Anison & Anison
[2019] FamCAFC 108
•21 June 2019
FAMILY COURT OF AUSTRALIA
| ANISON & ANISON | [2019] FamCAFC 108 |
| FAMILY LAW – APPEAL – COSTS – Where the husband appeals from orders made for him to pay the wife’s costs of and incidental to property proceedings finalised in February 2018 – Where the husband was ordered to pay the wife the sum of $233,550 by way of final property settlement – Where each party sought costs orders against the other, and each opposed the applications of the other – Where the trial judge was called upon to determine costs applications with respect to three distinct subject matters – Where the trial judge made orders that the husband pay the wife’s costs on a party and party basis from 6 November 2015 – Where the trial judge concluded the husband had been “wholly unsuccessful” – Meaning of “wholly unsuccessful” – Where the trial judge exercised the discretion to make the costs orders by incorrectly interpreting and applying s 117(2A)(e) of the Family Law Act 1975 (Cth) – Appeal allowed in part. FAMILY LAW – APPEAL – RE-EXERCISE – Where both parties, in the event the appeal succeeded, sought the Full Court re-exercise the discretion – Where neither party sought to place any further evidence before the Court and were content to rely upon the material already filed before the trial judge – Where the husband put the wife to the expense of incurring the costs of an application in a case when she had an obviously undeniable claim for spousal maintenance and litigation funding – Where the husband ought be ordered to pay the wife’s costs of that application – Where there otherwise ought be no order as to costs in relation to the substantive proceedings – Where both parties granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal on the basis that it succeeded on an error of law. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A), Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Anison & Anison [2015] FamCA 973 Anison & Anison [2018] FamCA 113 Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Browne v Green (2002) FLC 93-115; [2002] FamCA 791 Harris and Harris (1991) FLC 92-254; [1991] FamCA 124 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 |
| APPELLANT: | Mr Anison |
| RESPONDENT: | Ms Anison |
| FILE NUMBER: | BRC | 1827 | of | 2013 |
| APPEAL NUMBER: | NOA | 93 | of | 2018 |
| DATE DELIVERED: | 21 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Aldridge, Kent & Austin JJ |
| HEARING DATE: | 20 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2018 |
| LOWER COURT MNC: | [2018] FamCA 748 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Evans Brandon Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr S. Williams QC |
| SOLICITOR FOR THE RESPONDENT: | Wiltshire Family Law |
Orders
That the appeal be allowed in part.
That Order 3 of the orders made by the trial judge on 21 September 2018 be set aside.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
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 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 93 of 2018
File Number: BRC 1827 of 2013
| Mr Anison |
Appellant
And
| Ms Anison |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
Property settlement and spousal maintenance proceedings[1] between Mr Anison (“the husband”) and Ms Anison (“the wife”) were finalised by orders made by the trial judge on 28 February 2018.
[1] Pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
The trial judge found the parties’ combined property interests, inclusive of superannuation, to be worth $1,726,295. Her Honour assessed the parties’ contributions-based entitlements in the proportions of 87.5 percent/12.5 percent in favour of the husband. After applying relevant s 75(2) considerations her Honour made a 10 percent adjustment in the wife’s favour resulting in the wife being entitled to 22.5 percent. To achieve that outcome, allowing for property the wife already held or had the benefit of, the husband was ordered to pay the wife the sum of $233,550. Her Honour dismissed the wife’s claims for capitalised spousal maintenance and for indefinite periodic spousal maintenance.
That outcome of the substantive proceedings is informed by the following brief summary of central facts extracted from the substantive reasons for judgment of the trial judge. As at judgment in February 2018 the husband was aged 84 years and the wife 80 years. Both parties were already retired from employment when their cohabitation commenced in the year 2000, at which time the husband was aged 66 years and the wife 62 years. The parties finally separated in early 2013 after a cohabitation of about 13 years.
