Harrell and Nesland (No.2) - [2018] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRELL & NESLAND (No.2)

[2018] FCCA 961

Catchwords:
FAMILY LAW – Costs – where Respondent had made offers to settle which had not been accepted – where Applicant obtained an adjustment of property less in value than offers made – where indemnity costs sought – where Applicant ordered to pay Respondent’s costs as assessed on a party-party basis.

Legislation:

Family Law Act 1975 (Cth), ss.117(2), 117(2A)

Federal Circuit Court Rules 2001 (Cth), r.21.02

Cases cited:

In the Marriage of Murray (1990) FLC 92–173

Robinson v Higginbotham (1991) FLC 92–209
Lenova v Lenova (Costs) [2011] FamCAFC 141
Marello v Marello (Costs) [2013] FamCA 868

Applicant:

MS HARRELL

Respondent:

MR NESLAND

File Number:

BRC 6489 of 2012

Judgment of:

Judge Egan

Hearing date:

18 April 2018

Date of Last Submission:

18 April 2018

Delivered at:

Brisbane

Delivered on:

19 April 2018

REPRESENTATION

Solicitors for the Applicant:

Matthew Love Family Lawyers

Solicitors for the Respondent:

Hirst & Co Family Solicitors

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

That the Applicant pay the Respondent’s costs of and incidental to the proceedings – excluding the costs of appeal – on and from 27 August 2014 until 10 January 2018, to be assessed on a party-party basis.
That the Applicant pay the Respondent’s costs of and incidental to the Respondent’s application in a case filed on 13 February 2018, including the costs of appearance on 18 April 2018, such costs to be assessed on a party-party basis.
That the Applicant’s response to an application in a case filed on 17 April 2018 be dismissed, and there be no order as to costs in respect thereof.

AND IT IS ORDERED UNTIL FURTHER ORDER:

That paragraph 2(a) of the order of His Honour Judge Baumann (as he then was) be stayed pending the making of further submissions as to whether or not the Property A property should be the subject of a charge, or some other form of security, for the purpose of the payment to the Respondent of the amount of party-party costs assessed as payable to him pursuant to these orders.
That the matter be adjourned to chambers.
That each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

AND IT IS ORDERED BY THE COURT:

That the reasons for judgment of the Court handed down on 19 April 2018 be varied, pursuant to the provisions of Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001, by the inclusion in such reasons, as a new paragraph 17 thereof, of the following:
(a)“As to the Applicant’s financial circumstances deposed to in her affidavit filed on 17 April 2018, I am mindful of the fact that any adverse costs order made against her will negatively impact upon her net wealth. I note also that she has deposed that her solicitors have lodged a caveat over the Property A property as security for the payment of their fees in the amount of some $150,000.00…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harrell and Nesland (No.2)

Details

AGLC: Harrell and Nesland (No.2) [2018] FCCA 961
Case: [2018] FCCA 961
Decision Date: 19 April 2018

CaseChat Overview and Summary

In *Harrell and Nesland (No.2)*, Judge Egan of the Federal Circuit Court of Australia was required to make orders concerning costs and the enforcement of those costs following earlier proceedings between the Applicant and the Respondent. The dispute centred on the payment of legal costs incurred by the Respondent, and the potential impact of such costs on the Applicant's financial position, particularly in relation to a property known as Property A.

The court was tasked with determining the quantum and incidence of costs payable by the Applicant to the Respondent, and whether any security should be placed over Property A to satisfy these costs. Additionally, the court considered the Applicant's financial circumstances and her submissions regarding the potential sale of Property A to meet her own legal fees, in contrast to her opposition to a costs order that might lead to a similar outcome.

Judge Egan reasoned that the Applicant's conduct in exposing Property A to sale for her own legal fees, while simultaneously arguing against a costs order that might necessitate its sale, was an illegitimate and contradictory stance. Applying the principle that a party cannot approbate and reprobate, the court found it inequitable to allow the Applicant to adopt such a position as a matter of public policy. The court therefore made orders for the Applicant to pay the Respondent's costs on a party-party basis for specific periods and applications, and stayed a prior order concerning Property A pending further submissions on whether it should be subject to a charge to secure the costs payable to the Respondent. The court also varied its earlier reasons for judgment to include these considerations.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

That the Applicant pay the Respondent’s costs of and incidental to the proceedings – excluding the costs of appeal – on and from 27 August 2014 until 10 January 2018, to be assessed on a party-party basis.

That the Applicant pay the Respondent’s costs of and incidental to the Respondent’s application in a case filed on 13 February 2018, including the costs of appearance on 18 April 2018, such costs to be assessed on a party-party basis.

That the Applicant’s response to an application in a case filed on 17 April 2018 be dismissed, and there be no order as to costs in respect thereof.

AND IT IS ORDERED UNTIL FURTHER ORDER:

That paragraph 2(a) of the order of His Honour Judge Baumann (as he then was) be stayed pending the making of further submissions as to whether or not the Property A property should be the subject of a charge, or some other form of security, for the purpose of the payment to the Respondent of the amount of party-party costs assessed as payable to him pursuant to these orders.

That the matter be adjourned to chambers.

That each party have liberty to apply on the giving of three (3) days’ notice, each to the other.

AND IT IS ORDERED BY THE COURT:

That the reasons for judgment of the Court handed down on 19 April 2018 be varied, pursuant to the provisions of Rule 16.05(2)(h) of the Federal Circuit Court Rules 2001, by the inclusion in such reasons, as a new paragraph 17 thereof, of the following:

(a) “As to the Applicant’s financial circumstances deposed to in her affidavit filed on 17 April 2018, I am mindful of the fact that any adverse costs order made against her will negatively impact upon her net wealth. I note also that she has deposed that her solicitors have lodged a caveat over the Property A property as security for the payment of their fees in the amount of some $150,000.00 owed to them by the Applicant. In those circumstances, it is probable that the Property A property will have to be sold in any event to pay the solicitor’s fees from the proceeds of sale. It is, in my view, an illegitimate stance for the Applicant to adopt whereby on the one hand she has unilaterally exposed her home to being sold so as to meet the payment of her own legal fees, whereas on the other hand she impliedly submits that a costs order should not be made against her because that might give rise to the same result. She ought not be allowed, as a matter of public policy, to both approbate and reprobate.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.