FAMILY COURT OF AUSTRALIA
| HAND & BODILLY | [2013] FamCAFC 98 |
| FAMILY LAW – APPEAL - LUMP SUM MAINTENANCE – where the wife had a debilitating illness – where an order for lump sum maintenance was made to allow her to modify her home – where the husband challenged the trial judge’s use of a builder’s quotation and a small contingency allowed – where adequate reasons were given and the order was within the trial judge’s discretion – appeal dismissed. FAMILY LAW – APPEAL - COSTS – where the trial judge assessed the wife’s costs on a solicitor and own client basis relying upon a costs notice – where the husband asserted that his Honour had ordered “indemnity costs” – where the husband asserted that it was impermissible for the trial judge to rely upon the document in the way he did – where the husband asserted he had been denied procedural fairness – where the husband asserted the trial judge had not given proper weight to evidence and had not given adequate reasons – where although the trial judge had ordered a level of indemnity greater than party/party costs, he had not ordered “indemnity costs” - where no ground of appeal was made out – appeal dismissed. |
| Bouras v Grandelis (2005) 65 NSWLR 214 |
| APPELLANT: | Mr Hand |
| RESPONDENT: | Ms Bodilly |
| FILE NUMBER: | MLC | 10737 | of | 2009 |
| APPEAL NUMBER: | EA | 119 | of | 2012 |
| DATE DELIVERED: | 24 June 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Ryan and Watts JJ |
| HEARING DATE: | 14 May 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 734 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ackman QC with Ms Hannan |
| SOLICITOR FOR THE APPELLANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr St John SC with Ms Rivers |
| SOLICITOR FOR THE RESPONDENT: | Tolhurst Druce & Emmerson |
Orders
The appeal be dismissed.
The husband pay the wife’s costs on a party/party basis as agreed or assessed.
It is certified that it was reasonable for the wife to engage senior counsel and junior counsel in the preparation and hearing of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hand & Bodilly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 119 of 2012
File Number: MLC 10737 of 2009
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Details
- AGLC
- HAND & BODILLY [2013] FamCAFC 98
- Case
- [2013] FamCAFC 98
- Decision Date
CaseChat Overview and Summary
In the matter of Hand & Bodilly, the appellant husband challenged a decision made by the Family Court regarding lump sum maintenance and costs. The wife, suffering from a debilitating illness, sought a lump sum maintenance order to modify her home, which the trial judge granted based on a builder’s quotation. The husband argued that the trial judge improperly relied on the quotation, which had been orally revised but not confirmed in writing, and that the trial judge failed to adequately consider the absence of competitive quotes and the wife's inability to be cross-examined. However, the court found that the trial judge's decision was within his discretion, and that the husband had not demonstrated any judicial error.
Regarding costs, the husband argued that the trial judge improperly relied on the wife’s costs notices, which he claimed were not subject to scrutiny and denied him procedural fairness. The husband also asserted that the trial judge did not give proper weight to evidence and failed to provide adequate reasons. The court examined the circumstances under which the trial judge relied on the costs notices and found that there was no judicial error. The husband had not challenged the wife’s evidence about the costs during submissions, and therefore could not successfully argue against the trial judge’s reliance on that evidence.
The appeal was dismissed, and the husband was ordered to pay the wife’s costs on a party/party basis as agreed or assessed. The court also certified that it was reasonable for the wife to engage senior and junior counsel in the preparation and hearing of the appeal.
Regarding costs, the husband argued that the trial judge improperly relied on the wife’s costs notices, which he claimed were not subject to scrutiny and denied him procedural fairness. The husband also asserted that the trial judge did not give proper weight to evidence and failed to provide adequate reasons. The court examined the circumstances under which the trial judge relied on the costs notices and found that there was no judicial error. The husband had not challenged the wife’s evidence about the costs during submissions, and therefore could not successfully argue against the trial judge’s reliance on that evidence.
The appeal was dismissed, and the husband was ordered to pay the wife’s costs on a party/party basis as agreed or assessed. The court also certified that it was reasonable for the wife to engage senior and junior counsel in the preparation and hearing of the appeal.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The husband pay the wife’s costs on a party/party basis as agreed or assessed.
