Begum v Loft, Loft v Begum

[2011] TASSC 3

[2011] TASSC 3

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Begum v Loft, Loft v Begum [2011] TASSC 3

PARTIES:  BEGUM, Naseem
  v
  LOFT, George Skip

LOFT, George Skip
v
BEGUM, Naseem

FILE NO/S:  M262/2006

S699/2010

DELIVERED ON:  10 February 2011
DELIVERED AT:  Hobart
HEARING DATE:  21 December 2010
JUDGMENT OF:  Tennent J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Adjustment of property interests – Other matters – Costs – Whether costs should follow the event.

Relationships Act 2003 (Tas), s68.
Bellchambers v Jackson [2009] TASSC 113, referred to.
Aust Dig Family Law and Child Welfare [500]

REPRESENTATION:

Counsel:
             Applicant:  W A Ayliffe
             Respondent:  G J Faulds
Solicitors:
             Appellant:  Walkers
             Respondent:  Faulds & Associates

Judgment Number:  [2011] TASSC 3
Number of paragraphs:  20

Serial No 3/2011
File Nos M262/2006

S699/2010

NASEEM BEGUM v GEORGE SKIP LOFT
GEORGE SKIP LOFT v NASEEM BEGUM

REASONS FOR JUDGMENT  TENNENT J

10 February 2011

1. These reasons relate to applications for costs flowing from a judgment delivered in proceedings involving George Skip Loft ("the applicant") and Naseem Begum ("the respondent") on 2 December 2010 (Loft v Begum [2010] TASSC 57). That judgment was in respect of an application brought pursuant to the Relationships Act 2003 ("the Act"), s56, to set aside orders made by the Associate Judge on 20 March 2009.

Course of proceedings between the parties

1. The respondent filed an application in September 2006 by which she sought an order adjusting property interests as between her and the applicant pursuant to the Act, s40. Orders were made in her favour following a hearing before the Associate Judge. The applicant took almost no part in the actual hearing. He had been represented by counsel throughout the course of the proceedings. The applicant's counsel appeared at the hearing, but the applicant did not. When an application for an adjournment was unsuccessful, the applicant's counsel withdrew and the matter proceeded ex parte.

1. The orders provided that the applicant pay the respondent a cash sum or, in default of that payment, that she receive a proportion of the proceeds of sale of a property at South Arm. The reasons for decision of the Associate Judge were published on 20 March 2009. The formal orders giving effect to those reasons were taken out on 7 April 2009.  On 6 May 2009, the applicant lodged an appeal. It was lodged outside the time allowed for such an appeal. The grounds relied on were largely that the applicant's counsel had not done a number of things. No application was made to extend time nor was there any application to lead evidence on the hearing of the appeal not led at the hearing.

1. The appeal was listed for directions on 15 June 2009. On 20 May 2009, three affidavits were filed on behalf of the applicant, one by him and two by carers associated with him.  On 15 June 2009, directions were made for the filing of affidavit material, and the matter was relisted for mention on 17 August 2009. No further affidavits were filed by the designated dates. On 17 August 2009, the matter was further adjourned to 9 October with a revised timetable. On 8 October, the parties sought a further adjournment. There had still been no further affidavits filed.  On 30 November 2009, an affidavit sworn by Mr Steven Chopping, the applicant's former solicitor, was filed. It purported to refer to an earlier affidavit of his, although none had been filed with the Court.

1. The matter came back on for directions before a judge on 12 April 2010. Again directions were made for the filing of affidavit material, and the matter was adjourned to 20 May. On 7 May 2010, an affidavit of the applicant was filed with the Court. It appeared to be almost a duplicate of that filed the previous May. On 21 May, directions were made for the preparation of appeal books and for the listing of the appeal for hearing. On 17 August 2010, a notice of hearing issued listing the appeal for 21 September 2010.

1. On 23 August 2010, the applicant's solicitors filed an application to set aside the Associate Judges' orders of March 2009. On 24 August, the applicant's solicitors filed an amended notice of appeal. On 27 August 2010, the applicant's solicitors filed an interlocutory application by which they sought to have the appeal and set aside application heard together, to have all affidavits filed in the appeal read on the hearing of the application to set aside, to amend the application to set aside filed four days before, and to amend the notice of appeal. Orders were made to give effect to that application on 2 September.

1. Having regard to what was ultimately the evidence before the Court, it would be fair to say that the application to set aside filed nearly a year and a half after the initial orders were made adjusting property interests between the parties was the type of application which should have been made in the first place. The appeal was largely misconceived.

1. The appeal and the application to set aside came on for hearing in September 2010. The parties agreed that the application to set aside would be dealt with first and that the hearing of the appeal would follow. For all practical purposes, the hearing, which took place over three days, was almost entirely directed to the set aside application. The Court found that there was a miscarriage of justice and ordered that the orders of the Associate Judge be set aside.  The application which resulted in the orders set aside has been remitted for rehearing. The appeal was simply adjourned sine die without any determination as to its merits, there being no need to determine it.

1. As a consequence of the Court's decision to set aside the orders of the Associate Judge, the applicant sought orders that the respondent pay his costs of and incidental to the application to set aside. He also sought that, given the orders of the Associate Judge were set aside and those orders included an order that the applicant pay the respondent's taxed costs of her original application for an adjustment of property interests, the issue of the costs of the original application simply be reserved to be dealt with by the Associate Judge when he dealt with the rehearing of the respondent's application.

1. The respondent opposed both applications and sought orders that the applicant pay her costs of both the original hearing and the set aside application.

