be made on a party and party basis.[10] I am not persuaded that the circumstances in this case are exceptional or such as to warrant departing from “the usual course” or to warrant the making of an order for the payment of costs other than on a party and party basis. In arriving at this conclusion I am mindful of the comments of the Full Court in Kohan to the effect that the degree to which the costs, which would be payable if an indemnity costs order is made, depart from the established norm and the actual financial significance of the same may itself be a reason for not ordering costs on an indemnity basis.
Ms Anison’s application for costs of and incidental to the Application in a Case filed 4 December 2013
[10] see D & D Costs (No. 2) (2010) FLC 93-435; Limousin & Limousin (Costs) (2008) 38 Fam LR 478; Yunghanns v Yunghanns (2000) FLC 93-029; In the Marriage of Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J.
Ms Anison sought that Mr Anison pay her costs of and incidental to the Application in a Case filed 4 December 2013, by which she sought the provision of $125,000.00 to meet her legal expenses, the payment of $1,000.00 per week spousal maintenance and an order that Mr Anison be compelled to seek to obtain documents from the Department of Human Resources for a specified period of time.
Mr Anison opposed the making of any order.
The order made required that Mr Anison pay or cause to be paid to Ms Anison’s solicitors’ trust account the sum of $20,000.00 to be used solely for the purpose of meeting her legal costs. It also required Mr Anison to pay Ms Anison $500.00 per week spousal maintenance. No order was made in relation to obtaining the records from the Department of Human Resources
Whilst Ms Anison was not wholly successful in obtaining the relief sought, Mr Anison was wholly unsuccessful in his opposition to the applications for the payment of funds to defer litigation expenses and spousal maintenance. This was not a case in which it was accepted that Ms Anison, then long retired, was incapable of supporting herself and the argument was about the quantum of her needs; rather, it proceeded on the basis that she should be obliged to use relatively limited funds then available to her (being shares then valued at about $42,000.00 and about $18,000.00 cash at bank) to meet her own expenses in circumstances where Mr Anison continued to live in the unencumbered former matrimonial home and had, on his own evidence, a weekly excess of income over expenses in the amount of $623.00 per week.
I consider that, given Mr Anison’s position in relation to Ms Anison’s claim for funds to use to meet legal expenses and his position in relation to her claim for spousal maintenance and noting his vastly superior financial position, the circumstances justify the making of an order that he pay her costs of and incidental to the Application in a Case filed 4 December 2013 (other than in respect of the claim for the obtaining of records from the Department of Human Resources), even where she was not wholly successful in relation to the same. I am also persuaded that the circumstances justify the making of an order that Mr Anison pay Ms Anison’s costs of and incidental to the application for costs, given that she was significantly successful in relation to the same and noting the vast disparity in their financial circumstances.
For the reasons expressed in paragraph 38, I am not persuaded that the order for the payment of the costs of and incidental to the Application in a Case filed 4 December 2013 – limited in the way described above – should be other than on a party/party basis.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 September 2018.
Associate:
Date: 21 September 2018
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