BUSONI & BUSONI

[2017] FamCA 167

FAMILY COURT OF AUSTRALIA

BUSONI & BUSONI [2017] FamCA 167

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Where costs for two interim applications sought by the applicant – Where the applications by the applicant were necessitated by the conduct of the respondent – Where the applicant had no alternative but to make the applications – Where there are justifiable circumstances to make an order for costs – The respondent pay the applicant’s costs as agreed or on a party/party basis.

Family Law Act 1975 (Cth) s 117

Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Busoni

RESPONDENT: Mr Busoni

FILE NUMBER: PAC 4490 of 2014

DATE DELIVERED: 22 March 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 10 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Munk of Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT: Mr Stubbs of Harris Freidman Lawyers

Orders

1. That the husband pay the wife’s costs of and incidental to the Applications in a Case filed by her on 7 May 2015 and 8 October 2015, excluding costs relating to 16 July 2015, with such costs to be as agreed, if agreed within one month from this date, or otherwise as assessed on a party/party basis.

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 Busoni & Busoni 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4490  of 2014

Ms Busoni

Applicant

And

Mr Busoni

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the wife’s application for costs arising out of two interim applications in relation to these ongoing proceedings in so far as they relate to property.

The first Application in a Case

1. On 7 May 2015 the wife filed an Application in a Case seeking orders facilitating financial disclosure by the husband. In support of the application the wife relied upon the affidavit of her solicitor filed 7 May 2015.

2. The wife’s application was first listed before a Registrar on 23 June 2015. On that day orders as to financial disclosure sought by the wife in her Application in a Case were made by consent with compliance to be within 14 days. Otherwise, the wife’s costs of 23 June 2015 were reserved.

3. The Application in a Case was adjourned to 16 July 2015, presumably as to the husband’s compliance.

4. On 16 July 2015 the wife contended before the Registrar that the husband had failed to comply with the previous orders and by consent time for the husband’s compliance was extended for a further seven days with the wife granted leave to relist in the event of non-compliance. The husband was ordered to pay the wife’s costs of 16 July 2015 in the sum of $350.00 within three months.

5. It appears that orders made 16 July 2015 did not finalise the application but that it remained pending.

The Second Application in a Case

1. The wife filed a further Application in a Case on 8 October 2015 seeking orders that would facilitate the inspection and valuation of two real estate properties the subject of the parties’ property applications. In support of the application the wife relied upon an affidavit by her solicitor filed 8 October 2015.

2. This application was listed before a Registrar on 24 November 2015. On that day the wife was directed to file and serve an Amended Application in a Case and any further affidavit to be relied upon by 2 December 2015 and the husband was directed to file and serve an Amended Response to the Application in a Case and any affidavit material to be relied upon by 9 December 2015.

3. The wife’s Application in a Case was then stood over to the duty list call over on 10 December 2015 on which day the application was further adjourned for call over to 9 February 2016.

4. Proceedings were otherwise listed before the Court on 9 February 2016 as to parenting and on that day further orders were made by consent in relation to financial issues as follows:

   9.That by 4 pm on the 1 March 2016, the husband provide to the wife’s solicitors replies and documents as follows:

   a.Details as to the requirements of Council to issue an occupation and or 149 Certificate for the property, including particulars as to what is required ([B Street, Suburb C]).

   b.Cheque butts for [D Pty Ltd], cheque account for the period from 1 January 2008 to the date hereof. 

   c.Particularisation and details of the husband’s various contracts or works undertaken by him individually or undertaken by any of entities in which he has an interest whether it be legal or equitable including details of the particular site and location of such work, whether such work was undertaken by the husband alone or by his various business entities for the period 1 January 2011 to the date hereof.

   d.Confirmation as to whether the husband is operating any of his prior corporate entities and if so which one and if not

   i.The current employer of the husband;  

   ii.His current remuneration from all and any sources or by way of the payment of funds whatsoever nature to the husband or to entity or person on his behalf ; and

   iii.A copy of any contract of employment, if applicable.

   e.Confirmation as to whether the husband has or has previously paid for any hunting rights.  If so, please provide the details of the date, the amount paid and to whom it was paid.

   f.The husband’s credit card statements for either the husband or for any entity in which he has an interest for the period 1 January 2008 or such earlier date as your client holds to the date hereof.

   g.Particulars of any loans made by the husband for the period 1/1/2008 to any person or entity including details of the amount and terms and the details of the payment made and details of any sums outstanding, referring a contention that the husband loaned out one million dollars.

