EMMERT & QUARTO
[2020] FamCAFC 48
•10 March 2020
FAMILY COURT OF AUSTRALIA
| EMMERT & QUARTO | [2020] FamCAFC 48 |
| FAMILY LAW – APPEAL – COSTS – Written submissions as to the issue of costs – Where the appellant failed to file written costs submissions – Where the appeal was wholly unsuccessful – Where the respondent sought costs – Appellant to pay the respondent’s costs of the appeal in a fixed amount. |
| Family Law Act 1975 (Cth) ss 44(5)(a), 117 |
| Emmert & Quarto [2019] FamCAFC 208 |
| APPELLANT: | Ms Emmert |
| RESPONDENT: | Mr Quarto |
| FILE NUMBER: | DGC | 1025 | of | 2014 |
| APPEAL NUMBER: | SOA | 61 | of | 2018 |
| DATE DELIVERED: | 10 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Alstergren CJ, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 2058 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Connor |
| SOLICITOR FOR THE APPELLANT: | MW Law |
| COUNSEL FOR THE RESPONDENT: | Mr Hutchings |
| SOLICITOR FOR THE RESPONDENT: | Peter Lynch |
Orders made in Chambers on written submission
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $16,550.00.
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 Emmert & Quarto 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 61 of 2018
File Number: DGC 1025 of 2014
| Ms Emmert |
Appellant
and
| Mr Quarto |
Respondent
REASONS FOR JUDGMENT
On 7 November 2019 we set aside an order granting the respondent leave to issue an application for a property settlement order out of time (on the basis that leave was not necessary) and otherwise dismissed Ms Emmert’s (“the appellant”) appeal against consequential procedural orders aimed at readying the matter for trial, made by a judge of the Federal Circuit Court of Australia in Melbourne.
Mr Quarto (“the respondent”) now seeks an order that the appellant pay his costs of the appeal in the amount of $16,550.00.
While the full background circumstances attending the appeal are set out in the earlier judgment of the Full Court (Emmert & Quarto [2019] FamCAFC 208), in order to understand the arguments pressed as to costs, it is helpful to set out an abbreviated version of those circumstances.
On 27 July 2018 the primary judge made orders granting leave to the respondent to commence property proceedings out of time.
On 24 August 2018 the appellant filed a Notice of Appeal appealing the order made by the primary judge in the instant appeal.
During the course of the appeal heard on 7 November 2019 and for the first time, it was contended that the primary judge’s order granting leave to commence property proceedings was founded on a mistaken acceptance that leave was required to commence the proceedings when, in fact, there were then property proceedings on foot between the parties.
That argument having been established on appeal, the primary judge’s order was set aside and the appeal otherwise dismissed.
As a result, the respondent now seeks an order that the appellant pay his costs of the appeal.
It needs to be understood that the proceedings between the parties had a long and convoluted history. The parties lived together from 2002 and while each asserted a different date of separation, the proceedings between them were conducted on the basis that they separated in August 2012.
The respondent commenced property proceedings in April 2014 (within the time specified in s 44(5)(a) of the Family Law Act 1975 (Cth) (“the Act”)) and the appellant responded to that application seeking both interim and final orders different from those sought by the respondent.
In short, although interim financial orders were made, there was considerable procedural delinquency on the part of both parties in readying the matter for final hearing and, on 9 February 2016 a different judge of the Federal Circuit Court made an order dismissing the respondent’s application, however the order did not dismiss the appellant’s response.
The time in which proceedings for property orders as between the parties expired.
Thereafter the respondent sought leave to re-commence proceedings notwithstanding, as he understood it, the time for bringing those proceedings had expired. That leave was refused by the same judge who had struck out the respondent’s initiating application. In the course of his reasons for refusing that leave, his Honour observed that his order dismissing the respondent’s application had not finally disposed of the proceedings between the parties. Nonetheless, he proceeded to consider the application for leave as if it had.
The respondent successfully appealed the order refusing leave, and the Full Court remitted the determination of the respondent’s application for leave to another judge of the Federal Circuit Court. It is to be observed that no point as to whether leave was in fact required was raised on that appeal.