At the commencement of cohabitation, the wife had property worth a total of $88,000. The trial judge found that, shortly prior to the commencement of cohabitation, the husband had inherited property worth somewhere between “just over $8 million” and $9.6 million. The trial judge found that the husband provided about $6 million in total by way of gifts to his adult children and in respect of $4 million to establish a unit trust controlled by his son (“the Trust”). It is unnecessary to detail the use of the husband’s capital beyond noting the trial judge’s finding that:[2]
It is clear that the husband provided the overwhelming majority of the financial resources used to support the parties financially during their approximately 13 year cohabitation and marriage. It is also clear that only funds inherited by him were used to acquire the home in which the parties lived.
[2]Anison & Anison [2018] FamCA 113 at [69].
Notably, this significant financial disparity between the parties as to their respective financial circumstances at the outset, a matter of some focus in the subject costs determinations, pre-existed the commencement of the parties’ relationship and endured.
The property settlement orders made by the trial judge on 28 February 2018 included provision for each party to seek orders for costs by the delivery of written submissions. Each party sought costs orders against the other, and each opposed the applications of the other, via such written submissions.
On 21 September 2018 the trial judge made orders, and delivered reasons for judgment for those orders (“the costs reasons”), determining the parties’ competing costs applications. In summary, her Honour:
a)Dismissed the husband’s application for the wife to pay his costs associated with the involvement of a third party corporate trustee of a trust, joined by the wife as a party to the proceedings, but subsequently removed as a party in a contested application determined in favour of the trustee and the husband on 6 November 2015 (Order 1);
b)Dismissed the husband’s application for an order that the wife pay his costs of the proceedings from 17 May 2013 (the date he filed his initial Response) until 28 February 2018 (the date of final judgment) (Order 2);
c)Ordered the husband to pay the wife’s party and party costs of and incidental to the proceedings from 6 November 2015 (Order 3);
d)Ordered the husband to pay the wife’s party and party costs of her interim application for, inter alia, litigation funding and interim spouse maintenance determined on 6 November 2015 (Order 4); and
e)Otherwise ordered that there be no order for costs (Order 5).
By Notice of Appeal filed on 17 October 2018 the husband appeals from all of those orders. However, on the hearing of the appeal, counsel for the husband confirmed that, recognising the wife’s very limited financial circumstances, in the event that the appeal was successful, the husband would not press for any order for costs to be made in the husband’s favour with respect to the proceedings at first instance or any aspect of the proceedings. Thus, in practical terms, the focus of the appeal are the orders for the husband to pay costs to the wife (Orders 3 and 4) referred to earlier.
Nature of the discretion to award costs
It is well-settled that the Full Court should be reluctant to interfere with the exercise of discretion by a trial judge to make costs orders. In Harris and Harris,[3] the Full Court (Ellis, Strauss & Lindenmayer JJ) stated at 78,711:
… Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.
[3] (1991) FLC 92-254 (“Harris”).
In Browne v Green,[4] the Full Court (Kay, Coleman & Warnick JJ) observed of that statement in Harris that it was “perhaps stating the position at its highest”.[5] In Browne the Full Court reiterated the well-known bases upon which an appellate court can legitimately interfere with a discretion.[6]
[4] (2002) FLC 93-115 (“Browne”).
[5]Browne at 89,162.
[6]Browne at 89,161.
In Robinson and Higginbotham[7] Nygh J (with whom Simpson & Smithers JJ agreed) said, at 78,417:
As counsel for the husband rightly submitted, this Court should be very reluctant indeed to interfere with the exercise of discretion in respect of costs. Indeed, it may be fair to say that generally speaking this Court has been more reluctant to interfere in such determinations than it has even in respect of the exercise of discretion pursuant to section 79 [of the Act]. But that does not mean that this Court should never interfere with the exercise of that discretion.
The same principles hold true and if the result is plainly unjust or if the discretion was exercised on wrong principles then this Court must interfere…
(Emphasis added)
[7] (1991) FLC 92-209 (“Robinson and Higginbotham”).
Husband’s challenges on appeal
Whilst the husband advances 13 discrete grounds of appeal and some 14 sub-grounds, a central challenge common to several of the husband’s grounds is that the trial judge was wrong to conclude that the husband was “wholly unsuccessful in the proceedings” within the meaning of paragraph (e) of s 117(2A) of the Act. That is, the husband contends that her Honour exercised the discretion to make the challenged costs orders on wrong principle, relying upon the conclusion that the husband was “wholly unsuccessful” within the meaning of paragraph (e).