3.
It is certified that it was reasonable for the wife to engage senior counsel and junior counsel in the preparation and hearing of the appeal.
Background
Background to the litigation
The Learned Trial Judge failed to give any or any sufficient weight in all the circumstances to the facts that: (a)the wife was unable to be cross-examined about the reasonableness and/or requirement of her prospective proposed purchases; (b)the wife failed to provide any alternative quotes; (c)that the wife’s experts and occupational therapists were unable and/or unqualified to assist with the assessment of the cost of the wife’s prospective proposed purchase needs because of the absence of: (i) a formal quote from the builder; (ii) competitive quotes from other builders; (d)that the wife failed to provide any reason for her failure to provide evidence of: (i) a formal quote from the builder; (ii) competitive quotes from other sources [errors in original] We have set out above the aide-mémoire which his Honour adopted at [182] of his reasons. Part of the aide-mémoire arises from a quotation dated 13 February 2012 from H Constructions Pty Ltd which was annexure A to the wife’s affidavit sworn 9 July 2012. The original quotation was for $57,700 plus GST. The itemised amounts actually totalled $62,670 with the difference being caused by a slight miscalculation of GST. The original quotation allocated a provisional sum of $9,000 for concreting to enable the wife to use her wheelchair outside. Ms O said (in her report dated 16 April 2012), that she had a subsequent conversation with the builder. The full text of her evidence is set out in ground 4(b). With that verbal variation, the quotation was revised by the builder to be $68,670. It is common ground that the builder did not confirm that verbal estimation in writing. The husband complains that no explanation was given on behalf of the wife as to why no new tender document was obtained. The husband notes that the wife could not be cross examined about it. However, senior counsel for the wife correctly makes the point that Ms O was not asked any questions about the part of her report of 16 April 2012 that is set out in ground 4(b). The husband next complains that both Ms O and [Ms R] (the occupational therapists retained by each party) agreed that further quotes should be obtained to ensure competitive pricing, yet no other quotes were obtained for or on behalf of the wife by the date of the hearing. That assertion relies upon paragraph 8.1 of the joint statement of the two occupational therapists quoted above which states, “however, Ms [O] continues to await written confirmation of the verbal quote. Both experts agree that further quotes should be obtained to ensure competitive pricing”. At the end of the hearing the only evidence that his Honour had in respect of the cost of the concreting was the tender document from H Constructions Pty Ltd and the oral evidence of Ms O of her subsequent conversation with the builder. Not only did senior counsel for the husband not challenge Ms O in relation to her evidence about her conversation with the builder, he did not during submissions to his Honour, assert that his Honour should not rely upon the report as a whole or that he should not rely on that part of the report relating to the concreting. Having failed to do so before his Honour, the challenge cannot succeed here. (Metwally (No 2) v University of Wollongong (1985) 60 ALR 68).