   10.That the parties shall forthwith instruct [Mr E] to update his valuation of the property, [B Street, Suburb C]

   11.In relation to the attached a schedule in respect of cheques drawn on the [D Pty Ltd] account.  Please provide the reason for each advance including copies of all documents relating to the transactions in the husband’s possession, custody or control as to same.

   IT IS NOTED THAT:

   A.The orders made today relate to the former matrimonial home at [B Street, Suburb C].

   B.The Single Expert has completed a valuation of the commercial property and the parties contemplate an update as to the value of the matrimonial home…

5. The wife’s application was then adjourned to 14 March 2016 before a Registrar.

6. On 14 March 2016 orders were made by consent extending the time for the husband’s compliance with orders made on 9 February 2016, the application was adjourned to 17 May 2016 and it was ordered that the wife’s costs be reserved generally.

7. On 20 April 2016 the wife filed a further Application in a Case seeking orders effecting a sale of the former matrimonial home at B Street, Suburb C and distribution of proceeds from that sale. This further application was listed on 17 May 2016.

8. On 17 May 2016 further orders were made by consent as to the husband filing and serving a financial statement by 30 May 2016 and further disclosure. It appears that such orders were made in the context of the Application in a Case filed 7 May 2015 that had remained pending.

9. Otherwise, the husband was ordered to file and serve a Response and any affidavit relied upon as to the wife’s further Application in a Case filed 20 April 2000 by 14 June 2016.

10. The application was later resolved by consent. There is no costs issue arising therefrom.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs and is in the following terms:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just..

2. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

3. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

   a)the financial circumstances of each of the parties to the proceedings;

   b)whether any party has legal aid and the terms of any grant of aid;

   c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g) such other matters as the Court considers relevant.

4. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   17.      With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117(2) in "a clear case".

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   (footnotes omitted)

   18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative…

5. These are interlocutory proceedings in which the wife has sought disclosure and discovery of documents in respect of which the husband was at all times under an obligation to disclose. Otherwise, she sought orders that would facilitate valuation of one of the subject properties such a valuation being a fundamental exercise in the preparation of a matter for trial or indeed for consideration of settlement by the parties.

6. It is clear that the wife’s application was precipitated by the husband’s intransigence (for which he blames his then legal representatives) in circumstances where ultimately it became necessary to commence proceedings seeking interlocutory relief.

7. As to the relevant factors:

   a)neither party is in parlous financial circumstances. Indeed ultimate orders for sale of the parties’ real estate property at Suburb C facilitates a release of $100,000.00 to each of them with the balance to remain in trust pending final hearing.

   b)Neither party is in receipt of a grant of legal aid.

   c)The applications by the wife have been necessitated by the husband’s conduct in his consistent failure to comply with his very clear obligations as to disclosure and discovery and to engage in a necessary valuation process. As such the wife had no alternative but to commence the subject applications.

   d)The adjournment of the wife’s applications were necessitated by the husband’s failure to comply with the timetable for disclosure.

   e)Otherwise, there is no other relevant consideration as to the question of costs.

8. In all of the circumstances it is clear that the husband should pay the wife’s costs of and incidental to the two Applications in a Case excluding her costs of 16 July 2015 in respect of which an order has already been made.

9. Orders will be made accordingly.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 22 March 2017.

Associate: 

Date:  21 March 2017