GARRETT & DICKINSON (No.2)
[2016] FCCA 2276
•1 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARRETT & DICKINSON (No.2) | [2016] FCCA 2276 |
| Catchwords: HELD – Application of the Respondent with respect to costs is dismissed – each party to bear their own costs. |
| Legislation: Family Law Act 1975 (Cth), ss.44(6), 117(1), 117(2), 117(2A) |
| Cases cited: Penfold v Penfold (1980) 144 CLR 311 Latoudis v Casey (1990) 170 CLR 32 Browne v Green [2002] FamCA 791 |
| Applicant: | MR GARRETT |
| Respondent: | MS DICKINSON |
| File Number: | MLC 9896 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 5 May 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | Nevett Ford |
| Counsel for the Respondent: | Mr Dudderidge |
| Solicitors for the Respondent: | Nevile & Co |
ORDERS
The Application by the Respondent that the Applicant pay her costs of these proceedings pursuant to section 117(2) of the Family Law Act 1975 (Cth) be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Garrett & Dickinson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9896 of 2015
| MR GARRETT |
Applicant
And
| MS DICKINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 July 2016 I handed down judgment in this matter whereby the Application of the Applicant pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) for leave to issue an application out of time for alteration of the parties’ property interests was dismissed.
Upon delivery of the decision the Respondent’s solicitors were given leave to make oral application seeking orders that the Applicant pay the Respondent’s costs.
It was agreed the Respondent’s costs application would be determined by way of written submission. Orders were made setting a timetable for the receipt of submissions which are now to hand.
The Law
Section 117 of the Act is the primary provision of the Act in relation to costs. It provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
I intend to firstly consider whether there should be a cost order made in the Respondent’s favour before considering, if necessary, the method of calculation of any costs ordered to be paid.
The Respondent is seeking orders in the following terms:
2.1 That the Applicant pay the Respondents costs and disbursements of and incidental to the whole of these proceedings, including this application for costs.
2.2 The said costs to be paid on an indemnity basis, alternatively, on a party/party basis.
2.3 The said costs to be fixed, pursuant to one of the following, as the Court determines:
a. On an indemnity basis based on the Cost Agreement, in the amount of $54,367.50; or in the alternative;
b. On a party/party basis based on the Cost Agreement, in the amount of $35,502.50; or in the alternative;
c. On an indemnity basis based on Item 108 of Schedule 3 of the Family Law Rules 2004, in the amount of $29,175.55; or in the alternative;
d. On a party/party basis based on Item 108 of Schedule 3 of the Family Law Rules 2004, in the amount of $17,435.55; or in the alternative;
e. On a party/party basis based on Schedule 1 of the Federal Circuit Court Rules 2001, in the amount of $14,972.55.
2.4 The costs in respect to this application for costs be paid on a party/party basis fixed in the amount of $4,976.25.
2.5 That such costs to be paid within 28 days of the date of the orders.
The matter was first listed for mention at 9:45am on 8 December 2015. The matter was not heard until the afternoon as there was no appearance on behalf of the Applicant until that time. No explanation was offered by the Applicant’s representative for their late appearance on that day.
On 8 December 2015 procedural orders were made adjourning the matter to the Duty List on 2 February 2016. The parties’ costs of that day were reserved.
On 2 February 2016 the Respondent sought directions in respect of the filing of further material and indicated to the Court that he wished the Applicant to be available for cross examination in relation to the section 44(6) issue.
The Applicant indicated to the Court they were ready to proceed on that day and therefore sought their costs for the appearance on that occasion
Orders were made on 2 February 2016 listing the section 44(6) Application for hearing and again reserving the costs of the parties of that appearance
The section 44(6) Application proceeded by way of hearing on 5 May 2016. On that occasion both parties provided the Court with comprehensive written submissions and made oral submissions on the issue of section 44(6).
The Respondent’s solicitor briefly cross-examined the Applicant.
It is the submission of the Respondent that the Applicant should pay the entirety of the Respondent’s costs of these proceedings, including the costs reserved from 8 December 2012 and 2 February 2016.
