Farrand & Mahdi (No. 2)

Case [2021] FamCA 168

FAMILY COURT OF AUSTRALIA

Farrand & Mahdi (No. 2) [2021] FamCA 168

File number(s): BRC 11658/2018
Judgment of: CAREW J
Date of judgment: 26 March 2021
Catchwords:

FAMILY LAW – COSTS – Adjournment – Where the maternal grandmother contends that the determination of the costs application should be adjourned until after the determination of her appeal – Where the maternal grandmother argues that the granting of the ‘stay’ would avoid both parties incurring potentially unnecessary legal costs – Where costs already incurred in preparation of written submissions – Where hearing occurs in chambers – Where maternal grandmother may exercise her right to appeal against costs order and seek that it be heard at the same time as the appeal – application to adjourn dismissed.

FAMILY LAW – COSTS – Between parties – Where the father seeks an order that the maternal grandmother pay his costs on an indemnity basis – Where the maternal grandmother opposes any order for costs – Whether the maternal grandmother was wholly unsuccessful in the proceedings – Where there is no exceptional circumstance that would warrant costs to be ordered on an indemnity basis – Where there are circumstances justifying the maternal grandmother contributing to the father’s legal costs in a fixed sum within 30 days of the determination of an appeal against the substantive order.
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:

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

Collins & Collins (1985) FLC 91-603

Farrand & Mahdi [2020] FamCA 875

Fitzgerald v Fish sub nom PBF v TRF (FLR) (2005) 191 FLR 294

Genesalio & Genesalio (No 2) [2020] FamCAFC 180

Idoport Pty Ltd v National Australia Bank Limited [2007] NSWSC 23

Jackson & Balen [2009] FamCAFC 131

Kohan and Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Murray & Murray [2020] FamCAFC 293

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Pera & Pera (2008) FLC 93-372
Penfold v Penfold (1980) 144 CLR 311
Prantage v Prantage (2013) 49 Fam LR 197

Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

Salt & Salt (No. 2) [2020] FamCA 170

Number of paragraphs: 53
Date of last submission/s: 12 March 2021
Date of hearing: Heard on the papers
Place: Brisbane
Solicitor for the Applicant L&S Lawyers
Counsel for the Respondent Dr Brasch QC
Solicitor for the Respondent Murdoch Lawyers

ORDERS

BRC 11658/2018
BETWEEN:

MS FARRAND

Applicant
AND:

MR MAHDI

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

26 MARCH 2021

THE COURT ORDERS THAT:

1.Ms Farrand contribute to the legal costs and outlays incurred by Mr Mahdi in the sum of $50,000 payable within 30 days of the determination of appeal number NOA76/2020.

2.All outstanding 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…

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AGLC
Farrand & Mahdi (No. 2) [2021] FamCA 168
Case
[2021] FamCA 168
Decision Date

CaseChat Overview and Summary

In *Farrand & Mahdi (No. 2)*, the proceedings concerned a costs application brought by the father, Mr. Mahdi, against the maternal grandmother, Ms. Farrand. Mr. Mahdi sought an order that Ms. Farrand pay his costs on an indemnity basis, while Ms. Farrand opposed any costs order and sought an adjournment of the costs application until after the determination of her appeal against the substantive orders. The matter was heard by Carew J in chambers.

The primary legal issues before the court were whether to grant the maternal grandmother's application to adjourn the costs application, and whether to order the maternal grandmother to pay the father's costs, and if so, on what basis. The court was required to consider the purpose of costs orders, the discretion vested in the court under section 117 of the *Family Law Act 1975* (Cth), and the factors relevant to the exercise of that discretion, including the conduct of the parties and whether a party had been wholly unsuccessful.

Carew J dismissed the application for adjournment, reasoning that as the matter was heard in chambers and written submissions had already been filed, an adjournment would not result in cost savings. The court noted that the maternal grandmother's concern about paying costs before her appeal was determined could be addressed by stipulating a payment date after the appeal. The court clarified that costs orders are compensatory, not punitive, and rejected the submission that determining the costs application would undermine public confidence. Regarding the costs order itself, the court found no exceptional circumstances to warrant an indemnity basis for costs, but determined that circumstances justified the maternal grandmother contributing to the father's legal costs.

The court ordered that Ms. Farrand contribute to the legal costs and outlays incurred by Mr. Mahdi in the sum of $50,000, payable within 30 days of the determination of the appeal. All other outstanding applications were dismissed.

Orders

Orders of the court

BRC 11658/2018

BETWEEN:

MS FARRAND

Applicant

AND:

MR MAHDI

Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

26 MARCH 2021

THE COURT ORDERS THAT:

1. Ms Farrand contribute to the legal costs and outlays incurred by Mr Mahdi in the sum of $50,000 payable within 30 days of the determination of appeal number NOA76/2020.

2. All outstanding 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The father opposes the adjournment of the hearing of his costs application and submits that “[i]f the maternal grandmother wishes to appeal any unfavourable costs order (if made), then she can go about it in the usual way, and then seek a stay. It is submitted that costs are not intended to be punitive but compensatory”. Conclusion – adjournment I am not persuaded to adjourn the determination of the costs application. As the matter is being determined in chambers and written submissions have already been filed, I fail to see any costs savings for the parties if the determination of the application is adjourned. The maternal grandmother’s understandable concern about being required to pay any costs award prior to the determination of the appeal can be addressed by providing in any order that the time for the payment of any costs occur after the determination of the appeal in the substantive matter. The maternal grandmother misunderstands the purpose of costs orders. Costs are awarded as compensation not as a punitive measure.[2] I reject the submission by the maternal grandmother that a determination of the costs application at this time will “undermine public confidence in the administration of justice”. In the event a costs order is made, the maternal grandmother may exercise her right to appeal that decision and seek that it be heard at the same time as the appeal against the substantive decision,[3] thus saving the costs of appearance at any further appeal. [2] Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ), 563 (Toohey J), and 567 (McHugh J); See also: Murray & Murray [2020] FamCAFC 293 at [98] (“Murray & Murray”).[3] See for example: Pera & Pera (2008) FLC 93-372; Genesalio & Genesalio (No 2) [2020] FamCAFC 180; Murray & Murray (n 2).HOW COSTS APPLICATIONS ARE DETERMINED Although each party generally bears their own costs in this jurisdiction (s 117(1) of the Family Law Act 1975 (Cth) (‘the Act’)), the Court has a broad discretion[4] to make such order as to costs as the Court considers just where there are circumstances that justify it in doing so (s 117(2)). [4] Collins & Collins (1985) FLC 91-603 at 79, 877. An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[5][5] Penfold v Penfold (1980) 144 CLR 311 at 315. In the exercise of the discretion to award costs, regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant. Those factors are as follows:(a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g)such other matters as the Court considers relevant.

Ratio Decidendi

Legal Principle Established

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