Curtain & Curtain (No 5)

Case [2025] FedCFamC1F 124

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Curtain & Curtain (No 5) [2025] FedCFamC1F 124

File number(s): ADC 4409 of 2013
Judgment of: MEAD J
Date of judgment: 12 March 2025
Catchwords: FAMILY LAW – COSTS – Application for costs – Both parties seeking indemnity costs – Whether costs should be awarded on an indemnity basis – Where there are circumstances that justify orders for costs being made
Legislation:

Family Law Act 1975 (Cth), ss 79, 79A, s 79A(1)(a), 117, 117(2), 117(2A), 117(2A)(c), 117(2A)(e), 117(2A)(f), 117(4), 117(4A), 117(5), 117(6)

Federal Circuit and Family Court of Australia (Family Law) Rules r 12.13,

Cases cited:

Curtain & Curtain [2018] FamCA 796

Curtain & Curtain [2019] FamCA 919

Curtain & Curtain [2022] FedCFamC1F 186

Curtain & Curtain [2022] FedCFamC1A 134

Curtain & Curtain (No 4) [2024] FedCFamC1F 348

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Fitzgerald (as child representative for A) (Legal Aid commissioner of Tasmania) v Fish [2005] FamCA 158

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Sfakianakis & Sfakianakis [2019] FamCAFC 54

Division: Division 1 First Instance
Number of paragraphs: 83
Date of hearing: 20 January 2025
Place: Adelaide
Counsel for the Applicant: Mr UU
Solicitor for the Applicant: AT Lawyers
Counsel for the Respondent: Mr McQuade
Solicitor for the Respondent: CM Tucker & Associates

ORDERS

ADC 4409 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CURTAIN

Applicant
AND:

MS CURTAIN

Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

12 MARCH 2025

THE COURT ORDERS THAT:

1.The husband do pay the wife’s costs of and incidental to the husband’s application for summary dismissal filed herein on 18 January 2021 fixed in the sum of $27,500 (TWENTY SEVEN THOUSAND FIVE HUNDRED DOLLARS).

2.The wife do pay the husband’s costs of and incidental to the wife’s Initiating Application filed herein on 29 November 2017 (as amended on 8 May 2020) fixed in the sum of $300,000 (THREE HUNDRED THOUSAND DOLLARS).

3.To give effect to the orders specified in paragraphs 1 and 2 hereof, the wife do pay to the trust account of the husband’s solicitors, CM Tucker & Associates on account of the husband, fixed in the sum of $272,500 (TWO HUNDRED AND SEVENTY-TWO THOUSAND FIVE HUNDRED DOLLARS) on or before the 11 July 2025.

4.All extant applications be otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of…

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Curtain & Curtain (No 5) [2025] FedCFamC1F 124
Case
[2025] FedCFamC1F 124
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) was asked to decide a matter concerning costs in a family law dispute between Mr Curtain and Ms Curtain. Both parties sought indemnity costs, arguing that the other party's conduct justified such an award. The primary issue was whether the circumstances of the case warranted an order for costs on an indemnity basis. The court needed to determine if the wife's application for costs, predicated on her allegation of the husband's non-disclosure of financial information, was justified. The judge found that the wife's application was wholly unsuccessful and that she had been an unreliable witness who had obfuscated the issues during cross-examination. The judge also found that the wife had intentionally concealed her knowledge of the husband's interest in a trust, which she had failed to disclose during the original trial in 2016.

The court concluded that there were circumstances justifying an order for costs against the wife, but it was not appropriate to make an order for indemnity costs. The judge noted that there was no evidence of a costs agreement between the husband and his solicitors, and there was a significant disparity in the parties' financial circumstances. The judge also found that the wife had intentionally concealed her knowledge of the husband's interest in a trust, and her failure to disclose this information during the original trial was a deliberate choice. The court held that the wife's conduct warranted an order for costs against her, but the circumstances did not justify an indemnity costs order. The judge ordered the wife to pay the husband's costs of and incidental to her initiating application, fixed in the sum of $300,000. The husband was ordered to pay the wife's costs of and incidental to his application for summary dismissal, fixed in the sum of $27,500.

Orders

Orders of the court

ADC 4409 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CURTAIN

Applicant

AND:

MS CURTAIN

Respondent

ORDER MADE BY:

MEAD J

DATE OF ORDER:

12 MARCH 2025

THE COURT ORDERS THAT:

1. The husband do pay the wife’s costs of and incidental to the husband’s application for summary dismissal filed herein on 18 January 2021 fixed in the sum of $27,500 (TWENTY SEVEN THOUSAND FIVE HUNDRED DOLLARS).