In paragraph 6.8 of the Respondent’s written submissions the relevant law and principles applicable to an Application under section 117 of the Act was set out as follows:
a. Cost orders are compensatory, to indemnify the successful party against the expense to which it has been put by the proceedings. See Latoudis v Casey (1990) 170 CLR 32; Cassidy v Murray [1995] FamCA 91.
b. There is no priority placed on any one factor under ss. 117(2A), nor is there a need for more than one factor to be satisfied, any one factor may be sufficient. See Prantage & Prantage (Costs) [2014] FamCA 850 at 12; See also: LAC v TRF & LKL [2005] FamCA 158 at 41; See also: Brown v Brown [1998] FamCA 115 per Kay J at 17 “In many cases there will be an outstanding feature … that makes an order for costs appropriate, a feature which dominates the scene that it can outweigh any of the other s. 117(2A) considerations”.
c. It is a matter for the Court as to whether to exercise the discretion under ss. 117(2). There is no additional or special onus placed on an applicant for costs by s. 117. See: Penfold v Penfold (1980) 144 CLR 311 at 13.
d. Weight to be attached to any factor, under ss. 117(2A) is wholly discretionary and that discretion is broad. See: Thanh & Nor & Grimshaw [2015] FCCA 612 at 14.
e. It is not necessary to establish extraordinary or exceptional circumstances, merely circumstances which, at the absolute discretion of the Court, justify a cost order. See: Stoian & Fiening (Costs) [2014] FamCA 944 at 19.
In the written submissions of the Applicant the Applicant did not cavil with the Respondent’s written submissions on the law with respect to costs orders under section 117 of the Act. I too do not cavil with the very succinct summary of the law that is set out above
When considering the factors under section 117(2A) of the Act, the Respondent submitted in relation to each one as follows:
Section 117(2A)(a): Financial position of each of the parties
It is submitted that whilst the Respondent has considerable assets, she is 60 years of age and has health problems and therefore her future earning capacity is limited
Is further submitted that these proceedings have caused the Respondent to incur significant legal fees, whereby her existing funds have been diminished.
It is submitted on behalf of the Respondent that the Applicant is 43 years of age, a qualified (occupation omitted), in good health and is capable of working and earning significant income.
It is further submitted that at the date of the filing of his Initiating Application the Applicant had significant assets including an unencumbered home and cash of $120,000.
The Respondent submits that the Applicant has sufficient financial capacity to meet any costs order and that in any event, a lack of funds to meet a costs order does not necessarily mean a costs order cannot be made.
Section 117(2A)(b): Whether a party is in receipt of legal aid
This is not a relevant factor
Section 117(2A)(c): Conduct of the parties in relation to the proceedings
It is submitted on behalf of the Respondent that these proceedings related solely to the issue pursuant to section 44(6) of the Act and not to the question of property division as a whole.
It is therefore submitted on behalf of the Respondent that the fulsome material filed by the Applicant that went to property division prolonged the proceedings and caused the Respondent to incur considerable costs addressing those issues in her material.
It is submitted on behalf of the Respondent that of particular relevance is the conduct of the Applicant, highlighted by findings made in the judgement delivered on 5 July 2016 as follows:
a)Her Honour found that the Applicant’s reasons for delay were “unreasonable, inconsistent and implausible”.[1]
b)Her Honour found that “there is clear and undisputed evidence between the parties that the Respondent made the far greater contribution to the assets during and after their relationship”[2] which was in contrast to paragraphs (21), (22), (26), (28) and (29) of the Applicant’s Affidavit sworn 21 October 2015 and paragraphs (44), (45) and 49 of the Applicant’s Affidavit sworn 15 March 2016 in relation to his alleged financial contributions.
c)The Applicant did not dispute the Respondent’s evidence that a payment made by him of $60,000 in 2014 was termed by him to be in “the final settlement” between the parties.
d)Her Honour found that the Applicant commencing the proceedings “can be considered to be opportunistic”[3]in contrast to the explanation given by the Applicant for the basis of his commencing the proceedings as set out in paragraphs (41), (44), (47) and (48) of the Applicant’s Affidavit sworn 22 October 2015 and paragraph (42) of the Applicant’s Affidavit sworn 15 March 2016.
[1] Paragraph 123 of the judgment of 5 July 2016.
[2] Paragraph 127 of the judgment of 5 July 2016.
[3] Paragraph 125 of the judgment of 5 July 2016.
It is submitted on behalf of the Respondent that such conduct was totally within the Applicant’s knowledge before he commenced the proceedings and he therefore knew or ought to have known that such conduct would result in there being a finding made against him and cause the Respondent to unnecessarily incur costs.
It is therefore submitted on behalf of the Respondent that the Applicant’s conduct in commencing and maintaining the proceedings was opportunistic and the inaccuracies contained in his material as confirmed in the findings by the Court in its judgement, falls within the category of conduct relevant to determining the question of costs in the Respondent’s favour.
