Hadfield and Walberts and Anor (No.2)

[2020] FCCA 539

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADFIELD & WALBERTS & ANOR (No.2) [2020] FCCA 539

Catchwords:
FAMILY LAW – Ruling on costs application.  

Legislation:

Family Law Act 1975 (Cth), s.117.

Cases cited:
Calderbank v Calderbank [1975] 3 All ER 333

Applicant: MS HADFIELD

First Respondent: MR WALBERTS

Second Respondent: MS WALBERTS

File Number: DGC 24 of 2019

Judgment of: Judge Burchardt

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Dandenong

Delivered on: 12 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Phaedonos

Solicitors for the Applicant: Phaedonos Law

Counsel for the First Respondent: Ms Nicholson

Solicitors for the First Respondent: Thexton Lawyers

ORDERS

1. There be no order as to costs.

2. The Respondent forthwith do all acts and things and sign all documents to transfer to the Applicant at the expense of the Applicant all right title and interest in Motor Vehicle F.

3. In the event that the Respondent refuses or neglects to execute a deed and/or instrument in compliance with the provisions of paragraphs of this order, the Registrar of the Federal Circuit Court of Australia at Melbourne or Dandenong is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the Respondent and do all acts and things to give validity and operation to the deeds and/or instruments.

IT IS NOTED that publication of this judgment under the pseudonym Hadfield & Walberts & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 24 of 2019

MS HADFIELD

Applicant

And

MR WALBERTS

First Respondent

MS WALBERTS

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The parties have in emails sent to my chambers following my issuing of judgment on 19 December 2019 raised a number of matters, and this matter has been listed today, to endeavour to bring the correspondence to an end.  It should be noted that I have indicated as a preliminary view that the Court is functus officio, given that I pronounced final orders then, and no one has sought to dissuade me from that, so the parameters in which I can alter my judgment are severely limited. 

2. It should be noted that in my judgment at paragraph 37, I observed that the pool was submitted to be not the subject of challenge by the applicant, and at paragraph 67 of the judgment, I detailed certain values as to the substantial chattels and properties that the parties had.  These matters arose under cross-examination of the respondent.  I adopted those values at paragraph 96. 

3. At paragraph 97, I dealt with the question of liabilities, and it should be noted that it is clear that although I may not have said this explicitly, that I rejected the respondent’s assertion that he had debts of $1.7 million, and I observe that that is to be taken from paragraph 100 and the schedule to the orders.  There matters stood, but on 19 December 2019, the applicant emailed seeking costs.  Plainly, that was within the time contemplated by rule 21.02.  On 20 December 2019, my associate indicated to the parties that the question of costs would be dealt with by written submissions limited to three pages. 

4. On 17 January 2019, the applicant forwarded written submissions, which essentially relied upon a Calderbank v Calderbank [1975] 3 All ER 333 (“Calderbank”) offer made on 21 October 2019. In that letter, the applicant calibrated the pool at some $2,796,083, and offered to settle for Motor Vehicle F with a value of $8,000, the $133,000 already paid to the applicant, together with a further $135,000. That offer was also calibrated as a 90.1 to 9.9 split.

5. No response was received from the respondent to that offer.  The offer was open on its face for 14 days.  I will come back to that.  In the ultimate, I made orders based on a pool of $2,429,000 and ordered relevantly that the applicant be paid an additional $150,480.  The sum claimed as costs was articulated in the written submissions as $18,415.50, these being costs following on from the Calderbank letter itself. 

6. Dealing with the letter of 21 October 2019, first, it was undoubtedly a Calderbank letter, because it says so.  The pool, excluding superannuation, was somewhat higher than I said it was.  There was obviously the offer of Motor Vehicle F and the additional $135,000.  It was open for 14 days and was expressly asserted to be made in accordance with what were described as the principles in Calderbank. 

7. The offer did not in terms say that indemnity costs would be sought in the event that the offer was beaten, and that is a relevant consideration, but by the same token, the use of the expression “the principles in Calderbank” would have made it reasonably apparent to the respondent’s solicitors that an indemnity costs order would be sought were the offer to be defeated. 

8. To go back a step in the email chain, on 6 January 2020, the applicant sought what I would describe as machinery orders in relation to Motor Vehicle F.  That was, it would appear, not the subject of response, but was conceded today to be inexorable in the face of the orders that I have made, and those orders will be made pursuant to the slip rule. 

9. On 13 January 2019, the respondent’s solicitors emailed the court seeking a slip rule amendment.  The matters raised are, in my view, inconsistent with my findings. 

10. I should interpolate and say that as in so many property cases, the battle during the actual Court proceeding itself was heavily focused upon the nature and extent of the de facto relationship.  Indeed, there was a point at which the respondent appeared to suggest there had never been one.  That is what the evidence was really overwhelmingly about. 

