Beklar and Beklar (No 2)

[2012] FamCA 953

FAMILY COURT OF AUSTRALIA

BEKLAR & BEKLAR (NO. 2) [2012] FamCA 953

FAMILY LAW – INTERIM COSTS – Where wife applied for an order that the husband pays costs of her interim costs application in which the wife was all but wholly successful – Where wife’s non-compliance with orders to enable an orderly and cost-effective approach to the determination of interim costs is afforded greater weight despite being largely successful in that application – Where wife’s application for costs of her interim costs application is dismissed.

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

APPLICANT: Ms Beklar

RESPONDENT: Mr Beklar

FILE NUMBER: SYC 3556 of 2008

DATE DELIVERED: 30 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 30 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Paul & Paul

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. The wife’s application for costs of her Application in a Case filed 30 August 2012 is dismissed.

2. THE COURT NOTES the list of witnesses is as follows:

   a.in the wife’s case:

   i.herself.

   b.in the husband’s case:

   i.himself;

   ii.his wife, Ms F;

   iii.his mother, Ms Beklar Snr;

   iv.his sister, Ms H;

   v.his father, Mr Beklar Snr;

   vi.Mr J;

   vii.Ms K; and

   viii.Mr I.

3. That the parties agree that the balance of the husband’s shareholdings with A Ltd Employee Share Fund will be updated in relation to which the single expert Mr L will undertake that valuation, the costs of which the parties will share equally.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beklar & Beklar (No. 2) 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 3556 of 2008

Ms Beklar

Applicant

And

Mr Beklar

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Today I made orders in relation to an application by the wife that the husband pay interim costs or an interim property settlement order be made.  The gravamen of the applications was to secure a fund for her legal expenses for the forthcoming fourth attempt at a final hearing.

3. The wife has been all but wholly successful in her application and, as a consequence, has applied for an order that the husband pays her costs of her interim costs application. I agree that her success in the application is a justifying circumstance within the meaning of s 117(2) of the Family Law Act 1975 (Cth) (“the Act”). However, it does not follow that having established justifying the circumstance that a party is automatically entitled to their costs.

4. Section 117(2A) of the Act requires that the Court considers the matters therein and conducts a balancing exercise of those factors which weigh for or against a particular proposition qua costs.

5. Both parties have filed Financial Statements and, as will be seen from my reasons published today, the husband’s financial circumstances are superior to the wife’s; the effect of which is that s 117(2A)(a) weighs in her favour.

6. Neither party is in receipt of a grant of legal aid.

7. In relation to conduct, this is a matter to which considerable significance is attached, as is apparent from my earlier reasons.  On 31 May 2012 I made the first set of directions in relation to the mooted application by the wife for an order that the husband contributes to her legal costs.  That application was to be made within 14 days.  It was not. 

8. The matter had been adjourned until 31 August 2012 and the opportunity was present for any interim application for costs to be heard and determined that day.  However, because the wife failed to comply with the directions made 31 May 2012 and it was not until 30 August 2012 that she filed her application for interim costs, the matter could not be dealt with on 31 August 2012. 

9. This necessitated a further set of directions to enable that application to be determined.  Because the timeframe to the final hearing is tight and the Court could not find another day on which the interim costs application could be determined, a pragmatic decision was made that the application would be determined without oral argument.  This necessitated written submissions which, as is apparent from Exhibit 1, and is probably well known, are expensive.  There is no doubt that the husband incurred costs unnecessarily in relation to the provision of written submissions solely as a consequence of the wife’s failure to comply with directions.

10. In terms of conduct, the gravamen of these matters is that it weighs in favour of the husband against an order for costs. 

11. Both parties made offers to settle, which are found in Exhibits 1 and 2.  The first offer of settlement proposed an outcome by the wife which is somewhat less than she has secured.  The offer, however, required a response on the same day.  In my view, the tight turnaround time imposed in the offer, for reasons which are not apparent, detracts from the weight that should be attached to it.  Quite simply, the husband was not given a proper amount of time within which to consider whether or not to accept the offer.  It is a practice that one sees a little too often and, again, is something which it would be nice to see desist.  A serious offer of settlement should be made in circumstances where it enables serious consideration by the person receiving it.

12. In any event, a response was provided which culminated in an offer by the respondent of 10 October 2012.  This is along the lines of the alternate proposal contained in the written submissions relied upon by the husband in the costs application.  The offer, as presented by the husband, was not unreasonable although it proposed less than the wife achieved. 

13. In response, the wife proposed acceptance of the scheme of the husband’s offer, but the amount remained in dispute, albeit she again offered to settle for less than she secured.

14. On balance, the offers are all but moot.  My point being the wife did make clear on a couple of occasions that she was willing to settle for less than she achieved, which means that there should be a slight weighting of this factor in her favour. 

15. There are no other matters which are relevant to this costs application.

16. On balance, I am satisfied that there should be no order for costs made in the wife’s favour.  Her non-compliance with the orders to enable an orderly and cost-effective approach to determination of this issue is afforded greater weight despite that she was largely successful and, indeed, offered to settle for less than she secured. 

17. Accordingly, the wife’s application for costs of her Application in a Case filed 30 August 2012 is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 30 October 2012.

Associate:     

Date:              20 November 2012