Arman and Arman (No. 3)

[2009] FamCA 201

FAMILY COURT OF AUSTRALIA

ARMAN & ARMAN (NO. 3) [2009] FamCA 201

FAMILY LAW – COSTS – Indemnity

APPLICANT: Ms Arman

RESPONDENT: Mr Arman

FILE NUMBER: MLC 3450 of 2007

DATE DELIVERED: 24 March 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Jordan J

HEARING DATE: 23 & 29 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr R S Ingleby

SOLICITOR FOR THE APPLICANT: Harwood Andrews Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Goldsmith, Goldsmiths Solicitors

Orders

IT IS ORDERED

1. That the Husband pay the Wife’s costs of and incidental to her application filed on 4 December 2008, including any reserved costs in relation to that application, such costs to be paid on an indemnity basis, with the quantum of such indemnity costs as agreed to between the parties and failing agreement as taxed.

2. That the payment of such costs be an adjustment to and a payment to the Wife from the proceeds of sale of the B Street property to be sold in accordance with the orders of the Honourable Justice Cronin on 31 October 2008.

IT IS NOTED that publication of this judgment under the pseudonym Arman & Arman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 3450 of 2007

MS ARMAN

Applicant

And

MR ARMAN

Respondent

REASONS FOR JUDGMENT

1. In this matter, the wife seeks an order for costs on an indemnity basis in relation to proceedings determined by me on 29 January 2009.

2. On 29 January 2009, I heard and determined the application of the wife filed on 4 December 2008, being an application to set aside a transaction to sell a property situate at B Street, together with applications in relation to the sale of a T Street property.

3. I refer to my judgment and orders made on 29 January 2009.

4. The focus of my determination on that day was in relation to a contract for sale of the B Street property.  I declined to make the orders sought in relation to the T Street property. 

5. As appears in my earlier judgment, I am satisfied that the application in relation to B Street was justified and necessary and precipitated by the conduct of the husband, which was contrary to the letter and the spirit of the orders of the trial Judge made on 31 October 2008.

6. At the request of the parties, I reserved costs at that time and invited written submissions, which I have now received.

7. In the written submissions forwarded to me on behalf of the wife, orders were sought in relation to applications filed on 13 November 2008 and 1 December 2008.  Cronin J made orders in relation to those applications and, at the same time, made orders reserving costs.  His Honour, apparently, invited written submissions in relation to those matters.

8. I take the view that the only costs application to be properly considered by me is that relating to the application filed on 4 December 2008 and finally determined by me on 29 January 2009, to include any reserved costs in relation to that application only.

9. I acknowledge that the statutory provisions relating to the deliberations of a Court in such matters are as set out in s 117(2A) of the Family Law Act.

10. As to the “general rule” that each party should bear his or her own costs, I take the view that that proposition needs to be considered in a different light in the context of enforcement proceedings or proceedings instituted after final orders have been made.  Whilst the notion that each party should bear their own costs is an appropriate starting point in the ordinary course of proceedings, I take the view that different considerations should apply when additional proceedings are necessitated after the apparent completion of litigation and in circumstances where the need for further proceedings is caused by a failure to comply with final court orders.  In those circumstances, I take the view that an appropriate starting point is to pose the question:  why should the innocent, non-defaulting party be put to the expense of prosecuting what should have been an entirely unnecessary legal process?

11. As I have indicated earlier in this judgment and in the substantial judgment, these entire proceedings were necessitated by the husband’s inappropriate conduct. 

12. In the s 106B proceedings, the wife has been entirely successful and the husband entirely unsuccessful.

13. I take account of the fact that each of the parties is in comparatively poor financial circumstances.  The extent to which the wife would be out of pocket if required to meet the costs of this unnecessary exercise would cause her significant hardship.

14. I take account of the fact that not only did the husband’s conduct necessitate these proceedings, his conduct in the proceedings themselves further compounded the situation and added to the costs.  The husband took unmeritorious objections, he required formal proof when facts were not in issue and he required witnesses for cross-examination unnecessarily.  It was largely as a consequence of those matters that the case had to be stood over from the 23rd to the 29th of January 2009.

15. In all the circumstances of this case, I take the view that the wife should be indemnified from the costs of the entire s106B exercise initiated by her application filed on 4 December 2008.  In my view, it would be entirely unjust if she is out of pocket as a consequence of the husband’s misconduct in breach of the orders of Cronin J and his misconduct in the proceedings before me.

16. In all the circumstances, I do further order:

    (1)That the husband pay the wife’s costs of and incidental to her application filed on 4 December 2008, including any reserved costs in relation to that application, such costs to be paid on an indemnity basis, with the quantum of such indemnity costs as agreed to between the parties and failing agreement as taxed.

    (2)That the payment of such costs be an adjustment to and a payment to the wife from the proceeds of sale of the B Street property to be sold in accordance with the orders of the Honourable Justice Cronin on 31 October 2008.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan.

Associate: 

Date: