Gresham & Gresham (No 5)

Case [2024] FedCFamC1F 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gresham & Gresham (No 5) [2024] FedCFamC1F 23

File number(s): SYC 7914 of 2016
Judgment of: ALTOBELLI J
Date of judgment: 2 February 2024
Catchwords: FAMILY LAW – COSTS – Where the both parties seek costs – Where the husband seeks indemnity costs – Where the wife was wholly unsuccessful – Where the wife is ordered to pay costs in a fixed sum.    
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)

Cases cited:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Cross & Beaumont (2008) 39 Fam LR 389

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another (2005) 33 Fam LR 123; [2005] FamCA 158

Gresham & Gresham (No 4) [2023] FedCFamC1F 1090

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

Division: Division 1 First Instance
Number of paragraphs: 48
Date of last submission/s: 18 December 2023
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Watson & Watson Solicitors
The Respondent: Litigant in person

ORDERS

SYC 7914 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GRESHAM

Applicant
AND:

MS GRESHAM

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Within 56 days of these orders, the Respondent Wife is to pay the costs of the Applicant Husband fixed in the sum of $15,000.

2.Each party is to pay their own costs arising out of this costs application.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. The applicant husband (“the husband”) seeks an order for costs against the respondent wife (“the wife”) in respect of his Application in a Proceeding…

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AGLC
Gresham & Gresham (No 5) [2024] FedCFamC1F 23
Case
[2024] FedCFamC1F 23
Decision Date

CaseChat Overview and Summary

The case of Gresham & Gresham (No 5) involved a dispute between a husband and wife regarding costs in a family law proceeding. The matter was heard by the Federal Circuit and Family Court of Australia, Division 1. The husband sought indemnity costs and the wife opposed this application, instead seeking costs of her own. The wife was wholly unsuccessful in her enforcement applications and the husband sought to recover costs thrown away due to these unsuccessful applications.

The primary legal issue before the court was whether the husband was entitled to indemnity costs for the enforcement applications that were dismissed. This hinged on the conduct of the parties, their financial circumstances, and whether the wife’s enforcement applications were wholly unsuccessful. The court had to consider the well-established principles relating to costs in family law proceedings, particularly under s 117 of the Family Law Act 1975 (Cth).

The court found that the wife was wholly unsuccessful in her enforcement applications and that the husband was entitled to indemnity costs. In fixing the amount of the costs, the court considered the need to avoid further delay and inconvenience by setting a lump sum rather than taxing a bill. The court ordered that the wife pay the husband's costs in the sum of $15,000 within 56 days of the order. Each party was to bear their own costs of the application.

The final orders provided that the wife was to pay the husband's costs in a fixed sum of $15,000 within 56 days. Each party was to bear their own costs of the costs application.

Orders

Orders of the court

SYC 7914 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GRESHAM

Applicant

AND:

MS GRESHAM

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Within 56 days of these orders, the Respondent Wife is to pay the costs of the Applicant Husband fixed in the sum of $15,000.

2. Each party is to pay their own costs arising out of this costs application.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The wife opposes the husband’s application for costs and seeks that the husband pay her costs of and incidental to her enforcement applications in the sum of $7,500 to be paid within seven days of these orders. BACKGROUND This matter was listed for mention on 5 October 2023 regarding the wife’s Application – Enforcement filed 1 September 2023. Orders were made on that day for the husband to file an Application in a Proceeding and supporting affidavit in relation to the wife’s application, and for the wife to file a response and supporting affidavit in relation to the husband’s Application in a Proceeding. The matter was then listed for mention on 27 November 2023 regarding the AIP and the Application – Enforcement filed 22 November 2023 (noting that the wife filed a second superseding enforcement application rather than a Response to the AIP). Orders were made on the same day dismissing the Application – Enforcement filed 22 November 2023 and implementing Orders 6–7 (by consent) and Order 8 of the AIP. Judgment regarding Orders 2‑5 of the AIP was reserved. Orders were then made on 19 December 2023 implementing Orders 2–5 of the AIP: Gresham & Gresham (No 4) [2023] FedCFamC1F 1090 (“my reasons for judgment”). Judgment on the question of costs was reserved pending further submissions by the parties.PRESENT APPLICATION Orders were made on 27 November 2023 for the husband to file and serve a brief affidavit regarding the costs he asserts were thrown away, arising out of the dismissal of the wife’s enforcement applications, both on a party-party basis and an indemnity basis, and for the wife to provide written submissions in response. In support of his case, the husband relies upon the following material:(a)Application in a Proceeding filed 3 November 2023; and(b)His affidavit filed 11 December 2023. In support of her case, the wife relies upon the following material:(a)Application – Enforcement filed 22 November 2023; and(b)Her affidavit filed 18 December 2023.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that: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 the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]. CONCLUSION Doing the best the Court can on the evidence before it, the wife is to pay the costs of the husband fixed in the sum of $15,000. The wife will be given 56 days to pay. Each party is to pay their own costs arising out of this costs application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.