Brie & Brie
[2022] FedCFamC1F 156
Federal Circuit and Family Court of Australia
(DIVISION 1)
Brie & Brie [2022] FedCFamC1F 156
File number(s): BRC 4255 of 2021 Judgment of: BAUMANN J Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – COSTS – Where the wife sought an order for indemnity costs – Where the husband was wholly unsuccessful – Where the husband’s conduct throughout the proceedings justifies an order for costs – Indemnity costs ordered in a fixed sum Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Brie & Brie [2021] FamCA 389
Brie & Brie (No. 2) [2021] FamCA 532
Kohan & Kohan (1993) FLC 92-340
Yunghanns v Yunghanns [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 12 Date of last submission/s: 29 September 2021 Date of hearing: On the papers Place: Brisbane Solicitor for the Applicant: Quinn Family Law For the Respondent: Litigant in person ORDERS
BRC 4255 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRIE
Applicant
AND: MR BRIE
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 March 2022
THE COURT ORDERS:
1.That the husband, Mr Brie, shall pay to the wife, Ms Brie, by 30 April 2022, the sum of $35,000 as a contribution to the costs of the wife incidental to the husband’s Initiating Application filed 1 April 2021.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brie & Brie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Despite Final Orders by consent as to property proceedings being made on 7 November 2017, further litigation between the wife, Ms Brie (“the wife”), and the husband, Mr Brie (“the husband”), became necessary when the husband failed to comply with those orders.
The wife’s affidavit filed 14 July 2021 correctly sets out the journey thereafter undertaken at paragraphs 3 to 14, which resulted in further consent orders being made on the morning of the final hearing on 9 October 2019 (“the 2019 orders”). Those orders provided an agreed process for an independent third party (B Accountants) to be appointed as Trustee if the husband failed to meet his obligations to the wife under the 2019 orders. The express right prescribed by Order 17 of the 2019 orders enabled the wife to immediately invoke the self-executing orders where the husband defaulted – as he did.
The engagement of B Accountants under the order and the likely adverse effect this would have upon the expansive business interests of the husband (and the collateral effect on the business associates, including his brother) were such that the husband brought an urgent Initiating Application seeking to stay the effect of the 2019 orders and further vary the terms of said order to allow him more time to pay the remaining capital sum of $2,000,000.
After hearing argument from Counsel on 21 May 2021, Reasons were delivered on 17 June 2021 for the order made dismissing the husband’s Application (see Brie & Brie [2021] FamCA 389). As those reasons identified, a dispute arose as to the persons entitled to the sum of $200,000 deposited into the trust account of the then solicitors for the husband, however after giving other interested parties a chance to be heard, the Court ordered that $140,000 be paid to the wife and $60,000 be paid to the Trustee, B Accountants ( Brie & Brie (No. 2) [2021] FamCA 532).
Whilst the Court does not know how or if the orders resulted in total compliance or otherwise (the Court not having received any further application by the Trustee, the wife or the husband), on 14 July 2021, the wife filed an Application in a Case seeking the following orders:
1.That the Respondent pay the Applicant’s costs of the dismissal of the Respondent’s Initiating Application (Family Law) filed on 1 April 2021, on an indemnity basis in the amount of $28,847.73.
2.That the Respondent pay the Applicant’s costs of and incidental to this Application on an indemnity basis.
In support of this Application, the wife filed her affidavit affirmed 14 July 2021. The Court ordered on 10 September 2021 for the parties to file written submissions as to costs.
The wife’s written submissions were filed on 22 September 2021, within the time ordered by the Court. The husband has elected not to file any written submissions, due by 8 November 2021. The reasons which follow have been prepared on the basis that submissions would be considered in chambers.
principles
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party should bear their own costs of proceedings, however if the Court is satisfied that the circumstances justify an order for costs, after considerations of the factors set out in s 117(2A) of the Act, the Court is empowered to make such order as to costs as is just.
In exceptional circumstances, the Court may order costs be paid on an indemnity basis (see Kohan & Kohan (1993) FLC 92-340; Yunghanns v Yunghanns [2000] FamCA 681)
consideration
I adopt paragraphs 6 to 15 of the Applicant wife’s written submissions as follows:
The financial circumstances of the parties
6.The financial circumstances of the parties are plain from the final orders made by consent on 9 October 2019 [Order] and the financial statement of the applicant filed in respect of the failed application and the respondent’s affidavit in support of the costs application.
7.The applicant’s financial circumstances are such that he can pay a costs order in the terms sought.
8.In addition to that position, the Full Court in Lenova v Lenova (Costs) [2011] FamCAFC said at [13]:
[13] Whilst regard is had to the financial circumstances of the respondent wife, she was advised by legal practitioners at each stage of the proceedings. She can, in our view, be seen to have known the risk of refusing to compromise in the face of a written offer made before the appeal was filed. That factor, together with the husband’s success in the appeal, warrants an order for costs being made in favour of the husband.
9.The risk of a costs order against the applicant and in favour of the respondent ought to have been obvious to the applicant and his legal advisers at all times during these proceedings because the application was made at a time when the applicant:
a.was in breach of the Order in a number of respects, only some of which he sought to remedy by the failed application;
b.had a history of breaching orders of this court; and
c.was plainly warned by Justice Baumann when the Order was made that he did not want to be coming back before Your Honour having breached the Order asking for more time given his history of default (which is what he precisely did by the application)
Legal Aid
10. No party was in receipt of legal aid in respect of these proceedings.
The conduct of the parties to the proceeding
11.The conduct of the applicant in relation to these proceedings has been a history of not complying with orders and already the subject of comment by the court as highlighted in paragraph 9 above.
12.The entire costs of the respondent incurred in respect of the application are a direct result of the applicant’s conduct in breaching the Orders and making the failed application.
Whether the proceedings were necessitated by a failure to comply with previous orders
13.As is plain from the above submissions, the entire application was necessitated because of the applicant’s breach of the Orders and his failed attempt to be excused from such breaches or to circumvent their implementation.
Whether a party has been wholly unsuccessful
14.The applicant has been wholly unsuccessful in these proceedings.
15.The respondents has been wholly successful in the proceedings.
(As per original, footnotes omitted)
To this I would add, having been involved as the Judicial Officer in the management and determination of these proceedings since and including the making of consent orders in 2019 and the failed attempts by the husband to starve off the invertible, that my overall perception from the way the husband conducted his proceedings was akin to leaving things to the last moment, only to then seek to negotiate an outcome which might have met some commercial objective. The husband is a highly successful businessman used to making commercial arrangements involving many millions of dollars, who at times treated the wife and this Court’s orders with only passing respect.
The wife was, at all times, represented by lawyers who showed attention to detail and to time limits. Certainly the orders of 2019 did provide some significant self-executing powers which the husband knew existed. Even when, after 1 April 2021 deadlines had been reached, the husband’s response to the Trustee, B Accountants, was ineffective. It is to be noted that the significant impact of Order 17 was not available to the wife until a required three month period had expired. Why the husband continued to leave his response always to the very last moment is a mystery.
conclusion
I am satisfied that the combination of the husband’s conduct and also where he was wholly unsuccessful justify an order for costs, and that those costs should be calculated on an indemnity basis. I propose to fix costs in the sum of $35,000. As a result, I make the orders which appear at the commencement of these reasons.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 March 2022
0
3
0