Caffyn & Protz Group & Anor (No 2)

[2018] FamCAFC 199

FAMILY COURT OF AUSTRALIA

CAFFYN & PROTZ GROUP AND ANOR (NO. 2)   [2018] FamCAFC 199

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for costs by the second respondent against the applicant on an indemnity basis – Agreement as to costs previously reached between applicant and first respondent – Where the applicant has been wholly unsuccessful – No submissions made by the second respondent as to how costs should be calculated – Where the circumstances do not justify costs on an indemnity basis – Second respondents application for costs granted in the same amount as between the applicant and the first respondent.

Family Law Act 1975 (Cth) s 117

Colgate-Palmolive Company & Another v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Caffyn & Protz Group and Anor [2018] FamCAFC 147

APPELLANT: Ms Caffyn

RESPONDENT: Protz Group Pty Ltd & B Pty Ltd (in liquidation)

SECOND  RESPONDENT: Mr Caffyn

FILE NUMBER: PAC 3892 of 2015

FIRST APPEAL NUMBER: EA 72 of 2018

SECOND APPEAL NUMBER: EA 82 of 2018

DATE DELIVERED: 23 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 17 July 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: Not applicable

LOWER COURT MNC: Not applicable

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

SOLICITOR FOR THE APPELLANT: Mr O’Neil

COUNSEL FOR THE RESPONDENT: Mr Heazlewood

SOLICITOR FOR THE RESPONDENT: Lewarne & Goldsmith

Orders

1. The applicant wife pay the costs of the second respondent in relation to the applications in an appeal fixed in the sum $5,000.

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 Caffyn & Protz Group and Anor (No. 2) 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number:  EA 72 and 82 of 2018
File Number: PAC 3892 of 2015

Ms Caffyn

Appellant

and

Protz Group Pty Ltd & B Pty Ltd (in liquidation)

First Respondent

and

Mr Caffyn

Second Respondent

REASONS FOR JUDGMENT

1. On 9 August 2018 two applications in an appeal filed by Ms Caffyn (“the wife”) were dismissed.  The applications sought to extend time in which to appeal orders made by Rees J on 23 April 2018 and that an extant appeal against the orders of Rees J made on 26 April 2018 be expedited.  The reasons for decision and the orders are to be found in Caffyn & Protz Group and Anor [2018] FamCAFC 147.

2. Both respondents sought orders for costs against the applicant wife in the event that the applications were unsuccessful.  To that end, an order was made on

   
   

   9 August 2018 that by 4 pm on 24 August 2018 the applicant wife file and serve a submission on the issue of the costs sought by the respondents.  The question was then reserved to be considered in chambers without necessity of the parties attending court.

3. The applicant filed the submission and in it noted that she had reached an arrangement with the first respondent as to costs in relation to the appeals.  Thus the only outstanding application for costs is that of the second respondent (“the husband”) who seeks that the applicant pay his costs of the failed applications on an indemnity basis.

4. In support of his claim for costs, the second respondent relies on the applicant wife’s applications being wholly unsuccessful and argues that her applications were misguided. 

5. The question of costs is guided by s 117 of the Family Law Act 1975 (Cth) (“the Act”) which provides that each party to proceedings shall bear his or her own costs subject to the court being of the opinion that there are circumstances that justify making a costs order. The consideration of whether the circumstances justify the making of the order includes whether a party has been wholly unsuccessful in the proceedings (s 117(2A)(e) of the Act).

6. The applicant submits that her financial circumstances are difficult although concedes that on completion of the property settlement proceedings she will receive part of the proceeds of sale of a property and, the second respondent contends that she will receive an unencumbered property.  The applicant attaches to her submission documents which show that she has debts, however I am not persuaded that her circumstances are such that an order for costs should not be made if otherwise appropriate.

7. That the applicant wife’s applications were wholly unsuccessful justifies an order for costs being made in the second respondent’s favour.

Indemnity Costs

1. It is well established that the usual rule in relation to costs is that the amount is calculated on a party and party basis, and, it is equally well established that there needs to be exceptional circumstances demonstrated to justify a departure from that rule (see Colgate-Palmolive Company & Another v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive”)).

2. While far from clear, it seems that in support of the claim to an order for indemnity costs, the second respondent relies on the applicant bringing the appeal against Rees J’s orders in circumstances where she “was advised” that the appeal was misconceived.  The submission does not explain further who proffered that advice to the applicant however, even if she had been so advised, I am not prepared to find that even though objectively the applicant wife’s application for leave to appeal against Rees J’s orders was unlikely to succeed,  it does not justify a departure from the usual rule.

3. In the course of his submission on costs, the second respondent seeks costs in relation to a stay sought in the proceedings at first instance.  No basis was asserted as to how or by what power this court can determine the issue of those costs and I do not propose to consider the matter further.

4. The second respondent’s submissions provide no calculation as to the costs sought on either a party and party basis nor, as this was claimed, on an indemnity basis.  The submissions seek that costs be agreed or assessed.

5. That course does not accord with the usual practice of the Full Court when making costs orders.  The assessment process in the event of an amount of costs not being agreed can be protracted and burdensome.

6. The applicant says that she has reached an agreement with the first respondent as to the costs of both failed applications in the sum of $5,000.  In my view that represents a reasonable figure taking into account the circumstances of the matter and where the party seeking costs made no attempt to quantify the costs sought. I propose to make an order that the applicant wife pay the second respondent’s costs of and incidental to the applications in the sum of $5000. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 23 October 2018.

Associate: 

Date:  23 October 2018