Byrd and Byrd and Ors
[2013] FamCAFC 35
FAMILY COURT OF AUSTRALIA
| BYRD & BYRD AND ORS | [2013] FamCAFC 35 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was successful ─ Where the Court was of the opinion that the circumstances justified an order for costs to be made against the husband in favour of each of the appellants ─ Where the Court was of the opinion that there was not a sufficient evidentiary foundation to conclude that indemnity costs would be appropriate ─ Husband to pay the appellants’ costs of and incidental to the appeal on a party and party basis. |
| Family Law Act 1975 (Cth) s 117(2A) |
| APPELLANT (SECOND RESPONDENT IN EA 53 OF 2012): | Ms Byrd |
| RESPONDENT (FIRST RESPONDENT IN EA 53 OF 2012): | Mr Byrd |
| SECOND RESPONDENT (APPELLANT IN EA 53 OF 2012): | Mr Y |
| THIRD RESPONDENT (APPELLANT IN EA 53 OF 2012): | Ms D |
| FILE NUMBER: | SYC | 767 | of | 2009 |
| APPEAL NUMBERS: | EA | 51 | of | 2012 |
| EA | 53 | of | 2012 |
| DATE DELIVERED: | 20 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray and Austin JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 206 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT (SECOND RESPONDENT IN EA 53 OF 2012): | Mr Simpson SC |
| SOLICITOR FOR THE APPELLANT (SECOND RESPONDENT IN EA 53 OF 2012): | Newnhams Solicitors |
| COUNSEL FOR THE FIRST RESPONDENT (FIRST RESPONDENT IN EA 53 OF 2012): | Mr Gould |
| SOLICITOR FOR THE FIRST RESPONDENT (FIRST RESPONDENT IN EA 53 OF 2012): | Gibsons Lawyers |
| COUNSEL FOR THE SECOND & THIRD RESPONDENT (APPELLANTS IN EA 53 OF 2012): | Mr Aldridge SC |
| SOLICITOR FOR THE SECOND & THIRD RESPONDENT (APPELLANTS IN EA 53 OF 2012): | Watts McCray |
Orders
Mr Byrd pay the costs of Ms Byrd, Mr Y and Ms D of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Byrd & Byrd and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 51 of 2012 and EA 53 of 2012
File Number: SYC 767 of 2009
| Ms Byrd |
Appellant (Second Respondent in EA 53 of 2012)
And
| Mr Byrd |
First Respondent (First Respondent in EA 53 of 2012)
And
| Mr Y |
Second Respondent (Appellant in EA 53 of 2012)
And
| Ms D |
Third Respondent (Appellant in EA 53 of 2012)
REASONS FOR JUDGMENT
COSTS
When delivering judgment in the substantive appeal in this matter on 30 October 2012, the Court reserved the costs of the appeal. On 9 November 2012 Mr Y, the first appellant in EA 53 of 2012, and Ms D, the second appellant in EA 53 of 2012 (“the professional advisors”) sought that Mr Byrd, the respondent to the appeal (“the husband”) pay their costs of and incidental to the appeal on an indemnity basis, and that the Court quantify such costs. The basis upon which it was submitted by their then learned Senior Counsel that the professional advisors should be entitled to costs was that the appeal was “entirely successful” as it undoubtedly was.
Ms Byrd, the appellant in EA 51 of 2012 (“the wife”) also sought an order for costs on the basis that the husband was “unsuccessful in his efforts to uphold the challenged Order” of the trial Judge.
Senior Counsel for the husband opposed the making of an order for costs against the husband on a number of bases. The first was that none of the appellants had filed a financial statement, and that the Court thus “could not proceed on the basis of a summary conclusion that the circumstances of each or both of them could not be relevant”.
The terms of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) to which Senior Counsel for the husband referred, require that the Court “shall have regard” to the financial circumstances of each of the parties to the proceedings.