That judge to whom the re-determination of the issue was referred, the primary judge in the instant appeal, considered the respondent’s application and granted leave to commence proceedings. In her reasons, and as part of setting out the history of the matter, the primary judge noted and accepted that the earlier order dismissing the respondent’s application had not finally disposed of the proceedings between the parties because it had not dismissed the appellant’s response in the earlier proceedings. However, like her predecessor, she too proceeded to consider the question of leave to commence proceedings on the basis that both parties accepted that leave was necessary.
The appellant appealed the primary judge’s granting of leave to commence proceedings and it was in the course of this appeal that the respondent’s counsel took the point that leave was not, in fact, required. The respondent’s counsel also argued that there being no requirement to seek leave, the order granting it was made without jurisdiction. These points were accepted by the Full Court.
That being the case, the primary judge’s order granting leave was made without jurisdiction, was set aside and the appeal dismissed.
Given the unusual way in which this matter had reached its denouement, we sought written submissions from the parties on the question of costs. Submissions were received on behalf of the respondent and none was received from or on behalf of the appellant. Correspondence suggested that her lawyer had ceased to act for her.
We then turn to consider the question of costs in this matter unassisted by submissions from the appellant.
Costs
Although the usual position in proceedings under the Act is that each party shall bear his or her own costs (s 117(1)), if there are circumstances that justify it doing so, the Court may make such an order as it considers just (s 117(2)). In considering whether such an order should be made, the Court must have regard to the matters set out in s 117(2A).
Of those matters, we first note that the appeal has been wholly unsuccessful.
Secondly, in submissions going to the appellant’s conduct of the proceedings, it was suggested that her resistance to the respondent’s application for leave was “extraordinary” and, had she not appealed the order granting leave, the property proceedings would have been concluded as between the parties without the attendant cost of the appeal.
While that might be the result now clear in hindsight, it cannot be forgotten that the respondent too engaged the court by seeking leave notwithstanding the acknowledgement by the first judge of the Federal Circuit Court that his order had not concluded proceedings between the parties. Equally too, the primary judge here acknowledged that the earlier orders had not finally disposed of the proceedings between the parties, and she too proceeded to grant leave as if it had.
Seen in that light and taking into account that those acting for the respondent sought leave and appealed its refusal in the light that proceedings had not been concluded, the appellant’s appealing the order granting leave is not properly regarded as being one of “extraordinary” resistance.
There is, however, some force in the submission that notwithstanding the foregoing, at least from the delivery to the appellant’s lawyers of the respondent’s Summary of Argument, they were on notice that the primary judge’s jurisdiction to make the order was challenged and yet no submissions were made in response. Further, written submissions were required to address this seminal question and they were considered in the principal judgment in this appeal.
Turning then to the financial circumstances of each of the parties. Little is known of the appellant’s present financial circumstances. However, in her Honour’s judgment on the leave application, the primary judge noted at [40]:
...
a) there was an amount of 40% of the net proceeds of sale of the former matrimonial home held in trust in the joint names of the parties. Without the knowledge or consent of the husband, that sum, together with interest, was distributed as to 100% to the wife being a sum of $294,840.37. The de fact[o] husband had a clear claim in respect of those monies which remained outstanding despite the cessation of the Court proceedings. He sought to secure those funds post the dismissal of the proceedings. The wife acted to retain the distribution of those funds solely to her;
b)the husband had an interest in the real property in New Zealand by virtue of s.90SM(4) of the Act. There has been no accounting to the husband in respect of this interest which was land held in the wife’s name and sold by her in May 2017. The net proceeds of sale were $146,113.26. These monies have been retained by the wife and expended by her on legal costs; supporting her mother; gifts to her sons; furniture; and a holiday as claimed by her;
c) both the husband and wife have cashed in their superannuation entitlements with the wife’s entitlements considerably exceeding that of the husband in an apportionment of $20,000 to the husband and approximately $130,000 to the wife;
…
The respondent’s submissions concede that while the primary judge’s reasons suggest that the appellant received a large part of the parties’ joint assets, little is known of what remains or what her present financial circumstances are.
Nevertheless, we are of the view it is just that a costs order should be made in favour of the respondent in the sum particularised by him, and we will make the order sought.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ,
Ainslie-Wallace & Watts JJ) delivered on 10 March 2020.
Associate:
Date: 10 March 2020
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