Entezam and Devi (No 2) - [2021] FamCA 122

FAMILY COURT OF AUSTRALIA

ENTEZAM & DEVI (NO. 2)

[2021] FamCA 122

FAMILY LAW – NATIONAL ARBITRATION LIST – costs – novel point argued – no earlier authority on point in this court – not unsound for respondent to have argued the point she did having regard to FCCA authority – s 117(1) order made.

Family Law Act 1975 (Cth) ss 13J, 13K, 117(1), 117(2A)
Family Law Regulations 1984 (Cth) reg 67Q(3)

Entezam & Devi [2021] FamCA 25
Fitzgerald v Fish (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Entezam

RESPONDENT:

Ms Devi

FILE NUMBER:

SYC

2844

2018

DATE DELIVERED:

16 March 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

On the papers

DATE OF FINAL SUBMISSIONS:

12 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Singh

SOLICITOR FOR THE APPLICANT:

Opal Legal

COUNSEL FOR THE RESPONDENT:

Mr A. Strik

SOLICITOR FOR THE RESPONDENT:

Jack Rigg Solicitors

Orders

Pursuant to s 117(1) each party bears his and her own costs of and incidental to the application to register the award the subject of my determination in [2021] FamCA 25.

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 Entezam & Devi 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 MELBOURNE

FILE NUMBER: SYC 2844 of 2018

Mr Entezam

Applicant

And

Ms Devi

Respondent

REASONS FOR JUDGMENT

Introduction

On 12 February 2021 I delivered reasons for judgment on the hearing of the contested application to register the arbitral award, concluding that Regulation 67Q(3) of the Family Law Regulations had not been validly invoked.[1] In consequence I ordered the registration of the award.
[1]Entezam & Devi [2021] FamCA 25.
The applicant in the proceeding in whose favour the award was registered has applied for an order under s 117(2A) of the Family Law Act requiring the respondent to the proceeding to pay costs in the sum of $8,111.40.
The applicant relies on several grounds[2] under s 117(2A). He contended that the respondent was wholly unsuccessful in resisting the application to register the arbitral award. He also submitted that the applicant had obtained a better outcome than was offered pursuant to an offer of compromise made by the respondent.
[2] He relied on four but his counsel pressed two.

Synopsis

For the reasons that follow, in my view an order should be made under s 117(1) of the Family Law Act requiring each party to bear his and her own costs.

Consideration

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Entezam and Devi (No 2)

Details

AGLC: Entezam and Devi (No 2) [2021] FamCA 122
Case: [2021] FamCA 122
Decision Date

CaseChat Overview and Summary

In *Entezam & Devi (No 2)*, the Family Court of Australia considered an application for costs following a contested application to register an arbitral award. The applicant sought an order for costs under section 117(2A) of the *Family Law Act 1975* (Cth), arguing that the respondent was wholly unsuccessful in resisting the registration and had obtained a worse outcome than an offer of compromise. The court was required to determine whether the respondent's opposition to the registration of the arbitral award was so unsuccessful or unreasonable as to warrant a costs order against her, and whether the applicant's grounds for seeking costs under section 117(2A) were made out.

The court's reasoning centred on the novel point raised regarding the interpretation of Regulation 67Q(3) of the *Family Law Regulations 1984* (Cth). The applicant had successfully argued that the respondent's grounds for challenging the award did not fall within the scope of "any reason" contemplated by the regulation, as they were not connected to the validity of the arbitral process, the parties' consensus, or the integrity of the process. However, the court noted that prior to its decision, several Federal Circuit Court authorities had interpreted Regulation 67Q(3) as being synonymous with the grounds for setting aside an award under sections 13J and 13K of the *Family Law Act*. Consequently, the court found that the respondent had a rational jurisprudential basis for her challenge, which, although ultimately unsuccessful, was not untenable and accorded with prevailing authority at the time.

Given that the respondent's arguments were based on existing Federal Circuit Court authority and that the point before the court was novel in the Family Court, the judge determined that it was appropriate for the respondent to have raised the arguments she did. The court found no merit in the applicant's submissions under sections 117(2A)(c) and (e), concluding that while the respondent failed in her opposition to registration, she was entitled to take the points she did. Furthermore, the court found that issues relating to offers of compromise were not relevant to the application concerning the registration of the award. Accordingly, the court made an order under section 117(1) of the *Family Law Act*, requiring each party to bear their own costs of and incidental to the application to register the award.

Orders