2. The wife do pay the husband’s costs of and incidental to the wife’s Initiating Application filed herein on 29 November 2017 (as amended on 8 May 2020) fixed in the sum of $300,000 (THREE HUNDRED THOUSAND DOLLARS).

3. To give effect to the orders specified in paragraphs 1 and 2 hereof, the wife do pay to the trust account of the husband’s solicitors, CM Tucker & Associates on account of the husband, fixed in the sum of $272,500 (TWO HUNDRED AND SEVENTY-TWO THOUSAND FIVE HUNDRED DOLLARS) on or before the 11 July 2025.

4. All extant applications be otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In reply, Mr McQuade submitted that most contentions made by Mr UU ignored the findings of the court in paragraphs 186 – 214 of the judgment of 4 June 2024.CONCLUSION I am satisfied that there are circumstances in this matter that justify an order for costs against the wife. I say at the outset however that I am not satisfied that this is a matter where it is appropriate to make an order for indemnity costs. That may have not been the case however had:·There been any evidence before the court to satisfy the requirements of Rule 12.13 of the Rules regarding the existence of a costs agreement having been entered into between the husband and his solicitors and/or the fact of such agreement having been made known to the wife’s solicitors; and·There not been such a significant disparity between the parties’ financial circumstances as evidenced in their Financial Statements to which I have referred. It is important to note that the question of costs arises in relation to the wife’s s 79A application filed on 29 November 2017 (as amended on 8 May 2020), and not earlier proceedings. The wife was wholly unsuccessful in respect of that application. The application was predicated on her allegation that before or at the time the Honourable Justice Berman was called upon to determine the distribution of assets acquired by she and the husband during their marriage the husband had failed to disclose relevant financial information such that she had been misled (as had the court at that time) as to the circumstances of the husband’s interest in Q Trust resulting in a miscarriage of justice. In paragraph 91 of the wife’s Trial Affidavit filed on 28 February 2024 she deposed to the husband having never disclosed correspondence to him from W Pty Ltd dated February 2013 offering employment and a 20% interest in Q Trust and further that she had not obtained a copy of that correspondence until receiving the same from Mr LL on or about August 2017. It was the wife’s position at the trial in April 2024 that there had been a duty upon the husband to bring before the court, at the time of the original trial in 2016, matters relating to his interest in Q Trust, the provision of funds to Ms YY and the existence of unpaid invoices due by W Pty Ltd to the husband/E Pty Ltd and Ms YY which he held back pending the completion of the proceedings in 2016. She argued there would have been a substantially different result leading to a conclusion that a miscarriage of justice had occurred. Having heard the evidence of the parties and submissions from their counsel I delivered judgment on 4 June 2024, inter alia making the following findings:·That the wife was an unreliable witness who throughout lengthy cross-examination, gave answers to questions in a manner intended to obfuscate the issues to which she was being directed;[20] [20] Curtain & Curtain (No 4) [2024] FedCFamC1F 348 at [159].·The frequent suggestion during cross examination that she had had “suspicions” about the husband’s interest in Q Trust was designed to mislead the court;[21][21] Ibid at [160].·The husband had told her in 2013, during collaborative mediation, that he had commenced employment with W Pty Ltd;[22][22] Ibid at [189].·During cross examination she freely conceded that she had obtained a copy of the letter of offer from the agricultural property herself…;[23][23] Ibid at [161].·Had intentionally removed the document and at no time prior to the 2016 trial disclosed to the husband that she had removed the document nor attempted to return to him, at the very least, a copy of the document;[24][24] Ibid at [162].·To the contrary, she had instructed her solicitor on 2 December 2014, likely some 18 months or so after she had obtained the copy of the correspondence, to write to the husband to seek discovery of the very same document;[25][25] Ibid at [163].·The wife adduced no evidence for the purposes of the 2016 trial that she had the letter in her possession from the early part of 2013 nor was that raised in her affidavit filed for the purposes of this trial;[26][26] Ibid at [164].·When pressed on that matter in cross examination she told the court that she knew as at 2 December 2014 when she gave her solicitor instructions to seek discovery of the letter that she had a copy of the letter and gave it to her solicitor…When asked what prevented her from telling the court that she had obtained a copy of the letter at the very latest by 1 December 2014 she said she could only apologise if that detail was missing as she was not denying she had seen a copy of the letter.[27][27] Ibid at [165].