Cirillo & Cirillo (No. 2)
[2021] FedCFamC1A 101
•24 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cirillo & Cirillo (No. 2) [2021] FedCFamC1A 101
Appeal from: Cirillo & Cirillo(No. 2) [2021] FamCA 398 Appeal number(s): EAA 74 of 2021 File number(s): SYC 4192 of 2020 Judgment of: AUSTIN, REES & WILSON JJ Date of judgment: 24 December 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Application for indemnity costs – Where the appellant was wholly unsuccessful in her application to adduce further evidence and in her application for leave to appeal – Where there was no utility in the appeal – Where the appellant refused an offer – Where the appellant did not file any submissions in opposition to an application for indemnity costs – Indemnity costs ordered in the respondent’s favour. Legislation: Family Law Act 1975 (Cth) s 117(2A) Cases: Colgate-Palmolive Co v CussonsPty Ltd (1993) 46 FCR 225; [1993] FCA 801
Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105Number of paragraphs: 17 Date of last submission/s: 7 December 2021 Date of hearing: Heard by way of written submissions Place: In Chambers, delivered in Newcastle Appellant: Litigant in person (did not participate) Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Boyce Family Law & Mediation ORDERS
EAA 74 of 2021
SYC 4192 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CIRILLO
Appellant
AND: MR CIRILLO
Respondent
ORDER MADE BY:
AUSTIN, REES & WILSON JJ
DATE OF ORDER:
24 DECEMBER 2021
THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of the appeal in the sum of $57,346.53, with such sum to be paid within seven days of the wife’s receipt of funds payable to her pursuant to Order 3(c) made on 1 October 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cirillo & Cirillo (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, REES & WILSON JJ:
Reasons for judgment in the appeal in this matter were delivered, and leave to appeal was refused, on 2 November 2021.
Costs were reserved and the husband was ordered to file and serve any affidavit and written submissions within 14 days, the wife to file within14 days thereafter.
The husband has filed an affidavit and written submissions. The wife has not filed any material.
The husband relies upon an affidavit of his solicitor sworn on 16 November 2021 and written submissions filed the same day.
The husband seeks the payment of costs on an indemnity basis.
In relation to the factors to be considered, as set out in s 117(2A) of the Family Law Act 1975 (Cth), the husband relies on the following matters.
The parties are wealthy and the wife will receive very substantial funds.
The wife’s actions in filing an application to adduce further evidence, accompanied by a substantial volume of material, unnecessarily exacerbated the costs. That application was wholly unsuccessful.
The wife was wholly unsuccessful in her application for leave to appeal.
As is explained in the reasons delivered on 2 November 2021, once orders had been made by Aldridge J for the preservation of the majority of the assets of the marriage on 1 October 2021 and on 8 October 2021, any substantial injustice which might have resulted if leave to appeal were refused fell away.
On 6 October 2021, the husband’s solicitors wrote to the wife’s solicitors suggesting that, given the orders which had been made by Aldridge J, the appeal no longer had any utility and inviting them to discontinue the appeal on the basis that each party pay his or her own costs. That offer was rejected.
On 8 November 2021, after leave to appeal was refused, the husband’s solicitor wrote again to the wife’s solicitor, referring to the letter of 6 October 2021 and advising that costs were claimed on an indemnity basis in the sum of $57,346.53. The husband offered to compromise that amount if the wife were to pay $50,000, to be paid from the wife’s share of the proceeds of sale of a property. There is no evidence of any response to that offer.
In Colgate-Palmolive Co v CussonsPty Ltd (1993) 46 FCR 225 at 233 (“Colgate-Palmolive”), Sheppard J stated:
4.…The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
(Emphasis added)
The Full Court of the Family Court of Australia (as it was then known) considered the law in relation to indemnity costs in Prantage & Prantage (2013) FLC 93-544. The majority (Thackray and Ryan JJ) set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive should continue to be applied in the
Family Court of Australia.
It is relevant that, in the present case, the wife has filed no material in opposition to the application for indemnity costs and she has not disputed the quantum of the costs sought by the husband.
The offer made on 6 October 2021 should have been accepted. Refusal of the offer was imprudent. There was no utility in the appeal.
Costs will be ordered on an indemnity basis as sought by the husband.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Rees & Wilson. Associate:
Dated: 24 December 2021
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