In my judgment, for the reasons which follow, there is substance in the husband’s grounds resting upon this central contention. Establishment of this central contention renders the conclusion that the appeal must be allowed.
Moreover, disposition of the appeal on this basis renders it unnecessary to deal with each of the other multiple challenges advanced by the husband given also that the husband no longer pursues any order for costs being made in his favour.
Approach of the trial judge
The trial judge was called upon to determine costs applications with respect to three distinct subject matters.
The first matter relates to the wife’s joinder and involvement of third parties in the proceedings. The wife initiated the proceedings in the Federal Circuit Court of Australia (“the FCC”) on 13 March 2013.
By way of background, the wife initially sought to include the husband’s son as a Second Respondent. However, by order dated 5 June 2013, a judge in the FCC substituted the corporate trustee of the Trust as the Second Respondent (“the company”). On 10 February 2014, the company filed an Application in a Case to be removed from the proceedings. On 6 November 2015, the trial judge acceded to that application and struck out all aspects of the wife’s proceedings which sought relief from the company.[8] Essentially, the wife sought to establish that the trust of which the company was the trustee, was a sham and that, therefore, the property held within it should be included in the parties’ property pool. The trial judge disagreed. No appeal was filed from those orders.
[8]Anison & Anison [2015] FamCA 973.
The husband sought the costs of pleadings being exchanged and a mediation on 1 November 2013 when the company was a party to the proceedings. The trial judge found that while the result was “identifiable”, it was not “inevitable” (costs reasons at [25]). Similarly, her Honour found that the wife had not “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” (costs reasons at [25]). Coupled with the husband’s superior financial position, the trial judge dismissed that application for costs.
Nothing needs to be revisited on this appeal about that outcome given that the husband no longer presses in the appeal obtaining any order for costs as against the wife. However, the significance of this is the date of 6 November 2015. As will be further discussed, that date is fixed upon by the trial judge as the date from which the trial judge describes the husband as being “wholly unsuccessful” thereafter. At [35] of the costs reasons the trial judge states:
… Whilst [the husband’s] position that the company be disjoined from the proceedings succeeded on 6 November 2015, his position thereafter was wholly unsuccessful, for the reasons already explained.
That reference to reasons “already explained” would seem to be a reference to what appears at [32] of the costs reasons as follows:
Whilst his Response to Initiating Application filed on 17 May 2013 proposed that [the wife] 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).
(Emphasis as per the original)
As can be seen, the trial judge fixed upon 6 November 2015 as the date from which the husband was ordered to pay the wife’s costs. This aspect will be further referred to.
The second matter, also dealt with by orders made on 6 November 2015, is the wife’s application for litigation funding and interim spousal maintenance.
By Application in a Case filed on 4 December 2013 the wife sought, inter alia, that:
a)The husband pay $125,000 to meet her legal expenses;
b)The husband pay $1,000 per week in spousal maintenance; and
c)The husband be compelled to obtain certain documentation from the Government.
The husband opposed those orders. Ultimately, the trial judge ordered, on 6 November 2015, that the husband pay $20,000 towards the wife’s legal fees and pay $500 per week in spousal maintenance. Despite the wife’s application for ongoing spousal maintenance being dismissed in the substantive judgment handed down on 28 February 2018, the husband was ordered to continue paying $500 per week (Order 7) until he had paid her the property settlement sum, being $233,550 (Order 2).[9] More specifically, he paid $52,500 in spousal maintenance between the trial in March 2016 and February 2018 (costs reasons at [15]).
[9] Order 7 being discharged by consent order dated 21 September 2018.
At [42] of the costs reasons the trial judge stated:
Whilst [the wife] was not wholly successful in obtaining the relief sought, [the husband] was wholly unsuccessful in his opposition to the applications for the payment of funds to defer litigation expenses and spousal maintenance…
The third matter is the substantive proceedings for property settlement and spousal maintenance.
