Bondelmonte & Bondelmonte & Ors (No 2)

[2018] FamCAFC 249

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE AND ORS (NO. 2)   [2018] FamCAFC 249

FAMILY LAW – APPEAL – COSTS – Application for costs by the first respondent following a successful appeal – Where the appellant seeks costs in the amount of $45,000 – Uncertainty as to whether the sum sought is on an indemnity or party-party basis – Where the first respondent was wholly unsuccessful – Offer of compromise made by the appellant – Order for costs appropriate in circumstances of clear error by the primary judge – Wife found not to be impecunious – No proper basis for allowing costs in the amount of $45,000 – Order for costs made in the amount of $7,500.

Family Law Act 1975 (Cth) s 117

Boldemonte & Bondelmonte and Ors [2018] FamCAFC 179

APPELLANT: Ms LL Bondelmonte

FIRST RESPONDENT: Ms Bondelmonte

SECOND RESPONDENT: Mr V Bondelmone

THIRD RESPONDENT: Q Finances Pty Limited

FOURTH RESPONDENT: KK Pty Ltd

FIFTH RESPONDENT: D1 Pty Ltd

SIXTH RESPONDENT: ABC Finances Pty Limited

FILE NUMBER: SYC 4839 of 2011

APPEAL NUMBER: EA 5 of 2018

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: In chambers

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 15 November 2017

LOWER COURT MNC: [2017] FamCA 924

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT: Braddon Marx Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Todd

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance

SECOND, THIRD, FOURTH, FIFTH AND SIXTH RESPONDENTS: No appearance

Orders

1. The first respondent pay the appellant’s costs of and incidental to the appeal in the sum of $7,500 within twenty-eight (28) days.

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 Bondelmonte & Bondelmonte and Ors (No. 2) 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 5 of 2018
File Number: SYC 4839 of 2011

Ms LL Bondelmonte

Appellant

And

Ms Bondelmonte 

First Respondent

And

Mr V Bondelmonte 

Second Respondent

And

Q Finances Pty Limited

Third Respondent

And

KK Pty Ltd

Fourth Respondent

And

D1 Pty Ltd

Fifth Respondent

And

ABC Finances Pty Limited

Sixth Respondent

REASONS FOR JUDGMENT

1. Ms LL Bondelmonte (“the appellant”) appealed against orders made by Watts J on 15 November 2017.  The orders concerned the inspection of documents relating to third parties and relevantly to this appeal, the inspection of the appellant’s documents relating to proceedings conducted in the Federal Court of Australia. 

2. The issue of the inspection of documents arose in the course of proceedings between the first respondent, Ms Bondelmonte (“the wife”) and her former husband Mr V Bondelmonte (“the husband”).

3. As against her former husband, the wife asserted that earlier property settlement orders made by consent were improperly obtained and sought that they be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). In preparation of her case, the wife sought to inspect documents produced by the Federal Court to the Family Court of Australia. Inspection was opposed and the application to inspect was heard by the primary judge.

4. The appellant was not a party to the Federal Court proceedings nor is she a party to the wife’s proceedings in the Family Court.  After the proceedings in the Federal Court concluded, the appellant was subject to an application for freezing orders in relation to the proceeds of sale of property owned by her.  Documents relating to that application were amongst those produced to the Family Court and to which the wife sought access which was opposed by the other parties and ultimately rejected by the primary judge.

5. The primary judge found that the wife had not demonstrated that the appellant’s documents were relevant to her application against the husband and access to those documents was refused.  In his orders, the primary judge set out the documents to which that ruling related.

6. The conclusion that the appellant’s documents were not relevant to the wife’s application was not challenged. 

7. However, the primary judge’s order did not cover all of the appellant’s documents which would be subject to his order.  Thus, pursuant to a grant of leave, the appellant successfully appealed and the Full Court varied his Honour’s order to include the omitted documents (see Bondelmonte & Bondelmonte and Ors [2018] FamCAFC 179).

8. The appellant sought an order for costs against the wife and directions were made for the filing of written submissions.  No submissions were filed on behalf of the second to sixth respondents.

9. The appellant argued that a costs order should be made in her favour because the appeal succeeded, or, in terms of s 117(2A)(e) of the Act, the wife was wholly unsuccessful in resisting the appeal.

10. After the hearing of the appeal and while judgment was reserved, the solicitor for the appellant approached the wife through her solicitors seeking her agreement to concede the appeal and pay the appellant’s costs of $25,000.  An email of 30 August 2018 foreshadowed that if the appeal was successful, an application for costs would be made in the sum of $47,258.67 being the costs incurred by the appellant.  There was no agreement.

11. Thus, the appellant contends that it is appropriate that the wife pay her costs in the sum of $45,000.

12. The submissions filed on behalf of the wife, while acknowledging the offers of compromise, sought to rely on passages [25] and [40] in the reasons of the Full Court which point to the somewhat confused manner in which the relevant documents were identified for the primary judge, to argue against a costs order being made.  Those passages highlight the difficulty that perhaps attended the primary judge’s articulation of what documents were comprehended in his order and led to the error.  That posited confusion does not explain nor, in our opinion does it moderate the wife’s failure to accept the clear offers of compromise when it was clear that his Honour’s order did not refer to all documents which unarguably fell within the ambit of his finding and order.

