DAVIES and Addis (No.2)
[2012] FMCAfam 1488
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVIES & ADDIS (NO.2) | [2012] FMCAfam 1488 |
| FAMILY LAW – Application for costs. |
| Applicant: | MS DAVIES |
| Respondent: | MR ADDIS |
| File Number: | SYC 5992 of 2010 |
| Judgment of: | Altobelli FM |
| Date of Last Submission: | 27 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Ash |
| Solicitors for the Applicant: | Horowitz & Bilinksy |
| Counsel for the Respondent: | Mr A. Coombe |
| Solicitors for the Respondent: | Sally Nash & Co Lawyers |
ORDERS
The Wife is to pay the costs of the Trustee in Bankruptcy, as agreed or as assessed limited to the costs associated with:
(a)Responding to the Wife’s application under s.79 of the Family Law Act 1975; and
(b)Responding to the Wife’s proceedings in the Supreme Court subsequently discontinued.
IT IS NOTED that publication of this judgment under the pseudonym Davies & Addis (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5992 of 2010
| MS DAVIES |
Applicant
And
| MR ADDIS |
Respondent
REASONS FOR JUDGMENT
I provide the following oral reasons in relation to competing costs applications that arise out of a judgment handed down on 22 August and published as [2012] FMCAfam 866. Background matters are adequately recited in those reasons. On 19 September, the applicant wife filed a notice of appeal to the Full Court. It is not suggested by either party that I should postpone the adjudication of the costs issue because of this.
I had the benefit of written submissions. The second respondent trustee's submissions were received on 10 September, the applicant wife's submissions on 27 September. I am going to incorporate those submissions into these oral reasons, and in any event in the short discussion that follows I will be referring to the key points.
In determining the costs issues, one must not lose sight of what I described at paragraph 6 of my reasons as the long and convoluted history of this case. It is possible to pick up some of the threads of this litigation and deal with it discretely in determining the question of liability for costs, though I accept that it creates potential issues in relation to quantification. For example, to the extent that the wife's proceedings involved a claim under s.79 of the Family Law Act, it had no foundation. She quite properly abandoned the claim. Costs must follow from this. However, I could discern from the evidence no element of culpability that would merit indemnity costs. Accordingly, I will not make an order for indemnity costs, but I will order that the wife pay all of the trustee's costs attributable to the wife's s.79 application.
The second thread of the litigation that can be identified and dealt with discretely is as follows. The wife abandoned the first proceedings she took in the New South Wales Supreme Court against the trustee for a declaration of trust. I think costs must follow from this. Again, there's no warrant for indemnity costs, but it is appropriate that she should pay all of the trustee's costs associated with the first proceedings up until the time that she discontinued the same.
The real issue in this litigation was the trustee's claim for possession and the wife's response in seeking a number of declarations. As I said, in effect, at paragraph 11 of my reasons, the real issue was as to the ownership of the home. The bottom line, if I can be so blunt, is that both parties were successful in parts of their claim and unsuccessful in parts of their claim. The reasons for judgment explain this. I do not intend to traverse the territory that I think is dealt with in the reasons.
With respect to both counsel, who I discern prepared their written submissions as to costs, this fact appears to have been glossed over, and with great respect to counsel, who I must say were enormously helpful to me in the hearing itself, I think their submissions really provide little assistance to me as to what I should do in relation to costs in a situation where both parties obtained part of what they wanted, and both parties did not get all they wanted. Whilst there are some threads of this litigation that can be unpicked and analysed for costs purposes, that cannot be said for the bulk of the issues of indemnities and equities that form the rich fabric of this case and cannot be unpicked. To apportion liability for costs in this case is a Sisyphean task that would ignore the reality that neither party was entirely successful in their claim.
All too often, litigation assumes a life of its own. This is one of those cases. I intend to make no order for costs in relation to the bulk of the proceedings. I expressly acknowledge that I contemplated making an order that the trustee pay the wife's costs in relation to the declaration of trust in the express trust and the charge pursuant to order 2, and that the wife pay the trustee's costs in relation to the other charges referred to in the reasons, but this would, in my opinion, be an unworkable outcome that would condemn the parties to continue disputation about quantification of costs and would, one suspects, based on experience, result in one costs order substantially setting off the other.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 18 February 2013