At trial, the wife sought orders that she receive 50 percent of the property pool and $500 per week in spousal maintenance indefinitely. The husband’s position changed throughout the proceedings. In his Response filed on 17 May 2013, he sought orders that:
a)He pay the wife $200,000; and
b)Each party otherwise retain all property in their possession, including the wife retaining $100,000 taken from joint accounts.
That position was varied by the husband’s Amended Response filed on 4 November 2013 to seek orders that each party retain the property owned by them with no payment by him to the wife. He argued that this was just and equitable as the wife had the benefit of $133,000 from joint funds which she held at separation. It was accepted the wife had enjoyed the benefit of those funds.
Ultimately, after a two day trial on 17-18 March 2016, the trial judge ordered that:
a)The husband pay the wife the sum of $233,550; and
b)That each party otherwise retain the property in their possession.
This reflected a 77.5/22.5 percent division of the property pool in favour of the husband.
The husband sought the wife pay his costs from 17 May 2013 (when he filed his Response) to 28 February 2018 (when the final property orders were made) as well as his costs of the costs application itself on a party and party basis. The wife opposed those orders and sought that the husband pay her costs on an indemnity basis or, alternatively, a party/party basis.
The trial judge again reiterated the “significant disparity” in the parties’ financial situations (costs reasons at [30]) and rejected the argument that the husband was “prepared to conclude the property settlement proceedings on significantly more advantageous terms than those which [the wife] received” (costs reasons at [31]). Her Honour acknowledged that the husband’s first Response was more advantageous for the wife, her Honour stated that “this was not [the husband’s] proposal at trial” (costs reasons at [32]) (emphasis as per the original). It was only his position until 4 November 2013. Similarly, her Honour rejected the proposition that the wife could have agreed to the husband’s position stating that “no formal offer … was made by [the husband] in the terms of the May 2013 Response” (costs reasons at [34]).
Further, the husband was unsuccessful at trial in his contention that he owed his son considerable sums of money; indeed her Honour found that the son may have owed the husband money (referred to in the costs reasons at [33]). Her Honour dismissed the husband’s application for costs.
As for the wife’s application, her Honour noted that she received a cash payment of $233,550 when the husband sought she receive no such payment. The husband’s position, after 4 November 2013 and after the removal of the company on 6 November 2015, was described by her Honour as “wholly unsuccessful” (costs reasons at [35]). Her Honour found that the circumstances justified the making of a costs order in the wife’s favour after 6 November 2015, though not on an indemnity basis (costs reasons at [36]-[38]).
It is clear from a reading of the costs reasons for judgment as a whole, particularly at [32] and following including the quotes from [35] and what appears at [42] to which reference has been made, that the trial judge focused upon what her Honour described as the husband being “wholly unsuccessful” as a foundation for the costs orders made in the wife’s favour. Read in context, her Honour’s references to the husband being “wholly unsuccessful” are plainly references by the trial judge to paragraph (e) of s 117(2A).
Proper interpretation of s 117(2A)(e)
As it appears in the section paragraph (e) provides as follows:
117 Costs
…
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
…
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
…
It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed. In the oft-cited authority in this area of Robinson and Higginbotham earlier referred to, Nygh J (with whom Simpson & Smithers JJ agreed) said:[10]
Her Honour then makes a reference to the question of which party was wholly successful but, of course, as counsel for the wife rightly submitted, paragraph (e) deals with a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.
[10]Robinson and Higginbotham at 78,417.
More recently, in Bant & Clayton (Costs) (“Bant”)[11] the Full Court (May, Strickland & Tree JJ) stated:
[11] (2016) 56 Fam LR 31.
(e) The mother was wholly unsuccessful in the proceedings.
21.The father submits that by filing a Notice of Discontinuance the mother has been wholly unsuccessful. The mother says that her application was never heard or determined, and thus it was not wholly unsuccessful.
22.There is an element of truth in both submissions, but it is apparent to us that this paragraph does not apply to the facts of this case; it is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful.
23.Thus, this paragraph does not provide a circumstance justifying an order for costs.
Those paragraphs of Bant were subsequently cited with approval by the Full Court in Parke & The Estate of the Late A Parke[12] (by May & Ryan JJ at [17] and by Murphy J at [78]).
