Banis and Anor and Baghti

[2015] FamCA 93

FAMILY COURT OF AUSTRALIA

BANIS AND ANOR & BAGHTI [2015] FamCA 93

FAMILY LAW – COSTS – INDEMNITY COSTS – Where the husband had been ordered to pay the costs of the costs applicants in the substantive proceedings – Where the husband sought a review of the Senior Registrar’s orders and directions in relation to the costs of the substantive proceedings – Where the husband’s review application was entirely unsuccessful – Where the costs applicants seek indemnity costs for the review proceedings – Orders made that husband pay indemnity costs.

Family Law Act 1975 (Cth) s 117(2A)

Prantage and Prantage (2013) 49 Fam LR 197

APPLICANTS: Mr Banis and Ms Banis

RESPONDENT: Mr Baghti

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 20 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 February 2015

REPRESENTATION

THE APPLICANT:	No Appearance
SOLICITOR FOR THE RESPONDENTS:	McDonnell Milne Toltz Family Lawyers

Orders

IT IS ORDERED

1. That within 30 days of the date of these orders Mr Baghti (“the husband”) pay Mr Banis’ and Ms Banis’ (“the costs applicants”) costs of the proceedings concluded on 13 November 2014 in the sum of $1,433.30.

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

FILE NUMBER: SYC 2145  of 2009

Mr Banis and Ms Banis

Applicants

And

Mr Baghti

Respondent

REASONS FOR JUDGMENT

1. On 13 November 2014 judgement was delivered in respect of an Application in a Case filed by Mr Baghti (“the husband”) seeking to review orders and directions made by Senior Registrar Campbell in relation to costs.

2. Those proceedings arose out of orders made by Fowler J on 27 November 2012 in the substantive property proceedings between the parties that the husband pay the costs of Mr Banis and Ms Banis. Mr Banis and Ms Banis are the applicants for costs before me (“the costs applicants”).

3. The circumstances of the husband’s application for a review of the Senior Registrar’s orders and directions in relation to the costs of the substantive proceedings and its dismissal are fully set out in the judgment delivered on 13 November 2014 and do not need to be repeated here.

4. The costs applicants now seek an order that the husband pay their costs of the review proceedings determined on 13 November 2014 on an indemnity basis.

5. The parties were ordered to file written submissions and the matter was listed before me for oral argument on 20 February 2015.

6. The solicitor for the costs applicants filed extensive written submissions and served those submissions upon the husband.

7. There was no appearance by the husband on 20 February 2014.

8. In an email to the Court, the husband stated that he wished to file evidence in response to the application of the costs applicants and requested an adjournment. The husband advised the Court that he was unable to attend at Court due to work commitments.

9. This matter has been on foot at least since the order for costs was made by Fowler J on 27 November 2012. The husband was aware that the matter would be heard today and he was aware that the Court had previously ordered that he file written submissions. He did not file written submissions. The costs applicants who had complied with the directions were ready to proceed in the matter and in those circumstances the request by the husband, informally conveyed in his email to the Court, for an adjournment was not granted. This matter needs to be heard and disposed of.

10. As the reasons delivered on 13 November 2014 make clear, the husband was entirely unsuccessful in his review application.

11. The costs applicants rely on subsections c, d, e and f of section 117(2)(A) of the Family Law Act 1975 (Cth) which is reproduced below.

    FAMILY LAW ACT 1975 - SECT 117

    (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to: …

    (c) 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, production of documents and similar matters;

    (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f) 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.

12. As to the conduct of the parties, the costs applicants rely upon the fact that the husband was given an opportunity to object to the assessment of costs, provided that he paid security. He did not pay the security. The husband made an application for a waiver of the requirement for the security payment but he did not put any proper evidence forward in support of the waiver. When the Senior Registrar dealt with the application and made further directions in August 2014 the husband was given a further opportunity to object and to pay security. He did neither.

13. The review of the Senior Registrar’s directions was filed by the husband out of time and the husband did not comply with directions.

14. The husband was wholly unsuccessful in his review application.

15. The costs applicants also rely upon correspondence indicating the attempts which they made to resolve the matter with the husband. By a letter dated 3 September 2014, the respondents invited the husband to agree to the costs assessment which had been made by the Senior Registrar so that a formal application would not need to be made.

16. A letter dated 23 September 2014 was sent by the costs applicants’ solicitors to the husband’s solicitors setting out at great length the deficiencies in his review application.

17. On 30 September 2014, the costs applicants’ solicitors wrote to the husband’s solicitors indicating that the application did not comply with the rules and that summary dismissal would be sought with indemnity costs.

18. On 7 October 2014, the costs applicants’ solicitors provided their assessment of costs to the husband’s solicitors.

19. The costs applicants were third parties to the substantive proceedings. They have been unnecessarily and unreasonably put to costs by virtue of the review application which was brought by the husband. It is appropriate that the husband should pay their costs.

20. The issue is whether or not those costs should be paid on an indemnity basis.

21. The principles to be applied when considering an order for indemnity costs are set out in the decision of the Full Court in Prantage and Prantage (2013) 49 Fam LR 197. The Full Court confirmed that an order for indemnity costs constitutes a great departure from the standard. However, in circumstances where the costs applicants are third parties to the proceedings, where the application before the Court to review the decision of the Senior Registrar was entirely unsuccessful and ill-founded, it is, in my view, appropriate that they should pay indemnity costs.

22. The assessment of costs which has been provided both to the Court and to the husband is modest and in my view the amount which is sought to be recovered is entirely appropriate. Accordingly, the husband will be ordered to pay the costs applicants’ costs on an indemnity basis as claimed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 February 2015.

Associate:

Date:  20/2/2015