BRATIC & BRATIC

[2015] FamCA 474

FAMILY COURT OF AUSTRALIA

BRATIC & BRATIC [2015] FamCA 474

FAMILY LAW – COSTS – competing costs applications – circumstances justifying costs

Family Law Act 1975 (Cth) ss 117(1), 117(2A)

Bratic& Bratic [2014] FamCA 879
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Bratic

RESPONDENT: Ms Bratic

FILE NUMBER: SYC 5747 of 2013

DATE DELIVERED: 17 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Obradovic

SOLICITOR FOR THE APPLICANT: Trevor Hall of Hall Partners

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: Millie Poljak of Tomasevic Poljak Lawyers

Orders

1. That the wife’s Amended Application in a Case filed 20 November 2014 is dismissed.

2. That the wife shall pay the husband’s costs of and incidental to the interim hearing listed on 17 February 2015 thrown away in a sum agreed or as assessed.

3. That the husband’s application for costs contained in his written outline of submissions dated 16 February 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bratic& Bratic 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 PARRAMATTA

FILE NUMBER: SYC 5747  of 2013

Mr Bratic

Applicant

And

Ms Bratic

Respondent

REASONS FOR JUDGMENT

Introduction

1. Each of the parties are seeking an order for the payment of their costs by the other party in interim proceedings in their property dispute.

2. The wife seeks orders that the husband pay her costs associated with an Application in a Case brought by the husband in July 2014. The husband seeks orders that the wife pay his costs associated with the same application on an indemnity basis.

3. The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.

Background

1. The parties who separated in January 2013 having been married for eight years, but who are not yet divorced, are engaged in property proceedings. Various orders have been made on a number of occasions in interim proceedings, including orders with respect to maintenance and in relation to the sale of properties.

2. Of particular significance to these proceedings are orders made on 2 June 2014 for the sale of the former matrimonial home through a particular nominated estate agent. Following the making of those orders the wife, who was the registered proprietor of this property, continued to deal with a particular salesperson employed by the nominated agent, whereas the husband and his solicitor continued to deal with the principal of that agency. A dispute between the parties arose in relation to the agency agreement and the sale price. It suffices to say that the husband wished to continue to have the nominated agent proceed with the sale, but the wife lost confidence in the agent and wished to have him replaced.

3. On 2 July 2014, the husband filed an Application in a Case seeking orders that the wife be restrained from preventing the selling agent continuing with the sale of the property, that he be appointed as trustee for sale of the property and other associated orders.

4. The wife in her Response sought that the husband’s application be dismissed, and also sought that the Court make orders, including the appointment of an independent real estate agent to sell the property. The wife also sought an order that the husband pay her costs in the proceedings.

5. On 31 July 2014, the parties’ respective applications for interim orders were adjourned to 18 August 2014 to the judicial duty list. The wife was ordered to pay the husband’s costs of and incidental to the interim hearing listed on that day thrown away and it was noted that the parties did not require publication of reasons for this order.

6. The matter was then transferred from the judicial list and came before me on 9 September 2014. I made orders and delivered judgement on 17 October 2014. Some of the orders sought by the wife were made and none of the orders sought by the husband were made.

7. As can be seen from the Reasons for Judgement[1], although each of the parties had sought other orders, such as in relation to a sum of money held in a controlled monies account, the parties only pursued orders related to the sale of the former matrimonial home. In particular, the wife did not pursue her costs application, nor was it dismissed.

   [1] Bratic& Bratic [2014] FamCA 879

The competing costs applications

1. In her Amended Application in a Case the wife seeks orders that the husband pay her costs incidental to the husband’s Application in a Case filed 2 July 2014 in a fixed sum amount of $13,457.57 and $16,300.13 in counsel’s fees incidental to that application. She relies upon a number of her own affidavits and her financial statement as well as an affidavit of her solicitor which sets out the calculations for the fixed sum amount by reference to a costs agreement and annexes the invoice received from the wife’s counsel in relation to various appearances connected to the husband’s application.

