BAGHTI & BAGHTI - [2013] FamCAFC 194

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI

[2013] FamCAFC 194

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks to appeal orders made by Fowler J on 20 September 2013 – where the husband seeks that the hearing of the appeal be vacated and the appeal be consolidated and heard with appeal number EA 118 of 2012 – where the appeal is opposed by the wife – where the wife seeks that the application be dismissed – where there is no utility in the appeal given that the business the subject of the orders made on 20 September 2013 has been sold and the net proceeds of sale have been distributed – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – Where the wife seeks costs on a party/party and indemnity basis – where the appellant neither consents to nor opposes the making of costs on that basis – costs ordered on a party/party and indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 17.02

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

APPELLANT:

Mr Baghti

RESPONDENT:	Ms Baghti
FILE NUMBER:	SYC	2145	of		2009

APPEAL NUMBER:

143

2013

DATE DELIVERED:	12 November 2013
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland,
Ainslie-Wallace & Stevenson JJ

HEARING DATE:

12 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 September 2013

LOWER COURT MNC:

[2013] FamCA 734

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Millist-Spendlove

SOLICITOR FOR THE APPLICANT:

Demir Legal

COUNSEL FOR THE RESPONDENT:

Mr Lawson

SOLICITOR FOR THE RESPONDENT:

SWAAB Attorneys

Orders

Appeal number EA 143 of 2013 be dismissed.
The appellant husband pay the costs of the respondent wife of and incidental to the appeal such costs in default of agreement to be assessed up to and including

4 November 2013 on a party/party basis and thereafter on an indemnity basis

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti 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 SYDNEY

Appeal Number: EA 143 of 2013
File Number: SYC 2145 of 2009

Mr Baghti

Appellant

And

Ms Baghti

Respondent

EX TEMPORE REASONS FOR JUDGMENT

We have before us the amended notice of appeal filed by the husband on

31 October 2013 appealing against orders made by Justice Fowler on

20 September 2013.
Also before us today is an application in an appeal filed by the husband on

7 November 2013, supported by an affidavit in which the husband seeks that the hearing of the appeal be vacated, and the appeal in effect be consolidated with and heard with appeal number EA 118 of 2012. Appeal number EA 118 of 2012 is an appeal which is currently awaiting listing.
There is a response to the application in an appeal filed by the wife on

8 November 2013, supported by an affidavit also filed on that date. In that Response there are a number of orders sought but relevantly order number 2 seeks that the application in an appeal filed on 7 November 2013 be dismissed.
At the commencement of the hearing today we raised with counsel for the husband the utility of the appeal against the orders made by Justice Fowler on 20 September 2013.
A brief background to the making of the orders on 20 September 2013 is required and is as follows.
His Honour made final parenting orders and property settlement orders on

22 August 2012. One of the orders made by his Honour related to the sale of a business known as “D Business”. However, he left open the precise terms of the orders that he would make in relation to the sale, and provided for the parties to make written submissions as to that. Ultimately, on 27 November 2012, his Honour formally made the order for the sale of the business known as “D Business”. Importantly, in paragraph 7(1)(b) of those orders his Honour provided for the sale price at which the business was listed to be mutually agreed upon by “the parties”.
On 11 September 2013 the wife filed an application in a case seeking that

his Honour amend the order just referred to pursuant to the slip rule, and specifically r 17.02 of the Family Law Rules 2004 (Cth) (“the Rules”). The amendment sought was that the words “the parties” be amended to “the wife and [Ms B]”, the latter being the wife’s sister.
That application was opposed by the husband, and he filed a Response on

19 September 2013.
His Honour determined the matter, and as I have said, made orders on

20 September 2013. He also delivered reasons for judgment in support of those orders on that day.
His Honour acceded to the application by the wife and pursuant to r 17.02 of the Rules, he amended paragraph 7(1)(b) by substituting the words “the wife and [Ms B]” for the words “the parties”.
It is that order that is the subject of the appeal that is before us today, being appeal number EA 143 of 2013.
At the commencement of the hearing we raised with counsel for the husband, the utility of the appeal. In the context of the background just recorded, what we are told in the affidavit of the wife filed on 8 November 2013 is that the business has in fact been sold, and settlement of that sale took place on