Evidence
Evidence Before The Court
The Learned Trial Judge failed to give any or any sufficient weight to the evidence: (a)that the quote for concreting had been orally revised from $9,000 to $15,000 and that Ms [O] had not received written confirmation of the verbal quote (page 7 of the affidavit of Ms [O] 16 April 2012); (b)from Ms [O] (page 7, Ms [O’s] report 16 April 2012) … wherein she states: “Further discussion with Mr [K] who visited the site with a concreter after providing this initial quote indicated that the original $9,000 estimated for concreting the side path was insufficient. He noted that an engineer’s report would be required to address the effect of additional concreting on a nearby retaining wall and that more concrete than initially estimated would be required. He verbally advised that $15,000 would be a nearer estimation of the cost required for this part of the job. This would increase the estimated building cost to $63,700 plus GST. A formal updated quote from Mr [K] including this additional cost is still awaited at the time of this report”; (c)that no engineer’s report was ever received, and that no formal update of the builder’s “estimate” was ever provided by the builder; (d) that both experts agreed that further quotes should be obtained to ensure competitive pricing, yet no other quotes were obtained by the Applicant by the date of the hearing (see 8.2 Joint Report of Experts dated 27 July 2012); The Learned Trial Judge fell into judicial error in relying upon the said “quotation” which had subsequently been orally varied by way of estimate, but never formally confirmed in writing by way of an updated quotation (as anticipated by Ms [O]). The Learned Trial Judge failed to give any or any sufficient weight in all the circumstances to the facts that: (a)the wife was unable to be cross-examined about the reasonableness and/or requirement of her prospective proposed purchases; (b)the wife failed to provide any alternative quotes; (c)that the wife’s experts and occupational therapists were unable and/or unqualified to assist with the assessment of the cost of the wife’s prospective proposed purchase needs because of the absence of: (i) a formal quote from the builder; (ii) competitive quotes from other builders; (d)that the wife failed to provide any reason for her failure to provide evidence of: (i) a formal quote from the builder; (ii) competitive quotes from other sources [errors in original] We have set out above the aide-mémoire which his Honour adopted at [182] of his reasons. Part of the aide-mémoire arises from a quotation dated 13 February 2012 from H Constructions Pty Ltd which was annexure A to the wife’s affidavit sworn 9 July 2012. The original quotation was for $57,700 plus GST. The itemised amounts actually totalled $62,670 with the difference being caused by a slight miscalculation of GST. The original quotation allocated a provisional sum of $9,000 for concreting to enable the wife to use her wheelchair outside.
Decision
Reasons for decision
The Learned Trial Judge relied solely upon the Wife’s Order 19.04 Family Law Rules in determining the Wife’s costs (see paragraph [189] of the said Judgment); That the Learned Trial Judge fell into judicial error: As already mentioned, the trial judge relied upon the wife’s costs notices dated 2 August 2012 and dated 14 August 2012. Although r 19.04(6) of the Rules provides: It is reasonable to conclude that in the circumstances in which these documents were provided to the Court (and in particular the second of the two costs notices), that the documents were not intended to be aide-mémoires. The context in which the documents were provided to his Honour make it clear that his Honour intended to rely upon those documents, particularly in circumstances where his Honour was being asked to, and in fact did, conclude that the appropriate basis for assessment of costs was a solicitor/client basis. The trial judge also relied upon the husband’s costs notices, when assessing the reasonableness of the costs the wife had incurred. The point being, that the two were comparable, albeit that the husband’s costs were greater than the wife’s. Given that his Honour was entitled to rely upon these documents in the way he did, these grounds are not made out. The Learned Trial Judge denied the Respondent Husband judicial fairness and/or natural justice by relying on a document that was not in evidence or subject to the scrutiny of the Court and/or the Husband. Senior counsel for the husband submitted that the circumstances in which the trial judge came to rely upon the wife’s costs notices denied the husband “judicial” fairness and/or natural justice. In order to explore that contention, it is necessary to examine the way in which his Honour’s approach to how the cost application would be considered evolved during submissions. Initially, his Honour contemplated that consideration of the question of costs might await the final determination of the substantive matter and be dealt with on another day. His Honour’s view about the appropriate time for submissions on costs changed during submissions made by senior counsel for the wife. Senior counsel for the wife told his Honour that there were no “letters of offer” or any other evidence about costs and said the application for costs would turn on known facts (the disparity of financial position and the history of the litigation). Senior counsel for the wife submitted to the trial judge that since the costs sought by the wife were substantial, if awarded, they would impact upon the income that would be available to the wife and be relevant to the consideration of the spousal maintenance application. Significantly, senior counsel for the husband put the following to his Honour (at page 286 of the transcript of proceedings on 8 August 2012):[SENIOR COUNSEL FOR THE HUSBAND]: Your Honour, might I be bold enough to suggest that your Honour, in the course of giving judgment will understand the impact of your Honour’s own orders. That seems a much more appropriate thing to do, with respect, than to try and prejudge your Honour’s own judgment. Your Honour will be aware that if you order x thousand dollars costs, then that’s x thousand dollars costs less the wife has to pay. But it seems to me, with the greatest respect, that the only person who can do this adjustment is your Honour because only your Honour will eventually know what the figure is.HIS HONOUR: Sure. As long as you’re comfortable
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.