Bahar and Sohrab (No 2)

[2015] FamCA 1199

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB (NO 2) [2015] FamCA 1199

FAMILY LAW – COSTS – where the husband was ordered to pay costs on a solicitor/client basis

APPLICANT: Ms Bahar

RESPONDENT:	Mr Sohrab
FILE NUMBER:	CAC	1429	of		2014

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 21 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr D Farrar
SOLICITOR FOR THE RESPONDENT:	Mrs G Yeend

Orders

1. The respondent will pay to the applicant’s solicitors, or as they may direct, within thirty days of the date of this Order, the sum of $6,736.30 by way of costs together with interest in the sum of $395 in respect of the Order made by me on 21 September 2015.

2. That finalises this interim matter. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahar & Sohrab 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 CANBERRA

FILE NUMBER: CAC 1429 of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

REASONS FOR JUDGMENT

1. In this matter the facts are not seriously in dispute.  It is only the construction of them that is in contention. Under the Rules, Rule 18.09, subsection (2) provides that:

   A party may apply for a stay of an order in whole or in part.

2. There are specific provisions under the Act in relation to the stay of an order pending an appeal.  The payment out of some money which might not be recoverable in the event that the appeal was successful, is not the situation here for a number of reasons. 

3. The first was that there is no suggestion that there will not be sufficient funds available to recover the money if, in fact, it was wrongly paid. 

4. The second is that it would have been sensible in the circumstances to at least bring that argument forward or to make an application for a stay.  This is so particularly in circumstances where there was no response to a letter that says in broad terms, if I decide to make an appeal, I might make an application for a stay.  I am concerned that the payment was not made until the appeal period expired.  That suggested that, in effect, an advantage of a month was sought in relation to the matter. 

5. I concede that in his letter of offer to settle these proceeding on 21 October 2015, Ms Yeend, on behalf of Mr Sohrab, offered to pay the interest through to 19 October.  I do not think anything much turns on an extra day here or there.  However, the reality is the order was there to be complied with.  No reason has been advanced as to why it could not have been complied with, even if there was a pending appeal.  No application was made, as might have been made under the Rules, for a stay in the order pending the obtaining of advice or pending the recovery (of mobility) of the current respondent.

6. There is no contest, in effect, as to the payment of interest.  There is no contest, in effect, as to the payment of costs.  The only question is whether those costs should be on a solicitor/client basis or on a party /party basis. 

7. In this regard, an issue arises which is different from that posed by the original order for costs which was made essentially, on a solicitor/client or an indemnity basis.  The issue that arises here is whether there should be a departure from the ordinary order that there be an order for costs and if so, what are the circumstances that would justify it in doing so. 

8. I say in contrast, because in the previous matter it seemed to me that the reality of the situation was that if there were to be an order for costs thrown away, logically that should be an order that provided precisely that result.

9. In other words that was about what was thrown away and not what might have been thrown away if someone had charged scale. 

10. Taking account of the authorities in relation to indemnity costs, the circumstances in this matter which single it out as being different from an ordinary matter, are these.  First, the current respondent had the financial ability to comply with the order even if the money held in trust were not to be paid out, although that was a direct order to him to do so.  Second, he has the capacity through his able instructors and his able lawyers to make an application for a stay in the order requiring the payment out of the money if he felt it was appropriate to do so.  He did not do so.

11. He failed to comply with the order until an application was made and even after the application was made, continued not to comply with the order, although he acknowledged in his most recent letter that it was appropriate that he should have complied and in the end he only complied after the period limited for appeal had expired. 

12. There is no doubt that these proceedings were necessitated by his failure to comply with previous orders.  There is no doubt that he has been wholly unsuccessful in these proceedings and his offer to settle which might have been couched in terms that said “I will make an order that reimburses you for what you have spent so far” did not occur in that way.

13. I take account of his offer which only offered to pay party and party costs and not solicitor/client costs, but I take it into account in effect against him, in that it would have precluded the additional costs associated by the attendance today and the completion of these proceedings.  In such circumstances it seems to me that there are proper reasons why the normal arrangements should be varied and in my opinion, the costs should be paid on a solicitor/client basis.  That means that the costs payable, which should be paid within 30 days, are in the sum of $6736.30 and I note that by agreement the husband agrees to pay interest and I accept the calculation of interest in that amount as $395.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 21 October 2015.

Associate: 

Date:  27 January 2016