13. It is instructive in this regard to set out other passages from the Full Court’s reasons which deal with the basis of the wife’s opposition to the appeal:

    37. Finally it was argued by the wife that the primary judge had afforded the appellant a number of opportunities in which to identify the documents which related to the appellant and contended that this was done in the affidavit of the solicitor of 11 November 2016 and “Exhibit 34 was in fact the document provided in answer to the orders made by his Honour [on 29] March 2017”.

    38. We have some difficulty with this submission.  First, in as much as the submission is relevant to the appellant’s compliance with the order of 29 March 2017, as we understand the evidence, the document which became Exhibit 34 was that which was attached to the email of the appellant’s solicitor on 6 November 2017 to which his Honour referred in [10.9].  It is in this document that the appellant contends that all of the documents relevant to the injunction sought against the appellant was listed.  A reading of the list of exhibits makes that plain. 

    39. However it is unnecessary to disentangle the detail of this submission because the thrust of the wife’s opposition to the appeal is this: that the appellant, notwithstanding having been given opportunities to do so, failed  to clearly identify the documents during the trial and despite the primary judge at [40] concluding that the wife could not inspect the “material relating to real property held by the [appellant]”, the appellant therefore should be bound to the affidavits identified in the solicitor’s affidavit and cannot now assert error in his Honour’s failure to include all of the relevant documents.

    40. As we have said, the hearing was attended by considerable confusion as to the identification of documents and the articulation of the basis for objecting to their being inspected.  That confusion permeated the identification of the “material” relating to the injunction proceedings against the appellant and it is perhaps little wonder that his Honour failed to include all of the relevant documents.

    41. Nevertheless his Honour’s finding at [40] was clear and encompassed all of the documents relating to the application for freezing orders against the appellant.  In making the challenged order he failed to include seven documents which were uncontentiously referable to the proceedings against the appellant and thus we find his Honour erred. 

    (Footnotes omitted)

14. In our view, the wife’s opposition to the appeal was if not doomed to failure, far from certain.  In those circumstances, her failure to accept the appellant’s offer in circumstances of what was clearly a mistake of the primary judge should in our view sound in an order for costs against her.   

15. It was further submitted that the wife was impecunious.  It was contended that her impecuniosity is “uncontroversial”.  In support of the asserted lack of controversy, counsel for the wife referred to paragraph ten in an affidavit sworn on 2 January 2018 on the appellant’s behalf in an interlocutory stage in the appeal.  The passage relied on is, relevantly; “the Respondent Wife, who is self-represented, is believed to be impecunious and the Applicant would have very little chance of recovering any costs against her”.  In our view an expression of a “belief” falls far short of a concession as to the fact.

16. Recognising that the asserted concession may be unpersuasive, the wife’s submissions relied on a Financial Statement sworn by her on 28 August 2013 to demonstrate her “impecuniosity”.  The wife’s counsel acknowledged in those submissions that time had passed since the affidavit was sworn, however the submission continued and asserted “little has significantly changed” in terms of her financial position.  It was however said that the wife no longer held the real estate to which the Financial Statement refers and the submission comments that her real estate holdings are a matter of “public record” of which the appellant would be aware.  We, on the other hand, were none the wiser.

17. Somewhat curiously, on 16 November 2018, the wife under her own hand filed a further submission on the question of costs titled “Addendum to the submissions on costs on behalf of the first respondent filed on 16 October 2018”.  It was filed with the consent of all parties to the proceedings and asserts that it is filed; “with a view to assisting the Full Court by providing current information in respect of the First Respondent’s financial circumstances”.

18. The assistance is in this form:

    ·On 5 October 2018 the wife agreed with the Australian Tax Office (“the ATO”) that, subject to agreement by the ATO, the liquidators and the husband in relation to legal disputes between them and on the payment by the husband to the ATO and the liquidators of a settlement sum, the sum of $510,000.00 would be paid to her.  The submission notes that the wife is not aware of whether the husband has made any payment.

    ·The wife has, since 9 October 2018, been employed full time and receives a salary of $65,000 gross per year.

    ·As at 13 November 2018 the wife held $138,988 in her bank account.

19. No submission was made attempting to reconcile the wife’s submission of

    
    

    16 November 2018 with that filed on her behalf on 16 October 2018 asserting that she was “impecunious” and which made no mention of her employment.  For that matter, nor does the “Addendum” indicate what was in the wife’s bank account at the date of the earlier submission.

20. The submission filed on the wife’s behalf on 16 October 2018 fell far short of persuading us either that the wife was impecunious or that her financial position in 2013 had any relevance to our consideration as to costs.  It now appears that our hesitation in accepting the submission of 16 November 2018 was well founded.

21. Apart from the contention that the appellant sought costs in the order of $45,000, we do not understand how that sum was derived, for example whether it reflects costs on the relevant scale and whether they are calculated as party/party costs or solicitor/client costs.  There is thus no proper basis advanced as to why that sum would be appropriate.  In our view given the very limited scope of the appeal, the order sought is not reasonable and we will order the wife to pay the appellant’s costs of and incidental to the appeal in the sum of $7,500.  

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 13 December 2018

Associate: 

Date:  13 December 2018