Bryer and Bryer and Anor

[2012] FamCA 884

FAMILY COURT OF AUSTRALIA

BRYER & BRYER AND ANOR [2012] FamCA 884

FAMILY LAW – COSTS – where the estate of the second respondent sought an order that the husband and wife pay the costs thrown away by the compromise reached in relation to the s 79 proceedings between the applicant and first respondent – where an order for costs made in favour of the estate of the second respondent on a party/party basis against the husband and wife in equal portion.

Family Law Act 1975 (Cth) s 79, 117(2), s 117(2A)

APPLICANT: Ms A Bryer

FIRST RESPONDENT: Mr B Bryer

SECOND RESPONDENT: Estate of the late Ms C Bryer

FILE NUMBER: SYC 5342 of 2010

DATE DELIVERED: 31 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 31 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

SOLICITOR FOR THE FIRST RESPONDENT: Diamond Conway Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Paltos Briggs Family Lawyers

Orders

1. Pursuant to Rule 6.15 that Ms D is appointed the legal representative of the second respondent being the estate of the late Ms B Bryer.

2. That the husband and the wife shall forthwith serve upon the solicitor for the second respondent a copy of the agreement entered into between them by which they compromised these proceedings.

3. That the husband and wife pay in equal portion the costs incurred by the estate on a party/party basis in these proceedings such costs to be agreed within twenty eight (28) days or assessed and paid within twenty eight (28) days of agreement or assessment.

4. That the proceedings constituted by the Response filed by the late Ms C Bryer on 17 February 2011 are transferred to the Supreme Court of New South Wales.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryer & Bryer 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 SYDNEY

FILE NUMBER:

Ms A Bryer

Applicant

And

Mr B Bryer

First Respondent

And

Estate of the late Ms C Bryer

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. On 8 August 2012 in these proceedings, there being no appearance by or on behalf of the husband, I made orders that:

   1.The second respondent has leave to make an oral application for costs and a direction that the husband and wife disclose to the second respondent the terms and provide a copy of the Terms of Settlement.

   2.Those applications are adjourned for hearing to 9.30 am on 31 August 2012

   3.        The second respondent’s costs of today are reserved.

3. For the reasons outlined by the solicitor for the second respondent I am satisfied that a copy of the agreement entered into between the husband and the wife otherwise known as the ‘Terms of Settlement’ should be provided to the second respondent being the estate of the late Ms C Bryer.

Application for Costs by the second respondent

1. Before the Court is an application by the estate of the late Ms C Bryer (“the late Ms Bryer”) for an order that the husband and the wife pay the second respondent’s costs.

2. The late Ms Bryer is the husband’s mother. She was joined on the application of the wife to proceedings brought pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings have been compromised by the husband and the wife executing an agreement, the details of which are not before the Court. Suffice to say, it would appear common ground that the agreement deals with the entirety of the husband and wife’s property and does not purport to deal with the property of the late Ms Bryer.

3. At issue between the husband, the wife and the estate is, as I understand it, an interest asserted by the estate in property/the legal ownership of which sits with the husband and the wife.

4. The effect of this is that, in relation to the s 79 proceedings, no orders have been made as a consequence of the joinder of the estate. So that it is clear, the estate is not a party to the agreement executed between the husband and the wife.

5. In those circumstances, it must follow that the wife has been wholly unsuccessful in the relief she sought against the estate.  In a similar vein, the husband has not obtained relief against the estate and he too has been wholly unsuccessful. 

6. It is not to the point that the estate was joined as a matter of necessity.  Necessity only arose because it was asserted that an order should be made by this Court against the estate.  This did not happen.

7. Section 117(2) of the Act provides that, in proceedings under the Act, parties shall bear their own costs. That is, unless there are circumstances which justify an order for costs.

8. I find that the failure of the husband and the wife to obtain an order pursuant to s 79 of the Act against the estate constitutes justifying circumstances.

9. It is contended for the wife that consideration of costs as pressed by the estate is premature. Alternatively, that because the estate sought, in the exercise of the Court’s accrued jurisdiction, relief against the husband and the wife, the estate too has been wholly unsuccessful and thus would fail on the merits of the application. Further, that the costs incurred to date must be seen as forming part of the claim made by the estate which, it is common ground, will now be transferred to the Supreme Court. This later submission was initially attractive. However, on balance, I accept the submission made by the solicitor for the estate that the effect of the husband and wife compromising the s 79 proceedings means that the estate must, in effect, start its action again in the Supreme Court. It follows that the costs thus far incurred are effectively thrown away as a consequence of the compromise reached in relation to the s 79 proceedings. Those circumstances lend further support to an order for costs in favour of the estate and weigh against this aspect of the matter being adjourned.

10. Turning then to the balance of the matters that must be considered in relation to s 117(2A).  The only other matter would seem to be the financial circumstances of the parties.  Although I am not privy to the agreement, it is apparent from the material filed thus far that the parties are people of considerable wealth.  The distinction between their respective financial positions is not such that it would influence whether an order for costs should be made and if so in what proportion. 

11. Reference is made by counsel for the wife to paragraph 46 of the agreement entered into between the husband and the wife the complete details of which, as mentioned, are not before the Court.  The gravamen of paragraph 46 is that there is an agreement that the husband and wife will do what they can to uphold a covenant in an agreement entered into between the husband and his mother in 2007 to the effect that the late Ms Bryer would not alter her will.  It is, as I understand it, common ground that the will has been altered.  However, more to the point there is an agreement that the costs of upholding the terms of the covenant will be shared equally by the husband and the wife.  It is that issue which underpinned the steps taken by the wife in this jurisdiction.  In my view, it would be neither just nor equitable to the wife if the husband was to have the benefit of her efforts thus far to achieve what he too hopes to achieve in relation to his mother’s estate, but not contribute towards her expense.

Conclusion 

1. On that basis I am persuaded that whatever order for costs is made, those costs should be shared by the husband and wife equally. 

2. As to the argument advanced that consideration of costs of the s 79 proceedings is premature, that can easily be dispensed with. The proceedings are to be transferred to the Supreme Court and it would be quite unfair to transfer the proceedings with the issue of costs incurred in the Court left unaddressed.

3. For these reasons, I am satisfied an order for costs should be made in favour of the estate of the late Ms Bryer against the husband and the wife in equal portion.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 31 August 2012.

Associate:     

Date:              25 October 2012