24 October 2013. The sum of $108,000 was received at settlement by way of proceeds of sale, the sale price having been $120,000, and in paragraph 13 of that affidavit the wife sets out how that sum of $108,000 has been distributed.
It is that circumstance which prompted us to raise the question of the utility of the appeal. In other words, given the business has now been sold and the proceeds have been distributed, what is the purpose or the utility of proceeding with an appeal against the orders made by Justice Fowler on 20 September 2013, wherein he amended his earlier order in relation to who was to set the sale price of the business.
In response to that question, counsel for the husband has conceded that there is no utility to the appeal, but has indicated that her instructions are still to press the appeal.
The wife’s counsel seeks that in the circumstances we should dismiss the appeal and award costs against the husband.
We consider that there is no utility to the appeal and for that reason it should be dismissed.
In relation to costs the husband’s counsel, who we understand and appreciate is in a difficult position in relation to this matter, having made the sensible and appropriate concession that the appeal has no utility, but has equally put to us what her instructions are namely, to press the appeal, has again made what we consider a sensible and appropriate concession in the circumstances, and that is that in the event the appeal is dismissed, there is no opposition to an order for costs. We thank her for that concession as we thank her for her concession in relation to the utility or otherwise of the appeal.
The orders that we propose would be first the appeal numbered EA 143 of 2013 be dismissed. In relation to the question of costs though it has now been clarified by the wife’s counsel that the specific application is that costs be assessed on a party/party basis up to 30 October 2013, and thereafter calculated on an indemnity basis. Thirty October 2013 is the date of a letter which was apparently emailed to the husband’s solicitors. In that letter it was confirmed that the business had been sold, the detail of the distribution of proceeds was provided, and at the conclusion of the letter the husband was invited to withdraw his Notice of Appeal against the orders made by Justice Fowler, given that the sale had been completed. The letter went on and indicated that in the event that the husband failed to withdraw the Notice of Appeal, he was put on notice that this correspondence would be tendered in support of a costs application. We note there was no timeframe specified for reply, and it was simply indicated that there should be a prompt reply.
In support of that application Mr Lawson has referred us to the well-known decision of the Federal Court in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 and has identified what the authorities require namely, that there be exceptional circumstances demonstrated to justify an indemnity costs order.
In this case the exceptional circumstances are said to be that as of the date of that letter the husband was put on notice that the business had been sold, the proceeds had been distributed, and in those circumstances the appeal should be withdrawn. Yet, despite that letter the appeal has been proceeded with to the point of it being listed for hearing today, and as we have indicated earlier, the husband’s counsel has indicated that today the appeal is still pressed.
We indicated earlier that in relation to the costs application counsel for the husband had sensibly indicated there was no opposition to that, however of course that was when the costs application was put in a general way. In response to the application as it is now put namely, indemnity costs from

30 October 2013, the husband’s counsel has indicated that the husband neither consents to nor opposes that particular order.
We consider that there are exceptional circumstances here that warrant an order for indemnity costs, but not from the date of the letter of 30 October 2013. It seems to us that a reasonable time should be allowed for a response to have been forwarded if there was to have been a response, and it would be appropriate to allow a period of several days, taking it to Monday 4 November 2013.
Thus there should be an order for indemnity costs, but only as from

4 November 2013. Prior to that date costs should be assessed on a party/party basis.
In relation to costs then the order that we would propose is that the husband pay the costs of the wife of and incidental to the appeal, such costs in default of agreement to be assessed up to and including 4 November 2013 on a party/party basis, and thereafter on an indemnity basis.

Ainslie-Wallace J

I agree with the reasons and the orders proposed by the presiding judge and I do not wish to add anything.

Stevenson J

I likewise agree with the orders proposed and reasons given by the presiding judge and have nothing further to add.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Stevenson JJ) delivered on 12 November 2013.

Associate:

Date: 3 December 2013