Berfield & Berfield (No 4) - [2024] FedCFamC1F 881

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berfield & Berfield (No 4) [2024] FedCFamC1F 881

File number: SYC 482 of 2021

Judgment of: HARPER J

Date of judgment: 19 December 2024

Catchwords: FAMILY LAW – COSTS – Where the siblings of the husband were joined as Second and Third Respondents (“the siblings”) in the substantive proceedings by the wife – Where the siblings seek costs of proceedings on an indemnity basis against the wife – Where $100,000 of the adjustment payment by the husband to the wife pursuant to the final orders is held on trust as security for the siblings’ costs application – Where the wife was wholly unsuccessful in her equitable claim against the siblings – Indemnity costs not established – Wife to pay 50 per cent of the siblings’ costs of proceedings and the application for costs on a party/party basis as agreed or assessed – Payment in first instance to be from funds held on trust by wife’s solicitors.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 4, 79, 117

Civil Procedure Act 2005 (NSW) s 98

Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases cited:
Abano & Abano (No 2) [2024] FedCFamC1F 630

Atkins & Hunt (Costs) [2017] FamCAFC 131

Berfield & Berfield [2024] FedCFamC1F 193

Berfield & Berfield (No 2) [2024] FedCFamC1F 573

Berfield & Berfield (No 3) [2024] FedCFamC1F 714

Harris & Dewell and Anor (No 2) (2018) FLC 93-863; [2018] FamCAFC 180

Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Prantage & Prantage (Costs) [2014] FamCA 850

Division: Division 1 First Instance

Number of paragraphs: 34

Date of last submissions: 21 November 2024

Date of hearing: On the papers

Place: Sydney

Solicitor for the Applicant: Marsdens Law Group

The First Respondent: Did not participate

Counsel for the Second and Third Respondents: Mr Katsinas

Solicitor for the Second and Third Respondents: Simone Legal
ORDERS

SYC 482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS B BERFIELD

Applicant

AND:
MR C BERFIELD

First Respondent

MR D BERFIELD

Second Respondent

MS E BERFIELD

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:
1.The Applicant Wife (“wife”) pay 50 per cent of the costs of the Second and Third Respondents of:
(a)the proceedings from the date of their joinder; and
(b)the Application in a Proceeding filed 25 September 2024,

on a party and party basis as agreed or assessed.
2.The liability of the wife arising from Order 1 be satisfied in the first instance from the funds held in the trust account of the wife’s solicitors pursuant to Order 1 dated 24 October 2024, up to the amount which exhausts those funds, and thereafter for any balance owing by the wife and unpaid, by the wife.
3.There be no order as to costs of the Application in a Proceeding filed on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berfield & Berfield (No 4)

Details

AGLC: Berfield & Berfield (No 4) [2024] FedCFamC1F 881
Case: [2024] FedCFamC1F 881
Decision Date: 19 December 2024

CaseChat Overview and Summary

In the matter of Berfield & Berfield (No 4), the Federal Circuit and Family Court of Australia (Division 1) addressed a dispute involving Ms. B. Berfield, Mr. C. Berfield, Mr. D. Berfield, and Ms. E. Berfield. The primary issue was the allocation of costs between the wife, who was the applicant, and her husband's siblings, who were joined as respondents in the substantive proceedings. The siblings sought indemnity costs against the wife, arguing they should be paid by the wife in full due to her unsuccessful equitable claims. The wife opposed this, asserting that her claims were not hopeless and that she should not bear the full burden of the siblings' costs.

The court found that while the wife's equitable claims were ultimately unsuccessful, they were not hopeless or bound to fail. The judge identified a common intention that could have supported a constructive trust, although this did not succeed due to proportionality. The court did not find any exceptional factors that would justify indemnity costs against the wife. Instead, the judge concluded that a proportionate costs order was appropriate. Given the wife's financial circumstances, the court determined that she should pay 50 per cent of the siblings' costs, which were to be assessed on a party/party basis. The payment should be made initially from the $100,000 held on trust by the wife's solicitors, with any remaining balance to be paid directly by the wife.

