Cloney and Cloney & Ors (No 2)
[2015] FamCA 210
•18 March 2015
FAMILY COURT OF AUSTRALIA
| CLONEY & CLONEY AND ORS (NO 2) | [2015] FamCA 210 |
| FAMILY LAW – COSTS – second and third respondents unsuccessful in application for summary dismissal – whether circumstances justify an order for costs against second and third respondents – the application for summary dismissal although unsuccessful was not unreasonable given the drafting of the wife’s application – wife’s oral application for costs is dismissed. |
| Family Law Act 1975 (Cth) s 117 |
| Simmons & Simmons and Ors [2009] FamCA 76 |
| APPLICANT: | Ms A Cloney |
| SECOND RESPONDENT: | Mr B Cloney |
| THIRD RESPONDENT | Ms C Cloney |
| FILE NUMBER: | ADC | 3743 | of | 2013 |
| DATE DELIVERED: | 18 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 18 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cox, SC |
| SOLICITOR FOR THE APPLICANT: | Voumard Lawyers |
| COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: | Ms Kari |
| SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: | Thomas Legal |
Orders
The wife’s oral application for costs is dismissed.
Certified fit for Senior Counsel pursuant to r 19.50 of the Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cloney & Cloney & Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3743 of 2013
| Ms A Cloney |
Applicant
And
| Mr B Cloney and |
| Ms C Cloney |
Second and Third Respondents
EX TEMPORE REASONS FOR JUDGMENT
This is an application by the applicant wife for an order for costs against the second and third respondents in relation to the application the second and third respondents brought in relation to the summary dismissal of the wife’s claim against them. The full particulars are set out in the written reasons for judgment delivered on 18 February 2015. The necessary background to the matter is that the proceedings between the husband and wife have been on foot since October 2013. There have been various amended initiating applications filed by the wife, the latter of which seeks declarations concerning the second and third respondents and claims for property held by the second and third respondents, be held on trust for the husband and wife. I refer to those matters in detail in the judgment of 18 February 2015. This needs to be seen in the context of the material in that judgment. I will not recite all of it in these ex tempore reasons.
The matters which have to be considered when dealing with the question of costs are, clearly, the provisions of s 117 of the Family Law Act1975 (Cth) (“the Act”) which state that, subject to subsection (2) and other irrelevant sections in this regard:
Each party to proceedings under this Act shall bear his or her own costs
Section 117(2) emphasises that –
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.
Section 117(2A) then sets out the matters which the Court shall have regard to when considering what order, if any, should be made under subsection (2). It is clearly a discretion that is given in the Act which discretion alters the normal provisions of s 117(1) which provide for, subject to that subsection:
…each party to proceedings under this Act shall bear his or her own costs.
I have received the written submissions of both the wife, the second and third respondents and have heard the submissions by counsel today in relation to the issues of costs.
In relation to the various matters which the Court should have regard to, I shall refer to those which are relevant.
The first is the financial circumstances of each of the parties to the proceedings. This is an interim hearing. There has been no final determination in relation to those matters but, clearly, the wife’s financial circumstances, set out in her previous documents, indicate that she is in employment and has what could be described as only “limited” assets in relation to these proceedings but is bringing a claim for substantial property settlement against the husband and now the second and third respondents.
I accept the evidence that it is not contested that the second and third respondents are self-funded retirees and they have substantial assets. There are issues concerning the readiness to access those assets and their limited income.
The question of legal aid is not relevant in this matter.
The conduct of the proceedings, subsection (c), is relevant to the consideration of this matter. Subsection (c) says:
“…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 answer questions, admissions of fact, production of documents and similar matters.”
In this case there has been a clear reference in my earlier judgment to the conduct of the parties in relation to pleadings and particulars. Reference is made in my judgment to what were then, and apparently still are, the final orders sought by the wife who is receiving legal advice. On 4 June 2014, the amended initiating application filed by the wife contained orders sought in relation to the second and third respondents:
A declaration that the second and third respondents hold land on trust for the husband and wife arising out of a resulting and/or constructive trust(s).
I made the reference to that in relation to the orders which I made dismissing the application for summary dismissal. I referred to the problems with the documents filed by the wife and the need for further amendments but that:
…those difficulties should not be the basis upon which to summarily dismiss the wife’s application in relation to the second and third respondents at this stage.
(That is paragraph 32 of my judgment of 18 February 2015).
In relation to the question of security for costs I said at paragraph 41:
This may alter if the husband and wife agree to sell jointly owned property and invest their proceeds pending the outcome of the litigation.
In relation to that matter, paragraph 44, I said I was:
…therefore, not satisfied that the Court should exercise its discretion at this stage to order any security for costs.
It has to be understood that those applications and the application for summary dismissal were being dealt with on an interim basis during the proceedings and not at a stage where the final determination of the claims of the parties have been determined.
The other factors in relation to the question of costs are whether any proceedings are necessitated by the failure of a party to proceedings to comply with previous orders of the Court.
That was not the case in this matter. However, there has been reference in the submissions by the counsel for the second and third respondents that the wife has previously failed to comply with orders of the Court. That is a matter in relation to conduct which would be taken into account.
Subparagraph (e) is:
Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The proceedings for summary dismissal brought by the second and third respondents were not successful. That is a factor which has to be taken into account when considering the costs matter.
Subsection (f) is:
Whether either party has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.
I am asked to take into account a letter which suggests that the second and third respondents were willing to negotiate in relation to the question of costs but received no response from the wife or her solicitors in relation to that proposal to negotiate settlement. This is not an offer to settle these costs proceedings but an indication of willingness to negotiate. That can be brought into account under subsection (g) which is:
Such other matters as the court considers relevant.
I take all of the matters into account including the authority of Simmons & Simmons and Ors [2009] FamCA 76 which is referred to by counsel for the second and third respondent. I have to weigh up, as an exercise of discretion, all of the factors referred to in ss 117(1) and (2) and (2A).
I have taken into account all of those factors and am satisfied that, because of the difficulties that the second and third respondents were facing in relation to the claim of the wife against them and the final orders that the wife was seeking (namely, the wording of the claim that the second and third respondents were alleged to be holding land on trust for the husband and wife arising out of a resulting and/or constructive trust) that the discretion of the Court should not be exercised at this time in favour of the wife to order the costs to be paid by the second and third respondents, even though the application for summary dismissal was dismissed.
In particular, the provisions of s 117(2A) do not say that one or other of the factors contained therein is determinative. Rather, the Court should have regard to those factors in taking into consideration the circumstances that the Court may find justify an opinion that the costs order should be made.
I therefore dismiss the wife’s oral application for costs and certify the matter fit for attendance of senior counsel.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 March 2015.
Associate:
Date: 30 March 2015
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