Grange and Grange and Ors (Costs)

[2014] FamCA 230

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE AND ORS (COSTS) [2014] FamCA 230

FAMILY LAW – COSTS – Where an application is made for costs – Where the husband is an undischarged bankrupt.

Family Law Act 1975 (Cth) ss 117(1), 117(2)

APPLICANT: Ms Grange

FIRST RESPONDENT: Mr Grange

SECOND RESPONDENT: Ms A

THIRD RESPONDENT: Ms B

FILE NUMBER: ROC 580 of 2011

DATE DELIVERED: 9 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 February 2014
(with Submissions in relation to costs being received 12 March 2014)

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shoebridge

SOLICITOR FOR THE APPLICANT: Madden Solicitors

FOR THE FIRST RESPONDENT: Mr Grange in Person

FOR THE SECOND RESPONDENT: Ms A in Person

FOR THE THIRD RESPONDENT: No Appearance

COUNSEL FOR MS H: Ms Sweetapple

SOLICITOR FOR MS H: Lember and Williams

Orders

1. The Husband, Mr Grange, shall pay Ms H’s costs of and incidental to responding to the Husband’s Application in a Case against her to have her joined as a party, such costs to be agreed or assessed by a Registrar in accordance with the Rules on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange and Ors (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 580 of 2011

Ms Grange

Applicant

And

Mr Grange

First Respondent

And

Ms A

Second Respondent

And

Ms B

Third Respondent

REASONS FOR JUDGMENT

1. On 17 February 2014, I heard an application by the husband, Mr Grange, for a number of orders in property adjustment proceedings between him and his former wife, with one of their daughters and his mother already joined as second and third respondents in the proceedings. 

2. One of the orders the husband sought on that day was an order that another of the daughters of the husband and the wife be joined as a respondent to the property adjustment proceedings. 

3. As I said in my Reasons for Judgment delivered on 20 February 2014, the husband’s case for joinder of the other daughter, distilled as well as it could be from the material that the husband relied upon, seemed to be that a property registered in that daughter’s name is actually beneficially owned by the husband and the wife. 

4. That other daughter, Ms H, was represented by counsel at the hearing on 17 February.  After hearing submissions from that barrister and considering the evidence relied upon by Ms H, I quickly determined that the husband’s argument for joinder had absolutely no merit as the very issue that the husband was arguing had previously been litigated by him in the Supreme Court of Queensland and determined categorically against him by judgment of that Court in favour of Ms H in July 2011.

5. At the end of the hearing on 17 February, counsel for Ms H made application for an order that the husband pay her client’s costs of and incidental to the application against her, which had been dismissed by me.  I did not have time to hear and determine that application on the day and directed that written submissions from each side be filed in due course.  Written submissions by counsel for Ms H were subsequently filed.  No submissions in response have been received from the husband, although many weeks have passed since the expiration of the time within which he was given to file any submissions in response. 

6. In support of the application for costs Ms H also filed and relied upon a further very brief affidavit in which she deposed to the fact that she had received a costs order in her favour from the Supreme Court of Queensland, the costs being determined to be $85,000.  She deposed to the fact that the husband has not paid her any of those costs to this point in time.

7. Both Ms H and her counsel readily acknowledge that the husband is now an undischarged bankrupt.  Notwithstanding that fact, counsel for Ms H submits that the Court would be satisfied that the circumstances justify making a costs order in favour of Ms H against the husband.

8. Notwithstanding the existence of the statutorily stated principle that each party to proceedings under the Family Law Act shall bear his or her own costs, a discretion is given to the Court to make costs orders as it considers just if it is of the opinion that there are circumstances that justify it in doing so.[1]  Counsel for Ms H submitted that the circumstances in this case justify a costs order being made against the husband because his conduct in seeking to join Ms H to the property adjustment proceedings on the basis that he was asserting was unreasonable and, having regard to the clear determination of the same argument in the Supreme Court litigation, clearly vexatious.  She submitted that that vexatious conduct has caused Ms H to incur further legal costs defending this application to be joined in these property adjustment proceedings, costs that she can ill afford.

   [1]          See sections 117(1) and 117(2).

9. I accept the submission.  The husband’s application to have Ms H joined as a party was wholly unsuccessful and for reasons that, in my opinion, would have been abundantly clear to the husband before he filed the Application to have her joined as a respondent.  As I said in my judgment delivered on 20 February, there was a clear element of “tit for tat” response in the husband’s application due to his unhappiness about his other daughter, who is in favour with him, being joined as a respondent in the property adjustment proceedings.

10. I am indeed conscious of the fact that the husband is an undischarged bankrupt.  However, I do not regard that as a factual circumstance in this case that would justify a determination not to make a costs order against him in these proceedings. As counsel for Ms H submitted, correctly in my view, claims that are clearly and obviously unmeritorious should not be brought in this court.  Parties cannot come to this court making such claims with impunity.

11. So satisfied, I will order that the husband pay Ms H costs of and incidental to responding to the husband’s Application in a Case against her to have her joined as a party, such costs to be agreed or assessed by a registrar in accordance with the Rules on a party and party basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 April 2014.

Associate: 

Date:  9 April 2014