Bhatt & Acharya (Costs)
[2017] FamCAFC 71
•22 March 2017
FAMILY COURT OF AUSTRALIA
| BHATT & ACHARYA (COSTS) | [2017] FamCAFC 71 |
| FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks his costs of a discontinued appeal – Where the appeal, having been discontinued, was wholly unsuccessful – Where offers of settlement had been rejected by the respondent – The parties’ conduct of the proceedings – Financial positions of the parties – Respondent ordered to pay the applicant’s costs of the discontinued appeal and the application for costs. |
| Family Law Act 1975 (Cth) s 117 |
| Lenova & Lenova (Costs) [2011] FamCAFC 141 |
| APPLICANT: | Mr Bhatt |
| RESPONDENT: | Ms Acharya |
| FILE NUMBER: | SYC | 5732 | of | 2015 |
| APPEAL NUMBER: | EA | 62 | of | 2016 |
| DATE DELIVERED: | 22 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Aldridge & Watts JJ |
| HEARING DATE: | 22 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 April 2016 |
| LOWER COURT MNC: | [2016] FamCA 374 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice and Mr Reeves |
| SOLICITORS FOR THE APPLICANT: | Doolan Wagner Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Avery-Williams |
| SOLICITORS FOR THE RESPONDENT: | Coutts Solicitors & Conveyancers |
Orders
The respondent be granted leave to rely upon the Response to an Application in an Appeal and affidavit filed 21 March 2017.
The respondent pay the applicant’s costs of the appeal, including the cost of the application for costs, as agreed or in default of agreement as assessed.
The costs payable pursuant to Order 2 be payable upon finalisation of the substantive proceedings for property settlement and from the wife’s entitlement if any.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhatt & Acharya has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2016
File Number: SYC 5732 of 2015
| Mr Bhatt |
Applicant
And
| Ms Acharya |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
By an Application in an Appeal filed on 14 March 2017 Mr Bhatt (“the applicant”) seeks an order for the payment of his costs of a discontinued appeal.
On 29 April 2016 Ms Acharya (“the respondent”) filed a Notice of Appeal against interim property and spousal maintenance orders made by Loughnan J on 27 April 2016.
The appeal proceeded in the usual course. The respondent filed and served her Summary of Argument on 29 August 2016 and the applicant filed his Summary of Argument in reply on 5 October 2016. The appeal was allocated a hearing date of 22 March 2017.
The respondent filed a Notice of Discontinuance of her appeal on 24 February 2017.
In the ordinary course, parties to proceedings under the Family Law Act 1975 (Cth) are to bear their own costs (s 117(1)). However, where the court is of the opinion that there are circumstances that justify it, the court may make such an order as the court considers just (s 117(2)). In considering whether to make such a costs order the court must have regard to the matters set out in s 117(2A).
The applicant raised four matters in support of his application for costs.
The first is that the appeal was wholly unsuccessful because it was discontinued (s 117(2A)(e)). That is undoubtedly correct.
The respondent submitted that as there has been no hearing on the merits, this consideration carries little weight. I disagree. The respondent did not succeed in overturning any of the orders made by the primary judge. It has long been accepted in this court that a discontinued appeal is regarded as one that has been wholly unsuccessful.
The second matter is that the applicant made reasonable offers of settlement to resolve the appeal, which should have been accepted (s 117(2A)(f)).
On 29 September 2016 the applicant’s solicitors wrote to the respondent proposing that if the respondent elected to discontinue the appeal and two applications in a case she then had before the primary judge, then no order as to costs would be sought. The letter was marked as “without prejudice save as to costs”.
In an open letter dated 19 February 2017, as part of a more extensive suite of proposals, this offer was repeated.
For her part, the respondent relies upon written offers of settlement in relation to the then outstanding applications in a case. The first two offers were made on 21 December 2016 and 7 February 2017 and dealt only with the applications in a case. The third, made on 16 February 2017, proposed many orders, including an order that all pending interim applications, including the appeal, be withdrawn. None of the offers proposed any orders dealing with the costs of the applications or the appeal.
The offer made by the applicant on 19 February 2017 was therefore in response to the last offer by the respondent. Whilst it goes beyond the appeal and proposed orders in relation to the applications in a case, so too did the respondent’s offer. Significantly, the two applications in a case were then discontinued by the respondent.
If the applicant’s offer had been accepted, the appeal would have been resolved at an early stage without the parties incurring significant legal costs.
I do not consider that the fact that the respondent was without legal representation until November 2016 to be of any relevance to the issue of costs.
This consideration supports an order for costs.
The applicant submits that he is not in a strong financial position (s 117(2A)(a)). His evidence is that he has a weekly income of $4,091 with expenses that slightly exceed that. He has assets of $1,906,125 and liabilities of $943,109. We infer that the bulk of these assets consist of the former matrimonial home at Suburb B, in which the respondent presently resides. It is the subject of the yet to be completed property proceedings between the parties.
The applicant says that he pays the respondent $415 each week as spousal maintenance.
The respondent asserts that her only asset is $500 held in a bank account. She says that she owes a credit card provider $5,000. Her income consists of $1,800 per month of spousal maintenance and $1,000 per week from house sharing, leading to a weekly income I calculate to be $1,450. She says that her weekly expenses are $1,401. The property proceedings between the parties are yet to be determined. The parties dispute the accuracy of the other’s assertions as to their property and liabilities.
On their face, and on the assumption that the net property of the applicant will be divided between the parties in some way, neither party would appear to be in a particularly strong financial position. Nonetheless, impecuniosity is, of itself, no bar to a costs order, otherwise an impecunious litigant would be free to pursue meritless applications at will: Lenova & Lenova (Costs) [2011] FamCAFC 141.
However, as these matters remain in dispute this consideration does not carry significant weight.
The applicant submits that the conduct of the proceedings below by the respondent is a relevant consideration that supports his application (s 117(2A)(g)). I agree.
The evidence is that between 24 November 2015 and 30 August 2016 the respondent filed 10 applications in a case or in an appeal, including amendments. All but one was discontinued by her. She also filed an appeal against interim orders made by Loughnan J on 27 April 2016, which was later withdrawn. There is, therefore, a history of fruitless applications taken by the respondent.
In my opinion these matters firmly support an order that the respondent pay the applicant’s costs of the appeal and the application, to be assessed if they cannot be agreed. Given the financial circumstances of the parties, I would propose that they be payable at the conclusion of the property settlements, and out of the funds payable to the respondent, if there are any.
Thackray J
I agree with the reasons of Aldridge J.
We were presented with a schedule of costs, which is Exhibit 2, seeking an amount of $38,545. It was provided quite recently. The amount is in dispute and, speaking for myself, I do not feel in a position to determine what would be an appropriate amount. I therefore agree particularly with the proposition that the costs will need to be assessed if they are not agreed.
Watts J
I would also make the orders proposed by Aldridge J and for the reasons stated by him and Thackray J.
Thackray J
For those reasons, there will be the following orders:
1.The respondent pay the applicant’s costs of the appeal, including the cost of the application for costs, as agreed or in default of agreement as assessed.
2.The costs payable pursuant to Order 1 be payable upon finalisation of the substantive proceedings for property settlement and from the wife’s entitlement if any.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Aldridge & Watts JJ) delivered on 22 March 2017.
Associate:
Date: 26 April 2017
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