[12] (2016) FLC 93-748.
In the course of argument Mr Williams of Queen’s Counsel for the wife drew our attention to two unreported first instance judgments of trial judges who, like the trial judge here, apparently adopted a different interpretation of paragraph (e). However, counsel confirmed that those judges, like the trial judge here, made no reference to those Full Court authorities to which I have referred and which are binding upon trial judges. Suffice to say that like the trial judge here those other judgments express wrong principle.
I am satisfied that by adopting an incorrect interpretation of paragraph (e) and by applying that interpretation, the trial judge acted on wrong principle in the exercise of her discretion.
That the husband cannot be characterised as being “wholly unsuccessful in the proceedings” on the proper interpretation of the paragraph would seem obvious. Moreover, the following is relevant to an assessment of relative success of each party if that consideration were undertaken by reference to paragraph (g) of the section – “such other matters as the court considers relevant.”
In the substantive property and spousal maintenance proceedings the husband had to meet a claim by the wife for 50 percent of the property pool, plus capitalised maintenance, plus an order for weekly spousal maintenance of $500 for an indefinite period. In the result, the husband contained the wife’s claim to 22.5 percent division of property interests and the wife’s respective claims for spousal maintenance were dismissed. Given the husband’s relative success, and apparently greater success than the wife (comparing each party’s starting positions or aims with the ultimate outcome) the husband plainly has not been “wholly unsuccessful in the proceedings”.
I interpolate here that neither party made an operative offer of settlement at any stage. The husband did, however, in his initial Response filed on 17 May 2013 propose to pay the wife a lump sum of $200,000 with the wife otherwise retaining the funds she had accessed at separation. Whilst that did not remain the husband’s position – he amended his Response in November 2013 – it is relevant to the absence of any offer from the wife at any time during the currency of the litigation. Whilst her Honour dealt with this aspect at [32] of the costs reasons, there finding that the trial outcome was superior by “about $40,000.00 more than the 17 May 2013 contention” (of the husband) – that holds true only if one ignores the time-value of money and the very substantial costs incurred by the wife to achieve the latter outcome. At the hearing of the appeal, we were told that the wife has paid in excess of $300,000 by way of legal fees with an amount of $113,000 remaining owing which we were told is not being pursued.
It would seem obvious that the wife would be in a far better position had she embraced the husband’s initial Response or at least made an offer in similar terms at any stage over the years that this litigation proceeded. These matters aside, whilst it was contended that the wife could not properly inform herself as to her position in the period between May and November 2013 when the relevant Response was extant, the wife did not at any stage thereafter make any offer.
The point of emphasis is that whilst it is one thing to focus upon the absence of an offer being made by the husband, as her Honour did in this context (costs reasons at [34]), there is nothing to suggest, absent any relevant offer from the wife, that the husband ever had any alternative but to resist a claim for 50 percent adjustment on property interests plus the spousal maintenance claims advanced by the wife.
With respect to the trial judge, the same incorrect interpretation and application of paragraph (e) of s 117(2A) infects the trial judge’s discretion to order the husband to pay the wife’s costs with respect to her Application in a Case filed on 4 December 2013 by which she sought the provision of litigation funding and spousal maintenance. So much is clear from the opening sentence of [42] of the costs reasons earlier quoted, in which the trial judge refers to the wife as being “not wholly successful” in obtaining the relief she sought but more particularly describing the husband as being “wholly unsuccessful in his opposition”.
The wife sought litigation funding at $125,000; an order for $20,000 only was made. The wife sought the payment of $1,000 per week by way of spousal maintenance and achieved an order for $500 per week. By the same process of reasoning as earlier referred to, the husband cannot be described as being “wholly unsuccessful” within the meaning of paragraph (e) in these circumstances.
Re-exercise of discretion
Both parties sought that this Court re-exercise the discretion in the event that the appeal was to be upheld.
Neither party sought to place any further evidence before the Court for the purpose of the re-exercise of discretion and were content to rely upon the material already filed before the trial judge. Moreover, neither party sought to supplement their submissions by further submissions beyond those made in the appeal.
