Baldachino and Hanas (Costs)

[2010] FamCA 762

FAMILY COURT OF AUSTRALIA

BALDACHINO & HANAS (COSTS) [2010] FamCA 762

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Family Law Rules 2004 Chapter 19

APPLICANT: Ms Baldachino

RESPONDENT: Mr Hanas

FILE NUMBER: CAF 421 of 2005

DATE DELIVERED: 19 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 19 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T. Hodgson

SOLICITOR FOR THE APPLICANT: Nicholl & Co Lawyers

COUNSEL FOR THE RESPONDENT: Mr C. Mackay

SOLICITOR FOR THE RESPONDENT: Christopher Mackay – Lawyer

Orders

IT IS ORDERED THAT:

1. The husband pay the wife’s costs of an incidental to the property proceedings between the husband and wife from 6 September 2006, such costs to be agreed or in default of agreement to be taxed.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:    CAF 421 of 2005

MS BALDACHINO

Applicant

And

MR HANAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 24 March 2010, I made orders dividing the property of the parties, Ms Baldachino and Mr Hanas.  I have before me today an application for costs made by Ms Baldachino in relation to the proceedings under the Family Law Act 1975 (Cth).

2. In this matter, I have considered the written and oral submissions of the parties about the costs of the substantive proceedings. 

Section 117 of the Family Law Act 1975 (Cth)

1. Costs are governed by s 117 of the Family Law Act 1975 (Cth). Section 117(1) provides the primary position that “subject to [s 117(2)], subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”

2. The Court may make such order as to costs and security for costs as the Court considers just if it is of the opinion that there are circumstances that justify it in doing so.[1]

   [1] Family Law Act 1975 (Cth) s 117(2).

3. If the Court is to make such an order, the Court shall have regard to the matters relevant to the making of the order under s 117(2A) of the Family Law Act 1975 (Cth).

4. I take into account the following matters.

Financial circumstances of each of the parties to the proceedings (s 117(2A)(a))

1. I do not have a substantial up-to-date record of Ms Baldachino’s present financial circumstances.  The result, however, of the proceedings before the Court, subject to the application of the Commissioner for Taxation, would leave her, in my opinion, in a superior financial position to Mr Hanas.  I note the material to which my attention has been directed both by Mr Mackay and by Mr Hodgson. This discloses that the husband has approximately $700,000 net from the assets referred to in his financial statement.  From this there is a sum due, (subject to the appeal outstanding in this matter, and the success of the application of the Commissioner of Taxation) of some $500,000 to Ms Baldachino.

2. This would suggest that if there is any weight to be given to this provision it would be in favour of the husband. 

Whether any party is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party (s 117(2A)(b))

1. Legal aid is not a relevant consideration in this matter. 

The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, productions of documents and similar matters (s 117(2A)(c))

1. The matters in this category must obviously be found against Mr Hanas.  My judgment of 24 March 2010 sets out the matters in which he has failed to comply with various orders for disclosure.  His conduct at least gives rise to the proposition that his conduct fits fairly and squarely within the terms of this provision.

2. In particular, I note the factors set out in paragraphs 81 and following of my judgment of 24 March 2010 and my assessment as to his credit-worthiness in the circumstances.

Whether proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court (s 117(2A)(d))

1. The proceedings were in this instance not necessitated by a failure of a party to comply with previous orders.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings (s 117(2A)(e))

1. Neither party has been wholly unsuccessful in these proceedings. 

Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer (s 117(2A)(f))

1. The offers that were made were offers which were significantly more generous to Mr Hanas than the final result, and this again is a factor operating against him.  I take note of the submission made by Mr Mackay and in part by Mr Miller (in his written submissions) that without some idea of what the total figure for costs might be, first, it is too difficult to assess the ability of Mr Hanas to meet the order and, second, the appropriateness of such an order.

Such other matters as the Court considers relevant (s 117(2A)(g))

1. I note that the costs incurred by Ms Baldachino are said to be in the vicinity of $175,000 on a solicitor‑client basis.  I do not believe that the size of the costs bill should be a determinative factor.  Mr Hanas’ submissions (about not knowing what approximately the costs might be) in relation to this matter are somewhat hollow given that he must know from his own (lawyer’s) bills how much the costs would be in relation to his representation during the course of the proceedings. 

2. It can come as no surprise to Mr Hanas that the costs sought by Ms Baldachino would exceed $100,000. 

Conclusion

1. It seems to me in the circumstances of this matter that I should make an order for costs in favour of Ms Baldachino. 

2. I am unable in the circumstances to make a precise order about the amount that ought to be paid. I can indicate that the order for costs will be as agreed between the parties, or in default of agreement, to be taxed in accordance with Chapter 19 of Family Law Rules 2004.

3. If it is of any assistance to the parties, I indicate that if I was to put a figure on (the sum to be paid) (and I do this by way of indication not by way of determining the figure) it would be in the order of $100,000. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 19 August 2010.

Senior Legal Associate:

Date: 2 September 2010