Section 117(2A)(d) Whether proceedings necessitated by failure to comply with previous orders
This is not relevant.
Section 117(2A)(e) Whether any party has been wholly unsuccessful
It is submitted on behalf of the Respondent that whilst he the Applicant has been wholly unsuccessful in these proceedings.
It is further submitted that the Applicant’s lack of success in these proceedings was predominantly, or at least in part due to the Applicant’s conduct in the proceedings as has been referred to under the heading of section 117(2A)(c).
It is also submitted on behalf of the Respondent that there was no difficult question of law and therefore the matter turned entirely on the particular facts and circumstances of the case, which were entirely within the knowledge of the Applicant before he commenced these proceedings.
It is therefore submitted on behalf of the Respondent that this factor is of significant relevance as to whether a costs order should be granted in the Respondent’s favour.
Section 117(2A)(f) Whether either party made an offer in writing to settle the proceedings
In addition to the Respondent’s written submissions in relation to the question of costs, the Respondent also relied on an Affidavit sworn by her solicitor David Dudderidge on 18 July 2016. Annexed to Mr Dudderidge’s Affidavit is a copy of correspondence by the Respondent from the Applicant’s solicitors dated 1 October 2015 in which they indicated that they acted on behalf of the Applicant and that their client “considers it is now an appropriate time to address a property settlement”.
Annexed to Mr Dudderidge’s Affidavit is a copy of correspondence sent by him on behalf of the Respondent to the Applicant’s solicitors dated 19 October 2015. Having addressed matters raised in the correspondence of 1 October 2015, the correspondence from Mr Dudderidge contains the following paragraphs:
“In all the circumstances your client has no entitlement to any adjustment of my clients assets, further, it appears that your client has obtained financial advantage from my client based on duress and/or false and misleading statements. In any event, the “standard application period” set out in section 44(5) of the Family Law Act 1975 (“the Act”) has lapsed, therefore there is no jurisdiction under the Act.
Should your client proceed further my client will seek that the amount paid to your client be returned with interest, plus any further adjustment in her favour that a Court or Tribunal with competent jurisdiction considers appropriate. Further, my client will rely on a copy of this letter together with previous correspondence in relation to the question of costs.”
It is submitted on behalf of the Respondent that the Respondent’s letter of 19 October 2015 ought to be seen as an “offer” in that it raised relevant matters going to the strength of the claim, gave the Applicant the opportunity to not proceed to litigation and put the Applicant on notice in respect of costs if he did.
Further, it is submitted on behalf of the Respondent that the letter reflected the final outcome of the case.
It is therefore submitted that in light of the Court’s findings, and in all the circumstances, it was entirely unreasonable for the Applicant to ignore the offer and commence proceedings.
The Respondent’s submissions made particular reference to the matter of Browne v Green [2002] FamCA 791 at 57 where the Full Court held:
“The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer was made to give it proper consideration, is something which very significant weight indeed ought normally be given”.
It is therefore submitted on behalf of the Respondent that this is a further significant factor of relevance to the question of whether costs should be ordered in the Respondent’s favour.
Section 117(2A)(g) Such other matters as the Court considers relevant
It is submitted on behalf of the Respondent that the age and health of the parties, actual or perceived power imbalance between the parties and the stress suffered by the Respondent as a result of these proceedings are all relevant factors.
It is also is submitted that a further relevant factor is the Respondent had no choice but to defend these proceedings, thereby incurring significant legal fees in the process with no reward or benefit to her other than the Application being dismissed.
It is submitted on behalf of the Respondent that in all of these circumstances an order for costs in favour of the Respondent should be made and the Applicant ought not have the benefit of Section 117(1) of the Act.
The Applicant’s submissions
It is submitted on behalf of the Applicant that each party should bear their own costs in accordance with the provisions of section 117(1) of the Act.
It is submitted on behalf of the Applicant that he should not be responsible for the reserved costs of 8 December 2015 and 2 February 2016.
In relation to 8 December 2015, it is submitted on behalf of the Applicant that despite the Respondent’s late filing of her Response, just one business day before the hearing date and without supporting Affidavit, the matter would probably not have proceeded other than by way of directions on that day.
It is further submitted that the late appearance by the Applicant’s counsel was no fault of the Applicant and was as a result of the briefed barrister becoming unwell and alternate Counsel being delayed by public transport problems.
