Greenwood and Greenwood (No 2)

[2009] FamCA 1077

FAMILY COURT OF AUSTRALIA

GREENWOOD & GREENWOOD (NO. 2) [2009] FamCA 1077

FAMILY LAW – COSTS – s 79A application – Dismissed – s 117 – Costs order against the husband

APPLICANT: Ms Greenwood

RESPONDENT: Mr Greenwood

FILE NUMBER: TVC 1144 of 2007

DATE DELIVERED: 17 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 3, 24 & 26 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T Kirk SC

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers, Brisbane, Qld

COUNSEL FOR THE RESPONDENT: Mr J Rivett

ORDERS

IT IS ORDERED

1. That the Husband pay the Wife’s costs of and incidental to his s 79A application filed on 17 August 2009, such costs as agreed to between the parties and failing agreement as taxed.

IT IS NOTED that publication of this judgment under the pseudonym Greenwood & Greenwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 1144 of 2007

MS GREENWOOD

Applicant

And

MR GREENWOOD

Respondent

REASONS FOR JUDGMENT

1. In this matter, the Wife makes application for an order for costs.

2. The background to that application includes observing that final orders for property settlement were made on 10 December 2008.  Those orders required the Husband to pay the Wife the sum of $5,750,000.00 within 90 days of that order.  The Husband failed to make the said payment.

3. On 22 July 2009, the Wife filed an enforcement application.

4. On 17 August 2009, the Husband filed a s 79A application seeking to set aside the original property order.

5. On the return date of that application, the 24th of August 2009, the Wife made application for summary dismissal of the Husband’s s 79A application.

6. On 26 August 2009, I delivered judgment dismissing the Husband’s s 79A application and I refer to the contents of that judgment.  At the conclusion of that hearing, the Wife made application for an order for costs.  I reserved that application and made directions requiring the Wife to file any written submissions within 21 days of that date and requiring the Husband to file any submissions in response within a further 21 days.

7. On 15 September 2009, the Wife filed written submissions.  The Husband had until 6 October 2009 to file any submissions in reply.  The Husband failed to do so by that date and has failed to provide any written submissions in the one-and-a-half months since the Wife filed her submissions.  I propose to proceed to judgment on the Wife’s application.

8. I am required to have regard to the provisions of the Family Law Act in determining this application.  Section 117(1) of the said Act prescribes the primary position to be adopted in these cases, which is to the effect that, ordinarily, each party should bear his or her own costs.  Section 117(2) provides that the Court has a wide discretion to make orders for costs and should make such orders as it considers just.

9. The provisions of s 117(2A) set out the matters which must be considered by the Court in the exercise of its discretion and I proceed to consider those matters that are relevant to the case before me:-

10. (a)      The Financial Circumstances of Each of the Parties

11. Simply stated, upon what now appears to be the inevitable sale of the grazing properties, each of the parties will have available to them substantial funds to be measured in several millions of dollars.

12. (b)      Were there any Parties in Receipt of Assistance by Legal Aid

13. Neither party is in receipt of Legal Aid.

14. (c), (d) & (e)   The Conduct of the Parties in Relation to the Proceedings, Whether the Proceedings were Necessitated by Failure of a Party to Comply with a Previous Order and Whether any Party to the Proceedings has been Wholly Unsuccessful in the Trial

15. In my view, it is these matters which provide the primary basis for an order for costs in this case.

16. It is to be firstly observed that the s 79A proceedings instituted by the Husband were proceedings instituted in reply to proceedings commenced by the Wife as a result of the Husband’s non-compliance with a final order of this Court.

17. The Husband was wholly unsuccessful in his application. 

18. In my view, a consideration of the nature of the Husband’s application is a very significant matter in my deliberations on the question of costs.  The application under review was an application designed to re-enliven the jurisdiction of the Court to determine a matter that had already been before the Court and finally determined by Consent Orders.  In my view, a robust approach is justifiable, if not required, in circumstances where parties have already incurred the costs of the substantive proceedings and are now facing subsequent further legal costs.  The Husband sought to move the Court to re-open the case and the Wife incurred costs to meet that exercise.  The Husband’s supplementary application was entirely unsuccessful and the Wife was successful in her application to have it summarily dismissed. 

19. In the circumstances, the Wife has been left with a bill of costs which I have determined by my earlier ruling she should not have been required to incur.  In my view, it would be entirely unjust and inappropriate for the Wife to be out-of-pocket for the expenses of defending the Husband’s unmeritorious extra application.

20. In the circumstances, I propose to make the following order.

21. ORDER

    1That the Husband pay the Wife’s costs of and incidental to his s 79A application filed on 17 August 2009, such costs as agreed to between the parties and failing agreement as taxed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: