FINCH & FINCH (No.3) - [2020] FCCA 72

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & FINCH (No.3)

[2020] FCCA 72

Catchwords:
FAMILY LAW – COSTS – Costs applications by the husband following final property hearing – Wife’s unreasonable conduct – findings that she had wasted significant time on various unsuccessful issues in the trial – unsubstantiated propositions advanced without any expert evidence to validate such an approach – makes false claims of husband misappropriating $500,000.00 – wife’s dishonesty – Costs relating to application for injunction to secure a lump sum for costs – costs for defending wife’s unsuccessful stay application – costs of the costs application.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Collins and Collins (1985) FLC 91-603
Penfold v Penfold [1980] HCA 4
Kohan and Kohan [1992] FamCA 116
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Monroe & Monroe [2009] FamCAFC 221

Applicant:

MR FINCH

Respondent:

MS FINCH

File Number:

BRC 11625 of 2015

Judgment of:

Judge Willis

Hearing date:

29 May 2019

Date of Last Submission:

28 June 2019

Delivered at:

Cairns

Delivered on:

31 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Linklater-Steele

Solicitors for the Applicant:

Ritt Law

Counsel for the Respondent:

Mr Page Q.C.

Solicitors for the Respondent:

Porta Lawyers

ORDERS

Pursuant to section 117 (2) of the Family Law Act 1975 and the husband’s Amended Application in a Case filed on 28 June 2019, the wife is to pay the husband’s costs, including reserved, of and incidental to the following applications, such sums totalling $218,332.88:
(a)Costs of and incidental to the substantive proceedings fixed at $146,523.76;
(b)Costs of and incidental to the Costs Application fixed at $42,000.00;
(c)Costs of and incidental to the Stay Application fixed at $17,301.80;
(d)Costs of and incidental to the Application to preserve funds fixed at $10,507.32;
(e)Costs of perfecting the Orders fixed at $2,000.00.
Total Costs: $218,332.88
Such sums as ordered to be paid under these orders shall at first instance be paid from the preserved funds held in the trust account of the husband’s solicitors pursuant to Orders of 28 May 2019 (“the trust account”) within seven (7) days from the date of these Orders. These Orders shall be sufficient authority for the husband’s solicitors to disburse the preserved funds in accordance with the terms of this Order.
That upon payment to the husband of all money payable under the costs Orders made herein (totalling $218,332.88) that the remainder of the preserved funds held in the trust account shall be paid to the wife, and this Order shall be sufficient authority for the husband’s solicitors to disburse the preserved funds in accordance with the terms of this Order.
In the event the preserved sum is insufficient to pay out all of the amounts to be paid to the husband (totalling $218,332.88), the wife shall pay any outstanding amount to the husband within twenty-one (21) days from the date of this Order.
That in the event the wife neglects, refuses or fails…

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.

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Details

Case: [2020] FCCA 72
Decision Date: 31 January 2020

CaseChat Overview and Summary

In *Finch & Finch (No.3)*, Judge Willis considered an application by the husband for costs following a final property hearing. The dispute centred on the wife's conduct during the proceedings, which the husband alleged involved wasting significant time on unsuccessful issues, advancing unsubstantiated propositions without expert evidence, and making false claims of misappropriation.

The court was required to determine whether the wife's conduct warranted an order for her to pay the husband's costs, and if so, to what extent. This involved assessing the reasonableness of the wife's actions and the impact of her dishonesty on the litigation process.

Judge Willis found that the wife's conduct, including her dishonesty and the advancement of unsubstantiated claims, justified an order for costs against her pursuant to section 117(2) of the *Family Law Act 1975*. The court ordered the wife to pay the husband's costs totalling $218,332.88, encompassing the substantive proceedings, a costs application, a stay application, an application to preserve funds, and the costs of perfecting the orders. These costs were to be paid initially from preserved funds, with any shortfall to be paid by the wife, and interest to accrue on any outstanding balance.

Orders

Orders of the court

Pursuant to section 117 (2) of the Family Law Act 1975 and the husband’s Amended Application in a Case filed on 28 June 2019, the wife is to pay the husband’s costs, including reserved, of and incidental to the following applications, such sums totalling $218,332.88:

(a)Costs of and incidental to the substantive proceedings fixed at $146,523.76;

(b) Costs of and incidental to the Costs Application fixed at $42,000.00;

(c)Costs of and incidental to the Stay Application fixed at $17,301.80;

(d) Costs of and incidental to the Application to preserve funds fixed at $10,507.32;

(e)Costs of perfecting the Orders fixed at $2,000.00.

Total Costs: $218,332.88

Such sums as ordered to be paid under these orders shall at first instance be paid from the preserved funds held in the trust account of the husband’s solicitors pursuant to Orders of 28 May 2019 (“the trust account”) within seven (7) days from the date of these Orders. These Orders shall be sufficient authority for the husband’s solicitors to disburse the preserved funds in accordance with the terms of this Order.

That upon payment to the husband of all money payable under the costs Orders made herein (totalling $218,332.88) that the remainder of the preserved funds held in the trust account shall be paid to the wife, and this Order shall be sufficient authority for the husband’s solicitors to disburse the preserved funds in accordance with the terms of this Order.

In the event the preserved sum is insufficient to pay out all of the amounts to be paid to the husband (totalling $218,332.88), the wife shall pay any outstanding amount to the husband within twenty-one (21) days from the date of this Order.

That in the event the wife neglects, refuses or fails to pay the total of the costs of $218,332.88 as ordered herein within twenty-one (21) days from the date of this Order, the wife shall pay interest on any outstanding balance with such interest to accrue and be calculated in accordance with the provision of the Family Law Act to date of final payment.

That from the date of this Order:

(a)The total costs ordered to be paid to the husband including any unpaid portion of it, together with any interest accrued, is declared to be a debt owed by the wife to the husband; and

(b) In any proceedings including any actions for enforcement, the outstanding balance of the debt at any relevant time, shall be conclusively proved by the solicitor for the husband providing a signed memorandum as to the calculation of total debt balance including any interest component.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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