Costs to be dealt with

1. The affidavits read at the hearing of the application to set aside were, with one exception, all affidavits prepared and filed in respect of the 2009 appeal.  A number of documents, including Mr Chopping's file, were tendered. All deponents of affidavits, including the applicant, were cross-examined. During the course of Mr Chopping's examination, another affidavit, apparently sworn 11 August 2009, was found with his file. It was determined that was the affidavit referred to in his November 2009 affidavit. It was tendered subject to a deletion.

1. Quite clearly, most of the costs in proceedings between the parties between 6 May 2009 (the date upon which the applicant's appeal was lodged) and the commencement of the hearing, were costs incurred in relation to the appeal and not costs in respect of an application to set aside. However it is also apparent that the two sets of proceedings are inextricably bound together and it would, in my view, result in an injustice if costs were ordered solely in relation to the application filed 23 August 2010. For that reason, the costs I will deal with are all costs associated with both the appeal and the set aside application from the date of filing of the appeal as, in effect, costs incurred in the application to set aside.

The application for costs of the set aside application

1. The applicant's counsel relied on a decision of Blow J in Bellchambers v Jackson [2009] TASSC 113 as authority for the proposition that, in proceedings under the Act, the rule that "costs follow the event" applies. Since his client was successful, he argued that his client should have his costs. In Bellchambers, Blow J was dealing with an application for costs arising in proceedings under the Act, s40, where a consent order was ultimately made. At [20], his Honour said:

"The approach suggested by Brereton J in that case was considered and rejected by the New South Wales Court of Appeal, differently constituted, in Dunstan v Rickwood (No 2) (supra).  McColl JA, with whom Beazley and Ipp JJA agreed, pointed out that the comments of Brereton J amounted only to dicta, and concluded that the proper approach was to apply the rule that, prima facie, costs should follow the event.  It was held that the respondent to the appeal, having been successful at trial, was entitled to an order for costs.  In my view there is no basis for distinguishing Dunstan v Rickwood (No 2), and it therefore should be followed in Tasmania."

His Honour however went on at [21] to say:

"There may be property cases under the Act in which neither party can be characterised as the successful party. For example, if assets have to be sold, the parties each seek more than 50 per cent of the net proceeds, and the final orders are more or less equally unfavourable to both parties, it might be said that neither party has been successful and that the ordinary rule therefore cannot apply."

The case is not authority for the proposition that in every case under the Act, a successful applicant should have his or her costs. Clearly the circumstances of the case are relevant.

1. In the present case, the applicant sought the exercise of a discretion in his favour. His entitlement to have the orders of the Associate Judge set aside was not automatic. The basis upon which the Court ultimately found there had been a miscarriage of justice was entirely related to the conduct of the applicant and his counsel. It was not in any way related to the conduct of the respondent. Counsel for the applicant submitted that the respondent should have known, at least once the affidavit of the applicant's former solicitor was filed on 30 November 2009, that the application to set aside would most likely be successful. With respect I disagree. Firstly, that affidavit was filed in relation to the applicant's appeal, an appeal which I have already commented was largely misconceived. The application to set aside was not filed until 23 August 2010 and the affidavit only came to be relied upon in relation to that application as a result of an order made on 2 September 2010, that is an order made less than three weeks before the hearing.

1. Secondly, the findings ultimately made as a consequence of the hearing of the set aside application involved a consideration of oral evidence given at the hearing which went well beyond the affidavit material which had been filed, and also upon issues of credit of the applicant. The findings made did not reflect well upon him. The ultimate decision involved the exercise of a discretion which could have as easily not favoured the applicant.

1. This is not a case where the respondent should have simply acquiesced in the making of orders setting aside the orders of the Associate Judge. She was well entitled to have the matter determined by the Court. Other relevant factors are that the orders made by the Associate Judge were made in March 2009. Almost two years have passed and the proceedings between the parties remain unresolved, largely as a result of the conduct of the applicant and his various legal practitioners. The appeal lodged by the applicant was not prosecuted with any diligence and the application to set aside was filed  some 17 months after the orders were made.

1. For those reasons, this is not in my view a case where costs should follow the event. There are circumstances which justify a departure from that rule. There will be an order that the applicant pay the respondent's costs, as if they were costs in respect of the set aside application, incurred on and from 6 May 2009 in respect of both the appeal and the set aside application. This order is to include the costs of and incidental to the application for costs.

Costs of the original hearing before the Associate Judge

1. Counsel for the applicant submitted that the issue of costs incurred in relation to the original hearing should be reserved to the Associate Judge on the rehearing. The Act, s68, provides that, in proceedings under the Act, the Court may make any order for costs it considers appropriate.

1. The respondent incurred costs in relation to the original hearing. She was successful at that hearing and an order was made that the applicant pay her costs. Through no fault of her own, she has lost the benefit of, not only the substantive orders made in her favour, but also the costs order. The costs she has incurred have in effect been thrown away.  She will have to take part in a rehearing of her application for an adjustment of property interests almost four years after her initial application was filed, and incur further costs in relation to that. Had the applicant taken an active part in the proceedings initiated by the respondent and filed material to enable both parties to place their cases before the Associate Judge in the first place, that rehearing would not have been required.  There is no doubt on the evidence which I heard that the applicant did not co-operate to ensure an expeditious hearing of the respondent's application.

1. In those circumstances, in my view it is appropriate that the respondent have her costs of the original hearing. There will be a further order that the applicant pay the respondent's costs of and incidental to her application for adjustment of property interest heard and determined by the Associate Judge in March 2009.