2. The wife contends that the circumstances that justify departure from the usual rule arise due to the following matters, being the considerations set out in s 117(2A). The wife contends that she is in stringent financial circumstances, particularly compared to the husband, and that the husband was wholly unsuccessful in his application.

3. The husband argues as a threshold matter that the wife’s Response to his July 2014 Application included an application for an order that the husband pay her costs and that as this order was not pursued nor was the matter adjourned it can be implied that her costs application was dismissed on 9 September 2014.

4. So far as this threshold matter is concerned, I am of the view that it cannot be implied that the wife’s costs application was dismissed. The record indicates that no order was made dismissing all outstanding applications. Rather it appears that the matter was simply overlooked or through inadvertence not dealt with at the hearing.

5. The husband contends that at least part of the costs that the wife is now seeking relate to the appearance on 31 July 2014, including counsel’s fees, and it is not now open to the wife to claim that part of her costs as costs were awarded against her on that day. So far as the wife’s claim generally is concerned, the husband says there are no circumstances that justify the court departing from the general rule that each party should bear his or her own costs.

6. Although the husband did not file a Response to the wife’s Application in a Case, in his written outline of submissions he sought that the wife’s application be dismissed and that the Court make an order that the wife pay his costs on an indemnity basis. Although some of the written submissions filed on the half of the husband were directed to this issue, they were not enlarged upon in oral submissions.

The law & Discussion

1. Orders for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs.  That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the court may make an order for costs if there are circumstances that in the opinion of the court justifies it in doing so.

2. The High Court in the matter of Penfold v Penfold[2] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [2] (1980) 144 CLR 311

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.

4. It is submitted by the wife that the financial circumstances of each of the parties are relevant circumstances. The financial circumstances of the wife are set out in her Financial Statement dated 9 September 2014. A current Financial Statement of the husband was not filed and it is submitted on behalf of the wife that the Court can draw an adverse inference against him on this basis. The husband submits that the parties are in similar financial circumstances at the time of this application by reason of interim orders previously in place.

5. The wife’s submissions in relation to her financial position go beyond her Financial Statement and involve the determination of many matters in dispute which are unable to be determined in this application. For example, the wife asserts that she was summarily dismissed by the husband from the business that they co-founded, and has been unable to secure employment since that date.

6. This is not a matter in my view, where that which is known about the parties financial position is a significant factor in determining what order, if any, should be made as to costs.

7. Neither party in the proceedings is in receipt of assistance by way of legal aid.

8. It is contended on behalf of each of the parties that the opposing party was not successful in the orders sought. However, it is the case that only the husband was wholly unsuccessful in his Application.

9. Neither of the parties contend that the conduct of the opposing party gives rise to any concern for the court or that the proceedings were necessitated by a failure of the party to comply with previous orders. Neither party has made an offer in writing to the other party to settle the proceedings.

10. Ultimately, the only consideration set out in s 117(2A) that has some weight in this matter is that the husband was wholly unsuccessful in the proceedings. Although there is nothing to prevent any one factor being the sole determinant for an order for costs[3], I am not of the view that the fact the husband’s lack of success in the proceedings is sufficient to justify departure from the general rule that each party shall bear his or her own costs.

    [3] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

11. So far as the husband’s application for indemnity costs is concerned, although some of the relevant principles set out in Colgate-Palmolive Company v Cussons Pty Limited[4] are referred to in his written submissions, it is not clear how any of those principles apply in this case.

    [4] (1993) 46 FCR 225

12. For these reasons each of the applications for costs is dismissed.

13. In the course of argument, the husband also sought costs for a court event on 17 February 2015 when the husband and his legal representatives attended court on the day that had been fixed for this hearing. Although the wife’s counsel contacted the court and said that he was running late, the wife and her legal representative did not attend nor was an adjournment sought. In these circumstances, an order will be made for the wife to pay the husband’s costs of and incidental to the interim hearing thrown away on that day.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 June 2015.

Associate: 

Date:  17 June 2015