Cutress and Cutress (No 2)

[2017] FamCA 1022

FAMILY COURT OF AUSTRALIA

CUTRESS & CUTRESS (NO. 2) [2017] FamCA 1022

FAMILY LAW – COSTS – whether party wholly unsuccessful

Family Law Act 1975 (Cth)- s 117(2A)

APPLICANT: Mr Cutress

RESPONDENT: Ms Cutress

FILE NUMBER: SYC 5268 of 2015

DATE DELIVERED: 15 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 1 November 2017 and 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McIntosh

SOLICITOR FOR THE APPLICANT: Peter Cornock & Associates

COUNSEL FOR THE RESPONDENT: Mr Mullan

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

«FCA_LD221»IT IS ORDERED THAT:

1. The husband’s application for costs in respect of the proceedings concluded by judgment on 21 August 2017 is dismissed.

2. The husband pay the wife’s costs in relation to his costs application in respect of the interim proceedings concluded by judgment on 21 August 2017 save for those costs that relate to the parties’ Court attendance in relation to the matter on 1 November 2017.

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 Cutress & Cutress 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5268 of 2015

Mr Cutress

Applicant

And

Ms Cutress

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve an application by the husband for costs, either on an indemnity or otherwise basis, in relation to proceedings concluded by interlocutory judgment on 21 August 2017.  On that day the parties had competing applications.  In general terms the wife sought orders for either an interim property distribution or litigation funding costs order, and sought sole occupancy of the former matrimonial home.  She also sought machinery orders to prepare the matter for final hearing, including the preparation of accounts for the self-managed superannuation fund and for various valuations.  The husband sought the dismissal of the wife’s application and sought a sole occupancy order for himself for the former matrimonial home. 

2. By consent almost all the machinery matters were dealt with.  Orders were made for accounts to be prepared for the self-managed superannuation fund and for various valuations.  The wife’s orders sought were otherwise refused, as were the orders sought by the husband. 

3. That is, in the most significant matters sought by each of the parties, for the wife the sole occupancy, the litigation funding/interim property distribution orders and for the husband the sole occupancy orders, the parties were each unsuccessful, although that meant that the husband would continue to live in the former matrimonial home.  The wife was successful in the bulk of the machinery matters, those being dealt with by consent on the day of the hearing.  The husband says the wife has only been successful in relation to peripheral matters and has failed in respect of the primary matters. 

4. Section 117 of the Family Law Act 1975 deals with costs. The general rule is that each party will bear his or her own costs. This rule may be departed from where there are circumstances that justify it doing so. Examining s 117(2A) sets out various considerations for the Court. As to the first of these, the financial circumstances - each party is in receipt of significant income. Even if they could not pay costs from their income or immediately available resources, they have capacity to ultimately pay costs on the resolution of the property dispute due to the significant pool of resources available to them jointly. On the question of conduct, the husband asserted that there was a matter of conduct to be construed against the wife. That is, she made her application and continued her application, he says under circumstances where she had no evidence to support the application. It is incorrect to characterise her application as having no evidence. Clearly, by virtue of the fact that she failed in her application, there was inadequate evidence to support the result that she sought. That is not the same as saying that there was no evidence. The next point raised under s 117(2A) is the failure to comply with previous orders. This did not seem to be significant in the parties’ arguments.

5. The key matter was whether or not one of the parties could be characterised as wholly unsuccessful.  The wife was partially successful and partially unsuccessful, as was the husband. 

6. In relation to offers in writing to settle, in respect of the substantive interim matter, there was no matter of any significance. 

7. In respect of other matters as referred to in s 117(2A) the question of degree of success is raised. That is, even though each party had partial success, the wife was unsuccessful in the most important of the matters.

8. In examining these matters I agree, as was put by the husband, that there is a broad discretion in the Court to award or not to award costs.  I further agree that there need not be a clear case or an exceptional case to make an order for costs. 

9. However in this case there is no particular factor under s 117(2A) that points to the making of an order with particular cogency, sufficient to cause me to depart from the general rule. No order for costs will be made in the substantive matter.

10. The question then arises as to cost in respect of the cost application.  The same factors that have been identified above are applicable but for two.  Firstly, in this case the husband has been wholly unsuccessful in respect of seeking costs against the wife.  That is sufficient to justify a departure from the usual rule and an award for costs will be made against the husband.  Secondly, an offer to settle the costs matter was made in writing and not taken up by the husband.  That offer would have resulted in a payment in respect of costs being made to the husband.  This adds to the justification to make the order.

11. However, those costs have been exacerbated by the wife’s change in legal representatives and hence need for an adjournment of the previous time that the matter was set down for hearing.  The wife had sought consent to an adjournment; the husband did not give it.  However it is not the case that this late change in legal representatives should cause the husband to bear the additional costs occasioned to the wife through the adjournment of the case and that portion of the costs will not be awarded. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 December 2017.

Associate: 

Date:  15 December 2017