11. Nothing of any moment was said in submissions as to the question as to whether or not there was any dispute in respect of the pool.  I dealt with what I understood to be the matters in dispute.  Should it be that I am in error, then, of course, I will be corrected on appeal, but I would observe in passing that property cases, in my experience, are bedevilled by the fact that the parties concentrate on the things they are really bothered about, and tend to leave up in the air any ancillary issues which they have not, in fact, seen fit to articulate during the running. 

12. The Court has also received undated written submissions from the respondent, which exceed the three pages that I had described, but nothing turns on that for these purposes.  First of all, there is a complaint made about the late service of affidavits by the applicant on 16 October 2019, which led, it is said, to the adjournment on 17 October.  In fact, the respondent filed an Application in a Case seeking the adjournment, and that was granted.  No application was then made for the costs of the adjournment, nor for any reservation of such costs as far as I can see. 

13. There would be issues were that matter to be pressed both ways, because the respondent had filed an affidavit on 23 September 2019, and arguably the applicant’s material was simply responsive, noting that a number of the witnesses would have taken some tracking down.  Insofar as the respondent’s submissions impliedly suggest that the costs of adjournment should be paid to the respondent on an indemnity basis, notwithstanding that the written submissions also say that no costs are sought, I would not be disposed to grant them. 

14. I accept the submission in the written submissions of the respondent that there were no costs made in the parenting matter. This, however, was understandable. First, it followed a family report, which finally made, as it were, the child’s position clear. One would ordinarily have expected, had there been no property case, that section 117 would apply. The parenting part of the proceeding took no time of any moment at all in any event. It does not follow that because no order was made in the parenting part of the proceeding that there should immediately – and as a matter of direct consequence be no order in the property matter as the respondent submits.

15. The respondent’s written submissions go on to repeat criticisms made as to the Court’s findings of the formulation of the pool, and they observe at paragraphs 20 to 22:

    20. Until this amendment is determined by his Honour as per the slip rule, any applications as to costs should be delayed or dismissed on these grounds. 

    21. The first respondent is not seeking an order in relation to costs. 

    22. It is additionally noted that the first respondent filed a notice of appeal on 17 January 2020 and such should be determined prior to any applications for costs. 

16. That foreshadowed adjournment was not pressed when the matter came on before me today, and indeed, it seems to me that I am obliged to determine the costs application on the matter as it stands.  Should there be alteration following appellate intervention, then doubtless that will be addressed in that process.

17. Turning to the Calderbank offer, the first matter to be considered is whether the offer was sufficiently clearly expressed to be capable of appropriate analysis.  The offer was to accept $135,000 plus the car and the 133,000 already received, out of a total of $2,796,083.  It was put as a 90.1/9.9 split of all the real assets with both parties to retain their superannuation, which is what I ultimately determined in respect to superannuation in any event.  The applicant attained $150,000 and not $135,000, or an 88 to 12 split.  In my view, the offer was sufficiently clear and, in my view, the applicant has beaten it.

18. The next matter to consider is the time available for consideration by the respondent.  The applicant gave 14 days, which, in the circumstances, in my opinion, was clearly sufficient.  The third matter, however, is whether the respondent was imprudent in not taking it.  This is a matter sometimes overlooked in submissions about Calderbank offers.  One has, as it were, to look at the offer as it would have reasonably appeared to the respondent at the time at which it was made. 

19. At that time, the respondent’s case, which including the parenting issue in respect of which he was successful, could not have been said to be hopeless.  Indeed, my ultimate findings came somewhere between the parties’ competing positions as to the critical issue of the extent and duration of the de facto relationship.  The respondent’s position, as he would have then assessed it, would have been that his case was strong.  In my view, he was entitled to take his chances as he did, and in doing so did not act unreasonably.  This, in my view, is a very pertinent and significant consideration in assessing the force of the Calderbank letter. 

20. While it is true, and I accept that these are matters in the applicant’s favour, that the offer was clearly enough expressed, was open for a reasonable period of time, and was, albeit by a narrow margin, exceeded, in all the circumstances, and including, as I say, the reasonableness of or prudence of the respondent’s course in not responding to and by implication rejecting the order lead to a conclusion that there should be no order as to costs. 

21. I should say finally that although the failure of the respondent to accede to the application for the orders in relation to the car was manifestly unreasonable, it is not possible to see that it has really given rise to any appreciable or significant discrete cost that it is appropriate there be a costs order in that regard either.  Today’s hearing was necessary in any event. 

22. Accordingly, the only decision I make is that there be no orders as to costs, save that, of course, there will be orders in respect of Motor Vehicle F as sought by the applicant.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 11 March 2020