C & M (Costs)

[2006] FamCA 213

[2006] FamCA 213

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA30 of 2005

(No. BRM 5977 of 2003)

BETWEEN:
  C

Appellant Wife

AND:
  M

Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

(Costs)

Dates of Submissions:     For the appellant wife 2 February 2006
  For the respondent husband 10 February 2006

Date of Judgment:            10 March 2006

Smith Stanton, Solicitors, represented the Appellant Wife

Journey Family Lawyers, represented the Respondent Husband

C and M  NA30 of 2005 (BRM5977 of 2003)

Heard:  By way of written submissions
Delivered:     10 March 2006

COSTS – Wife’s application for costs based on the success of the appeal – No jurisdiction to make an order in respect of the trial in the Federal Magistrates Court – Costs of the appeal – No evidence of the parties’ present financial circumstances – Appeal had clear merits but was resisted by the husband – Wife’s failure on some grounds an insignificant issue – Grant of certificate under Federal Proceeding (Costs) Act 1981 (Cth) to the husband not appropriate.

Tyson and Tyson (No. 2) (1993) FLC 92-401

Husband ordered to pay wife’s costs of and incidental to the appeal.

1. On 20 January 2006, for reasons I then gave, I allowed an appeal against orders made in the Federal Magistrates Court in an application for property settlement. Essentially, the result of the appeal was to require a payment from the husband to the wife of $75,132 in lieu of $32,244. At the same time, I made orders permitting the appellant wife to make an application for costs by way of written submissions. She now seeks that the husband pay her costs of the appeal and three-quarters of her costs of the trial. The husband in response seeks an order that each party pay own costs of the appeal and the grant to him of a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981. He seeks that all other applications be dismissed.

Costs of the trial

1. I do not consider that I have jurisdiction to make an order in respect of the trial in the Federal Magistrates Court.  The jurisdiction which I exercised in making the orders of 20 January 2006 was the appellate jurisdiction of this court.  Not only was there no appeal in respect of a costs order relating to the trial, but it is common ground that no order in respect of such costs has been made.  Indeed for the husband it is said that the wife did not seek costs at trial.  The issue of the costs of the trial is one for determination at first instance.

Cost of the appeal

1. In determining this application I have regard to the terms of section 117 of the Family Law Act 1975, as amended and in particular subsections(1), (2) and (2A). I am obviously aware of the financial circumstances of the parties arising from the determination of the appeal against the orders of the Federal Magistrate and in particular the re-exercise of discretion by me. However, I accept the submission on behalf of the husband that there is no evidence of the parties present circumstances and that, in any event, no reliance was placed by the wife on comparative or individual financial circumstances.

2. In my view this is an instance when the result of the proceedings is of considerable significance.  I say this because the appeal against the division of property had clear merits, but was nonetheless resisted by the husband.

3. The husband submits that the wife’s success on appeal was only partial, because she failed to have set aside the decision and orders made by the Federal Magistrate in respect to an application that a transaction be set aside.  In my view, that was very much a lesser issue.

4. In my view, the husband should pay the wife’s costs of and incidental to the appeal.

Certificate

1. As to the question of the grant of a certificate to the husband, in Tyson v Tyson (No.2) (1993) FLC 92-401 the Full Court said as follows (at 80,111):

   “The grant or refusal of a costs certificate under the Act is purely discretionary, and the Act itself lays down no guidelines for the exercise of that discretion.  Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of that party’s total costs of the appeal, as compared with the “prescribed maximum amount” payable upon a costs certificate (in this case $4,000.00), all appear relevant for consideration by the Court in the exercise of that discretion, as too is the fact that the funds to honour such a certificate must come from the public purse.”

2. I do not consider the grant of a certificate appropriate.

ORDER

1.That the husband pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.