·Neither party discovered the document as being a document in their possession or control either prior to the 2016 trial or during that trial;[28] [28] Ibid at [166].·She adduced no evidence to explain why she had not taken advice, particularly from her counsel…with respect to the issuing of subpoenas to Q Trust and W Pty Ltd. Notwithstanding her evidence that she was anxious at all times up to the date of the trial in 2016 to ascertain the extent of the husband’s interest in Q Trust and the value of same, I am unable to find any evidence to support that assertion on the part of the wife;[29][29] Ibid at [168].·…she conceded she told Ms AN that the husband had been given a job offer by Q Trust and offered a share in the business in late 2011. None of this material was brought to the attention of the court in 2016. Nor, in circumstances where she had the opportunity to cross examine the husband whilst under oath during the 2016 trial were any of those issues put to the husband;[30][30] Ibid at [170].·The facts of this case are that neither party discovered the document prior to trial and neither party adduced any evidence before His Honour Justice Berman as to any interest the husband may have in the trust;[31][31] Ibid at [185].·I find the wife was further aware that at the time of trial in 2016 the husband was still employed by W Pty Ltd as that was disclosed on his financial statement. I find that in addition to neither party discovering the letter of February 2013 to the other of them or the court prior to or during trial, neither party disclosed in their respective cases as presented to Berman J in April 2016 their knowledge of the husband’s potential interest in Q Trust;[32][32] Ibid at [190].·I find that the contents of paragraph 91 of her affidavit filed in these proceedings on 28 February 2024 were patently untrue;[33][33] Ibid at [192].·…Nevertheless, in circumstances where:·The wife was the applicant;·She was well aware of the history of discussions between the husband and W Pty Ltd regarding his employment with that company and the likely benefits that may flow therefrom;·She had knowledge of the lengthy and detailed letter of offer to the husband of 28 December 2012; and·She had knowledge of the contents of the correspondence to the husband from W Pty Ltd dated February 2013and knowledge in 2013 that he was working for W Pty Ltd, the wife chose not to pursue that issue at any level in preparation for trial notwithstanding being represented for almost all of the time between September 2013 and March 2016 by experienced family law solicitors and on occasion counsel, receiving advice concerning issuing subpoena to W Pty Ltd and Q Trust, and her solicitor informing the husband’s solicitors as early as May 2014 during negotiations that for that time only the wife was willing to include stated valuations in the pool of assets. That of course did not include any value for the husband’s interest in Q Trust;[34]·I am not satisfied that the husband suppressed evidence by way of failure to disclose relevant information such as to provide the basis for the necessity for the court to consider whether a miscarriage of justice has occurred;[35]·I find that the wife removed the copy of the correspondence from the manilla folder in which the husband had placed it at the agricultural property and that she did not disclose that fact to him prior to or during the trial. I accept the husband’s evidence that despite searching for the letter not only on or about December 2014 but on other occasions he was unable to find the letter until some considerable later time after obtaining assistance from a data company;[36]·I accept the husband’s evidence that the wife had no interest in the project, did not believe that it was likely to be a successful project that would lead to any financial benefit to the husband in the future, was focused on the issue of retention of the family enterprise at trial and elected not to seek orders that the husband retain any interest in Q Trust. I find that had the wife chosen to discover the correspondence of February 2013 prior to trial and adduce evidence as to the existence of that correspondence and her knowledge of the history behind the contents of that correspondence, those matters would have been before the court at least by the time of trial in 2016 and probably much sooner;[37]·I am unable on the evidence to find that the wife was misled as to the husband’s interest or potential interest in Q Trust at the time of trial and accordingly was not mislead as to the value of any such interest;[38]·I find that information about any interest the husband may have had in 2016 in Q Trust was not peculiarly in his knowledge but rather the wife chose to conceal her knowledge of the matters to which I have referred, chose not to adduce any evidence regarding the matter at trial and indeed specifically sought an order that the husband retain any interest he may have in Q Trust. I am not satisfied that she took that position as a result of any misleading or adequate information on the part of the husband, notwithstanding he did not discover the letter;[39][34] Ibid at [192].[35] Ibid at [193].[36] Ibid at [194].[37] Ibid at [195].[38] Ibid at [196].[39] Ibid at [202].

Ratio Decidendi

Legal Principle Established

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