Hatch & Madsen (No 2)
[2023] FedCFamC1A 82
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hatch & Madsen (No 2) [2023] FedCFamC1A 82
Appeal from: Hatch & Madsen [2022] FedCFamC2F 1418 Appeal number(s): NAA 262 of 2022 File number(s): SYC 2278 of 2020 Judgment of: TREE J Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the wife was successful in her appeal from final property settlement orders – Where the Court re-exercised the discretion and sought submissions on costs – Where the husband’s legal personal representative (“the husband”) sought costs from the wife on the basis of an offer of settlement before the appeal hearing – Where the wife did no better on the appeal and re-exercise had she accepted the offer – Costs order made in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 90SF, 117 Cases cited: Hatch & Madsen [2023] FedCFamC1A 52 Number of paragraphs: 8 Date of last submission/s: 23 May 2023 Date of hearing: Determined on the papers Place: In Chambers Counsel for the Appellant: Ms Vohra SC Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr Wilson Counsel for the Respondent: Parker Law ORDERS
NAA 262 of 2022
SYC 2278 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HATCH
Appellant
AND: MS MADSEN AS LEGAL PERSONAL REPRESENTATIVE OF MR MADSEN (DECEASED)
Respondent
order made by:
TREE J
DATE OF ORDER:
26 May 2023
THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs of the appeal in the sum of $15,000 within 28 days.
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 Hatch & Madsen (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
On 4 November 2022, the primary judge made final property settlement orders effecting an 84/16 division of the net pool of the parties’ assets. The practical outcome of that division was that the estate of the late Mr Madsen (“the husband”) was to be paid the sum of $250,000 by Ms Hatch (“the wife”).
On 24 April 2023, I allowed the wife’s appeal from those orders, and re-exercised the primary judge’s discretion, such as to require the wife to pay the husband the sum of $155,000. A timetable for submissions as to any applications for costs was also ordered (see Hatch & Madsen [2023] FedCFamC1A 52).
Subsequently the husband has sought that the wife pay his costs of the appeal in the sum of $17,763.08, on the basis that, by way of Calderbank letter dated 10 March 2023, he offered to settle the appeal on the basis that the wife paid the husband the sum of $155,000, and thus she did no better on the appeal (and re-exercise) than she could have achieved if she had accepted his offer. In doing so he expressly relies upon s 117(2A)(f) of the Family Law Act 1975 (Cth). The wife opposes any costs order, primarily because the appeal was not conceded until during the course of the hearing. However that does not grapple at all with the existence of the 10 March 2023 offer, and its rejection.
The wife also seems to argue that the conceded error was one of law, justifying a costs certificate. The contended error which ultimately saw the appeal allowed was the primary judge taking into account an irrelevant consideration, namely the reasonableness of the husband’s children’s inheritances (at [28]), which in turn led to an adjustment of six per cent, not attributable to contributions or s 90SF(3) matters, but rather in order to achieve a just and equitable outcome.
I am not satisfied that, in all the circumstances, costs certificates are appropriate here. The simple fact is that, as it has transpired, the husband’s 10 March 2023 offer ought to have been accepted by the wife. If it had, the husband’s costs would thereafter not have been incurred. That is not the primary judge’s error.
In my view, the existence of the offer militates in favour of a costs order here.
As to the quantum of any order, according to his schedule filed 11 April 2023 the husband’s total costs are $17,763.08, and yet plainly some of them predate the 10 March 2023 offer. Unfortunately, because the schedule is not in the proper form, it is not possible to calculate the husband’s post 10 March 2023 costs, noting that the Notice of Appeal was filed 2 December 2022. As to that, the husband says he nonetheless should have his costs prior to the offer. I am not satisfied that this is such a case.
In the circumstances I have little option but to fix the husband’s costs in a nominated sum, as plainly assessment for such a modest claim is not warranted. The husband’s costs in the sum of $15,000 should be paid by the wife within 28 days.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 26 May 2023
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