In relation to the hearing on 2 February 2016, it is submitted that the Respondent solicitor gave no notice to the Applicant’s solicitor that he would seek to cross-examine the Applicant or would seek to file further material.
It is submitted that if the Respondent’s solicitors had given such notice, the matter could have been adjourned by consent in advance and costs saved for both parties.
It is submitted that whilst the Respondent should have been given every opportunity to properly prepare the hearing of 2 February 2016, she did not file her affidavit material until some six business days before the hearing and gave no reason for the further material that she sought to file not having been prepared for that hearing.
Rule 20.04 of the Federal Circuit Court Rules 2001 (Cth) provide that reserved costs follow the event unless the Court orders otherwise. It is submitted on behalf of the Applicant there is no basis for the Respondent to claim her costs of 2 February 2016. The Respondent filed her material late and was not ready to proceed on that day, unlike the Applicant whose Counsel had prepared written submissions on the question of the Application for Leave issue and was ready to proceed on that day.
In relation to the relevant factors under section 117(2A) of the Act, the Applicant, as did the Respondent, address each of the relevant factors in detail in the written submissions filed on the Applicant’s behalf.
Section 117(2A)(a): Financial position of each of the parties
It is submitted on behalf of the Applicant that the Respondent has significant assets in her name and that she is continuing to exercise a superior earning capacity.
On the basis of the Financial Statement filed by the Respondent on 22 January 2016, it is submitted the Respondent has net assets inclusive of superannuation of $2,700,000 and an annual income of $156,104.
Is it further submitted that the Respondent’s evidence in relation to her retirement plans and her alleged health issues was not tested by the Court.
It is submitted on behalf the Applicant that the argument put by the Respondent that the payment of legal fees has diminished the funds that could have been used for her own benefit applies to all litigants that come before the Court and is not a reason for the Court to exercise its discretion to make an order that a party pay the costs of another.
It is submitted on behalf of the Applicant that both parties have the capacity to pay their own legal fees and that the Respondent is more able to do so than the Applicant given her superior financial position.
Section 117(2A)(c): Conduct of the parties in relation to the proceedings
The Applicant agrees with the Respondent’s submission that the relevance of the conduct of the parties under this subsection is limited to the proceedings and is not concerned with conduct during the relationship or after separation that is not related to commencing or maintaining proceedings.
It is submitted on behalf of the Applicant that the Respondent is actually seeking to rely on the Applicant’s conduct during the relationship and post separation in the arguments put forward on her behalf as to why an Order should be made for the Applicant pay the Respondent’s costs.
The Applicant argues that the Respondent’s submission relies upon the Court not accepting the Applicant’s evidence as to the reasons for his delay in issuing proceedings and whilst that is relevant to the findings made in the substantive application, it is not relevant to a costs application.
It is further submitted on behalf of the Applicant that the Respondent’s submission relating to the payment of $60,000 by the Applicant in 2004 and the parties’ respective contributions to their assets is not matters related to how the Applicant conducted himself in the proceedings.
It is submitted that the Applicant caused no adjournments and he did not file irrelevant or prolix material. Whilst the Applicant certainly commenced the proceedings, it is submitted he did not prolong the proceedings unnecessarily and that the Respondent’s submissions in this regard conflate the issue of the parties conduct with whether or not the Applicant was wholly unsuccessful and should not have issued the proceedings in the first place.
It is further submitted on behalf of the Applicant that at the hearing of this matter on the 5 May 2015, the Respondent’s solicitor cross-examined the Applicant in relation to the date of the parties’ separation, contributions to the garden area at the Property D and Property T property and the value of the Applicant’s motor vehicles stored at the Property L property. It is submitted that the Respondent’s solicitor at no time cross-examined the Applicant in relation to the contributions made by the parties to the accumulation of their assets, the reasons given by the Applicant for his delay in issuing proceedings or his decision not to see a solicitor until he was out of time.
It is submitted on behalf of the Applicant that in these circumstances the adjournment of the matter to a half day hearing to allow time for cross-examination of the Applicant was unproductive as it was not focused on the matters the Court had to take into account when exercising its discretion to grant leave to proceed out of time.
Is it is therefore submitted that it was in fact the Respondent, not the Applicant, who delayed and prolonged the proceedings and unnecessarily added to her own legal costs.
Section 117(2A)(e) Whether any party has been wholly unsuccessful
It is submitted on behalf of the Applicant that whilst he was wholly unsuccessful in his application this must be considered in the context that leave could only be granted or refused. In this matter it was refused.