Section 117(1) of the Act provides for the general rule that in proceedings under the Act each party is to bear their own costs. Section 117(2) of the Act provides that the Court may depart from this general rule and make an order for costs if it is satisfied of justifying circumstances, and the considerations the Court has regard to are set out in s 117(2A) of the Act.
Whilst the husband contends, with some justification, that his financial position is not as robust as it was as at the time of the substantive trial before the trial judge in 2016, notwithstanding any deterioration in his financial circumstances, he can be seen to be in a very significantly superior financial position to that of the wife.
As earlier noted the wife, we were told from the bar table, has paid the extraordinary amount of in excess of $300,000 for costs of this litigation. She is said to owe a further $113,000, albeit that it is said payment of this will not be pursued.
How a total sum in excess of $400,000 could have been incurred in legal costs for a matter such as this, for a woman of the wife’s age and circumstances, is troubling indeed.
It is convenient to deal firstly with the question of costs concerning the wife’s Application in a Case filed on 4 December 2013 for litigation funding and spouse maintenance.
The trial judge observed of this application at [42] of the costs reasons:
… This was not a case in which it was accepted that [the wife], 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 [the husband] 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.
The obvious point of emphasis made by the trial judge is that presented with an obviously undeniable claim for spousal maintenance, the husband put the wife to the expense of incurring the costs of an application and contesting that application.
The wife’s Financial Statement filed on 4 December 2013 set out her weekly income and expenses showing a deficiency of $607. Her income was largely represented by a Seniors Pension which was to be disregarded for the purposes of considering the wife’s claim for spousal maintenance (s 75(3)).
In her updated Financial Statement filed on 23 April 2014 the wife deposed to a $589 weekly deficiency and again her income was largely represented by a Seniors Pension.
Plainly, the wife, at all material times, had an overwhelming and undeniable claim for spousal maintenance and, at all material times, on the documents filed, the husband had the capacity to meet spousal maintenance for the wife.
Given his superior financial position throughout, I consider that there exists justifying circumstances for the husband to be responsible for the costs incurred by the wife with respect to her spousal maintenance claim.
Likewise, that is so with respect to the claim for litigation funding. Whilst the wife pursued a much more substantial claim, for $125,000, than was ultimately allowed ($20,000), the fact is that the wife was put to the expense of a contested application to secure the funding she obtained.
The wife did not succeed in respect of the claim for the husband to obtain records from the Government.
In my view, on a re-exercise of discretion, I would not disturb Order 4 made by the trial judge. That is, I consider it is an appropriate order for costs that the husband pay the wife’s costs in the terms of that order.
As to the substantive proceedings, I need not repeat what I have already said. It can be seen that each party enjoyed some success on some aspects. For example, the wife succeeded on the issue with respect to whether or not the husband owed a substantial amount to his son. I have already discussed the success the husband can be seen to have enjoyed by reference to the overall outcome of the case given the wife’s claim.
It is also the case that the wife did not succeed with respect to her claim for joinder of third parties and the husband obviously incurred legal costs in that respect.
For reasons not readily apparent, neither party throughout the lengthy period that the substantive litigation was on foot, made any competitive offer by reference to the outcome determined by the trial judge.
Having reviewed the written submissions made to the trial judge, I am not satisfied that there are, on balance, justifying circumstances for either party to have the benefit of a costs order against the other with respect to the substantive proceedings.
Orders
I would order that the appeal be allowed in part and that Order 3 of the orders made by the trial judge on 21 September 2018 be set aside.
In the event that the appeal was upheld, the husband did not pursue any order for costs against the wife. He sought a certificate pursuant to the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) as did the wife. Given that the appeal has succeeded by reason of an error of law I would grant each party such certificates in the usual terms.
AUSTIN J
I agree with the orders proposed and the reasons given by Kent J.
ALDRIDGE J
I also agree.
The orders of the Court are:
(1)That the appeal be allowed in part.
(2)That Order 3 of the orders made by the trial judge on 21 September 2018 be set aside.
(3)The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
(4)The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Aldridge, Kent & Austin JJ) delivered on 21 June 2019.
Associate:
Date: 21 June 2019
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