In its order, the court mandated that the wife pay 50 per cent of the costs incurred by the siblings from the date of their joinder in the proceedings and in relation to the application filed on 25 September 2024. This payment should first be satisfied from the funds held in the wife's solicitors' trust account, up to the amount available, and any remaining balance by the wife herself. The court dismissed any costs order in relation to the application filed on 22 October 2024, and all other outstanding applications and responses were dismissed. This decision ensured a fair allocation of costs, taking into account the wife's financial situation while acknowledging the siblings' entitlement to some reimbursement for the proceedings.

Orders

Orders of the court

SYC 482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS B BERFIELD

Applicant

AND:

MR C BERFIELD

First Respondent

MR D BERFIELD

Second Respondent

MS E BERFIELD

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Applicant Wife (“wife”) pay 50 per cent of the costs of the Second and Third Respondents of:

(a) the proceedings from the date of their joinder; and

(b) the Application in a Proceeding filed 25 September 2024,

on a party and party basis as agreed or assessed.

2. The liability of the wife arising from Order 1 be satisfied in the first instance from the funds held in the trust account of the wife’s solicitors pursuant to Order 1 dated 24 October 2024, up to the amount which exhausts those funds, and thereafter for any balance owing by the wife and unpaid, by the wife.

3. There be no order as to costs of the Application in a Proceeding filed on 22 October 2024.

4. All outstanding applications and responses be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I do not accept these submissions. The equitable claims by the wife were not hopeless or bound to fail. I found that there was a common intention which arguably could have supported a constructive trust, even though this part of the wife’s claim ultimately failed for reasons of proportionality. I am not satisfied the siblings have demonstrated any exceptional factor which would justify indemnity costs.CONCLUSION I am satisfied that there should be a costs order in favour of the siblings. However, I am further satisfied that this costs order should be for a proportion only of their costs as agreed or assessed for both the substantive proceedings and their application for costs. In light of the wife’s parlous financial circumstances the appropriate proportion is 50 per cent. The funds of $100,000 held in the trust account of the wife’s solicitors, pursuant to the orders of 24 October 2024, should be the source of payment in the first instance. The costs of the siblings’ Application in a Proceeding filed on 22 October 2024 is also to be determined with their costs application against the wife. No submissions were made regarding the costs of the application filed on 22 October 2024, accordingly each party shall bear their own costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 482 of 2021
Judgment of:	HARPER J
Date of judgment:	19 December 2024
Catchwords:	FAMILY LAW – COSTS – Where the siblings of the husband were joined as Second and Third Respondents (“the siblings”) in the substantive proceedings by the wife – Where the siblings seek costs of proceedings on an indemnity basis against the wife – Where $100,000 of the adjustment payment by the husband to the wife pursuant to the final orders is held on trust as security for the siblings’ costs application – Where the wife was wholly unsuccessful in her equitable claim against the siblings – Indemnity costs not established – Wife to pay 50 per cent of the siblings’ costs of proceedings and the application for costs on a party/party basis as agreed or assessed – Payment in first instance to be from funds held on trust by wife’s solicitors.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 4, 79, 117 Civil Procedure Act 2005 (NSW) s 98 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases cited:	Abano & Abano (No 2) [2024] FedCFamC1F 630 Atkins & Hunt (Costs) [2017] FamCAFC 131 Berfield & Berfield [2024] FedCFamC1F 193 Berfield & Berfield (No 2) [2024] FedCFamC1F 573 Berfield & Berfield (No 3) [2024] FedCFamC1F 714 Harris & Dewell and Anor (No 2) (2018) FLC 93-863; [2018] FamCAFC 180 Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Prantage & Prantage (Costs) [2014] FamCA 850
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of last submissions:	21 November 2024
Date of hearing:	On the papers
Place:	Sydney
Solicitor for the Applicant:	Marsdens Law Group
The First Respondent:	Did not participate
Counsel for the Second and Third Respondents:	Mr Katsinas
Solicitor for the Second and Third Respondents:	Simone Legal

SYC 482 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS B BERFIELD Applicant
AND:	MR C BERFIELD First Respondent MR D BERFIELD Second Respondent MS E BERFIELD Third Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	19 DECEMBER 2024