It is submitted on behalf of the Applicant that he had an arguable case. It is submitted that the Court found in the Applicant’s favour in relation to the first question to be answered under section 44(6) of the Act, being whether or not hardship would be caused to the party if leave were not granted.
It is submitted that the Applicant failed on the second question for the Court, being whether in the exercise of its discretion the Court would grant or refuse leave to institute the proceedings.
It is submitted on behalf of the Applicant that whilst the facts of the case were certainly known to the Applicant when he commenced the proceedings, he could not know what weight the Court would give to the various matters of relevance nor how the Court would exercise its discretion once hardship had been established.
It is submitted on behalf of the Applicant that his was not a hopeless case and that he genuinely believed he had a reasonable chance of being granted leave to proceed with his Application.
Section 117(2A)(f) Whether either party made an offer in writing to settle the proceedings
It is submitted on behalf of the Applicant that no offers were made by either party.
The Applicant submits that the correspondence from the Respondent’s solicitors to the Applicant’s solicitors dated 19 October 2015 is not “an offer” and essentially said that the Respondent would make a cross-claim against the Applicant if he were to institute proceedings against her and would seek costs against him in the event she were successful in her cross application.
It is submitted on behalf of the Applicant that the Respondent’s argument under this ground again conflates the considerations under subsection 117(2A)(e) as it really goes to the fact that the Applicant was unsuccessful and not that he unreasonably rejected an offer of settlement.
Section 117(2A)(g) Such other matters as the Court considers relevant
It is submitted on behalf of the Applicant that the age and health of parties are irrelevant to an Application for costs. It is further submitted that neither party produced evidence of having significant health issues that affect their financial circumstances or their capacity to meet their own legal costs.
Is further submitted on behalf of the Applicant that there was no evidence of any actual or perceived power imbalance between the parties or any explanation as to how this is relevant in an Application for costs.
In relation to the Respondent’s submissions that the litigation had been stressful, the Applicant submits that litigation is stressful for all involved and does not form the basis for a departure from the general rule that each party should bear their own costs.
In relation to the Respondent’s submission that she had no choice but to defend the proceedings, it is submitted on behalf of the Applicant that the Respondent was in the same position as any litigant before the Court who is served with an Application and must respond.
It is again submitted on behalf of the Applicant that this submission by the Respondent conflates these arguments with the submissions made under section 117(2A)(e) that the Applicant was wholly unsuccessful.
Conclusion
The crux of the Respondent’s submissions as to why the Applicant should pay her costs of these proceedings primarily falls under four of the factors set out under section 117(2A) of the Act. Firstly, the Applicant’s conduct of the matter, secondly the Applicant was wholly unsuccessful in his Application, thirdly the Applicant’s failure to accept an offer to resolve the proceedings and fourthly other relevant considerations.
In relation to the conduct of the Applicant, the Respondent’s submissions are that the proceedings were prolonged by the Applicant including in his affidavit material matters not relevant to the Application for Leave.
It was further argued that the Applicant’s conduct in including in his material matters which were found by the Court to not support the Applicant’s Application for Leave to proceed, is also a relevant factor.
It is submitted on behalf of the Applicant that he had caused no adjournments, did not file irrelevant or prolix material and there was nothing that he did in the conduct of the matter that unnecessarily prolonged proceedings.
It is submitted on behalf of the Applicant that the arguments of the Respondent under this heading are in fact those relevant to the Applicant being unsuccessful in the proceedings and not matters going to the conduct of the matter.
I agree with the Applicant’s submissions in this regard. That the evidence of the Applicant was such that I was not satisfied that it was appropriate to exercise my discretion to grant leave to proceed out of time of his Application is not a reflection of the manner in which he conducted the proceedings, which were done professionally and appropriately.
It is submitted on behalf the Respondent that the correspondence forwarded on her behalf by her solicitor on 19 October 2015 in which they put the Applicant on notice that if he pursued an Application for property orders against the Respondent, they would make a cross-application against him and pursue their costs if successful amounted to an offer of settlement which the Applicant rejected.
I reject that the correspondence from the Respondent’s solicitors was an offer of settlement which the Applicant inappropriately rejected. It was putting the Applicant on notice that if the Respondent was successful in the context of any Application she made to the court then she would pursue costs. This is not an offer but an indication to the Applicant of the risks he would face in the event he proved to be unsuccessful in his Application.