It was submitted on behalf of the professional advisors with respect to the husband’s financial circumstances:
8.... the question of the Husband’s capacity to meet the order for costs, the Second and Third Appellants request that the Full Court has regard to the most recent form 13 Financial Statement filed by the Respondent on 21 September 2011, sworn 20 September 2011 attached to these submissions. It discloses...:
A.The Husband’s income is asserted to be $16,928 per week
B.The Husband’s expenditure is $9,491 per week
C.The Husband’s assets are $8,802,445
D.The Husband’s liabilities are $506,158
It seems apparent that the Husband has the capacity to pay an order for costs forthwith.
So significantly, and unsurprisingly it was not submitted on behalf of the husband that he would be unable to meet any order for costs awarded against him. Also significantly, it was not submitted that the financial resources of any party seeking an order for costs against the husband should disentitle that party to an order for costs if the Court were otherwise of the opinion that the circumstances justified such an order. In those circumstances, we do not regard the absence of any evidence of the financial circumstances of the parties seeking costs against the husband to be significant.
We observe that, the professional advisors have only become parties to the proceedings in this Court because of an application made against them by the husband. Whilst there may be cases where the financial circumstances of third parties, particularly those in the position of the professional advisors in this case, would be obliged to disclose their financial circumstances if seeking an order for costs, we do not accept that the circumstances of this case render that necessary or appropriate.
We are of the opinion that the circumstances justify a costs order. The more vexed question is whether such order should be on a party and party basis or, as sought by the wife and the professional advisors, on an indemnity basis.
A number of submissions on behalf of the wife relate to the financial consequences before the trial Judge of the course submitted to have then been taken by the husband. The submissions rightly acknowledge that those are matters for the determination of the trial Judge. The balance of the submissions on behalf of the wife, do not engage with the principles emerging from the authorities in relation to awards of indemnity costs.
On behalf of the professional advisors it was submitted, by reference to the well known authorities which are relevant to such applications, that:
6.In the present case the contentions of the Respondent were maintained in the face of the few authorities on the issue to which the Respondent’s case was entirely contrary. The matters relied upon to justify the application were held to be insufficient and not to have been established. Given these many failings and the weakness of the allegations it is a reasonable inference that the application was pursued for an ulterior motive – namely to drive the wife’s solicitor and expert witness from the proceedings. Alternatively, the Respondent’s case was so weak as to justify indemnity costs.
Senior Counsel for the husband submitted that the discretion to award indemnity costs ought not be enlivened on the basis that neither of the matters relied upon by the parties seeking indemnity costs could be accepted as established on the balance of probabilities. It was submitted that the decisive issue before this Court was an issue of law, and that neither expressly nor impliedly did this Court make, nor could it now make findings in relation to the matters asserted on behalf of the professional advisors. It was thus submitted that nothing before this Court established that “exceptional circumstances”, as the authorities have consistently acknowledged are necessary in order to enliven the discretion to award indemnity costs, have been demonstrated.
Whilst the Court is comfortably of the opinion that circumstances justify an order for costs being made against the husband in favour of each of the appellants, there is not a sufficient evidentiary foundation to conclude that indemnity costs would be appropriate.
It may be that, to the extent that the costs of the wife have been increased as a result of any “ulterior motive” on the part of the husband, such costs could be recovered at trial if there was an evidentiary foundation for doing so, but those are not matters about which we can speculate.
The appeal to this Court, and its resistance, were conducted competently and expeditiously. As the Court’s judgment hopefully reveals, albeit the husband was ultimately unsuccessful, the appeal involved a significant issue of principle.
This Court is in no position to attempt to determine the quantum of party and party costs appropriate to be paid by the husband. Such matters are best dealt with by those with expertise in that respect.
As it is not in doubt, a condition precedent to the granting of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) is that there be no order for costs of the proceedings. That condition precedent has not been met in this case. Accordingly, no question of costs certificates arises.
We will make the usual order, that Mr Byrd pay the costs of Ms Byrd, Mr Y and Ms D of and incidental to the appeal as agreed or assessed on a party and party basis.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray and Austin JJ) delivered on 20 March 2013.
Associate:
Date: 20.03.2013
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