Farrow and Farrow (No 3)

[2020] FamCA 961

FAMILY COURT OF AUSTRALIA

FARROW & FARROW (NO. 3) [2020] FamCA 961

FAMILY LAW – COSTS – Interim – Where the husband seeks that the wife pay his costs of an interim hearing – Where consent orders made at that interim hearing were set aside – Where the husband’s costs incurred at that interim hearing have been completely thrown away through no fault of his own – Orders made.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Farrow

RESPONDENT: Ms Farrow

FILE NUMBER: BRC 5077 of 2020

DATE DELIVERED: 19 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: Submissions received 9 October 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Damien Greer Lawyers

Orders

1. That within 28 days of the date of these Orders the wife shall pay to the husband the sum of $11,035.20 for the husband’s costs of and incidental to the Court event on 22 June 2020.

2. That the wife shall also pay the husband’s costs of and incidental to this Application in a Case as may be agreed between the parties or, absent agreement, as determined in accordance with the Family Law Rules 2004 (Cth) on a party and party basis.

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 Farrow & Farrow 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 BRISBANE

FILE NUMBER: BRC 5077 of 2020

Mr Farrow

Applicant

And

Ms Farrow

Respondent

REASONS FOR JUDGMENT

1. On 22 September 2020, I made orders and provided written reasons in the determination of an interim dispute between these parties relating to their property and financial affairs. Consideration of those written reasons will provide an understanding as to the basis of the husband’s application for costs now being determined.

2. In summary, the husband filed an Application in a Case on 7 May 2020 and it was listed for hearing before me in a Judicial Duty List on 22 June 2020. On that day, both parties were represented by solicitors and experienced counsel. The Court was told that settlement of the interim dispute had been reached in all respects and was asked to make Orders with the consent of the parties in terms they had agreed upon. The Court did that.

3. Later in June, the husband filed another application seeking enforcement of the consent orders. The wife responded, telling the Court that her consent to the making of the Orders on 22 June 2020 had not been a true consent. She attributed responsibility for that to her former solicitors. I heard the competing applications of the parties and delivered the judgment on 22 September. In that judgment, I wrote that I would entertain any application for costs made by the husband for his costs thrown away by the fact that the hearing on the 22 June 2020 came to naught.

4. The husband has made such an application and filed written submissions in support of it. The wife has not filed a response and has not filed any written submissions.

5. The solicitors for the husband have submitted that a costs order as sought is justified because:

   (a)The husband’s costs of and incidental to the hearing of 22 June 2020 were totally thrown away by reason of the Orders of 22 September 2020 which set aside the Orders made 22 June, resulting in the need to rehear the husband’s earlier interim application;

   (b)The husband’s counsel and solicitor spent the 22 June hearing negotiating in good faith with the wife’s solicitor and counsel and that was of no utility whatsoever in the end;

   (c)The wife has the ability to seek costs against the solicitor who acted on her behalf on 22 June; and

   (d)The husband cannot seek an order against the wife’s solicitor who acted for her on that day as he is not a party to these proceedings.

6. I am quite satisfied that the circumstances of the matter justify a departure from the s 117(1) general provision that each party to proceedings under the Family Law Act 1975 (Cth) shall bear his or her own costs. The husband’s costs of 22 June were completely thrown away by him through absolutely no fault on his part. His legal representatives had no reason to consider that the wife’s legal representatives on the day did not have authority to negotiate with them and to enter into an agreed resolution of the interim dispute that day. The cause of that, I already determined, lay in the circumstances of the relationship that existed between the wife and her solicitors. In the first instance, as between the husband and the wife, I consider it is completely just to make an order that the wife to pay the husband’s costs thrown away on that day in June. The wife, though represented, has not even mounted any opposition to the husband’s application nor put in any submissions in response to those relied upon by him.

7. In those submissions, the husband’s solicitors set out the costs the husband actually claims. The total is $11,035.20 being $4,032 for the solicitors’ fees, $6,000 for the fees of the experienced junior barrister who appeared and $1,003.20 in GST. No argument against the reasonableness of the quantum of those amounts claimed has been mounted.

8. I consider those amounts reasonable and will make an Order that the wife pay that amount. I will give her twenty eight days within to pay that amount. Whether she seeks to have her former solicitors pay some or all of that is a matter now entirely for her.

9. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 November 2020.

Associate: 

Date:  19 November 2020