The Respondent also raised what was submitted to be other relevant considerations pursuant to section 117(2A)(g) of the Act. Reference was made to the age and health of the parties, to an actual or perceived power imbalance, to the stress of the litigation and to the fact that the Respondent had no choice but to defend proceedings that were commenced against her.
It was submitted on behalf of the Applicant that the matters as to age and health were not factors relevant to a costs application and I agree with him in that regard.
It was also submitted on behalf of the Applicant that there was no evidence of a power imbalance and if anything, it was the Respondent who is in a more powerful position given her greater financial resources. Again, I agree with the Applicant’s submissions in this regard.
It is submitted by the Applicant that the questions of the stress of the proceeding and the costs of litigation were matters relevant to all litigation and not factors upon which a costs order could be made. I agree with the Applicant in that regard.
The matter that is of greatest relevance to the Respondent’s application for costs is that the Applicant was wholly unsuccessful in his Application before the Court.
The matter for determination was the Application for leave to proceed out of time pursuant to section 44(6) of the Act. That Application was dismissed.
It is submitted on behalf of the Respondent there was no proper or justified basis for the Applicant’s claim.
The Respondent submits that the Applicant’s lack of success was due to the findings made by the Court in relation to the unreasonable inconsistent and implausible explanations for the delay given by the Applicant, the clear and undisputed evidence between the parties that the Respondent made by far the greater contribution, that the timing of the Application could be considered to be opportunistic and that the Respondent would have been severely disadvantaged if the matter had proceeded as she had moved on with her life with the expectation that all matters between the parties had resolved.
It is submitted on behalf of the Respondent that they were all matters well known to the Applicant before commencing proceedings and in those circumstances an order for costs should be made in the favour of the Respondent.
It is argued on behalf of the Applicant that whilst the Applicant was wholly unsuccessful in his Application in that leave was not granted, an application of that type is such that there can only be one of two outcomes, you’re either successful or you’re unsuccessful.
It is submitted on behalf of the Applicant that he had an arguable case. This is supported by the Court having found that hardship would be caused to the Applicant if leave were not granted under the first question to be determined in a section 44(6) application.
It is submitted on behalf of the Applicant that whilst the court made the decision not to exercise its discretion to grant the Applicant leave to institute proceedings, the matter turned on a number of particular facts and circumstances in the case and the weight that the Court gave to those matters.
It is submitted on behalf of the Applicant that whilst he certainly knew the facts of the case before he commenced the proceedings, he could not know what weight the Court would give to those various matters and how its discretion would be exercised once hardship had been established. Somewhat succinctly the Applicant submits that his was not a hopeless case.
It is therefore submitted on behalf of the Applicant that whilst he has been unsuccessful in the proceedings, the particular circumstances of the Application and that his was an application that was not without some chance of success are such that the Court should not exercise its discretion to depart from the usual provisions of section 117 that each party pay their own costs.
As has been previously set out in this judgment there is no priority placed on any one factor under section 117(2A) of the Act, nor is there a need for more than one factor to be satisfied. Rather, the Court will look at the particular circumstances of each case and determine whether it is an appropriate matter in which to exercise its discretion to depart from the usual provisions of section 117(1).
An Application for leave to proceed out of time can only have one of two results, it is either wholly successful or it is wholly unsuccessful. The Applicant on this occasion was wholly unsuccessful.
In this matter, the Applicant was unsuccessful in persuading me to exercise my discretion to give him leave to institute property proceedings out of time. Whilst I found the timing of that Application to be somewhat opportunistic, there is no doubt that the Applicant had an arguable case, given the finding that hardship would have been caused to the Applicant if leave were not granted.
As has been set out in this judgment, I have found that both parties have the capacity to meet their own costs. I take no issue in relation to the manner in which the Applicant conducted these proceedings. I am satisfied that there was no offer of settlement made which was inappropriately rejected by the Applicant nor were there any other relevant factors of any weight relevant to the determination of the costs issues.
In all these circumstances I am of the view that this is a matter where each of the parties should bear their own costs in accordance with the provisions of section 117(1) of the Act and the Application by the Respondent to the Applicant pay her costs is dismissed.
Not unlike an application for leave to make application out of time, a costs application is either successful or it is not.
In this matter the Respondent appropriately made an Application for her costs be paid by the Applicant in circumstances where the Applicant had been unsuccessful in his Application for leave to proceed out of time. She has not been successful in her Application for Costs. This however does not mean the Respondent should pay the Applicant’s costs of the application. Both parties will bear their costs relating to the costs application.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 1 September 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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