Hopkinson and Hopkinson & Anor (No 2)

[2010] FamCAFC 246

FAMILY COURT OF AUSTRALIA

HOPKINSON & HOPKINSON AND ANOR (NO. 2) [2010] FamCAFC 246

FAMILY LAW - APPEAL – Application for an extension of time to file for the costs of a discontinued appeal – Where there was a reasonable explanation for the delay – Application allowed

FAMILY LAW - APPEAL – Application for costs of a discontinued appeal – Where costs were unnecessarily expended responding to the notice of appeal – Where the funds should have been distributed to pay creditors – Where the trustee was not consulted about the filing of an appeal – Where the applicant failed to demonstrate circumstances justifying an order for costs – Where there was no evidence of the parties financial circumstances – No information on the status of the husband’s bankruptcy – Where the husband had made an application pursuant to s 79A of the Act, which was summarily dismissed – Where the notice of discontinuance was filed without delay – There is to be no order for costs – Application dismissed

Family Law Act 1975 (Cth) s 79A, s 117
Family Law Rules 2004

FIRST APPELLANT: Mrs Hopkinson

SECOND APPELLANT: Trustee for the bankrupt estate of Mr Hopkinson

RESPONDENT: Mr Hopkinson

FILE NUMBER: BRC 4362 of 2007

APPEAL NUMBER: NA 60 of 2009

DATE DELIVERED: 13 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 13 December 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 July 2009

LOWER COURT MNC: [2009] FMCAfam 875

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Nathan Lawyers

COUNSEL FOR THE 2ND APPLICANT: Ms Armitage

SOLICITOR FOR THE 2ND APPLICANT: Gregg Lawyers

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE 2ND APPLICANT: In person

Orders

1. That the trustee be granted leave to file an application for costs.

2. That there be no order for costs.

3. That the application in an appeal filed by the wife on 23 June 2010 be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 60 of 2009
File Number: BRC 4362 of 2007

Mrs Hopkinson

First Applicant

And

Trustee for the bankrupt estate of Mr Hopkinson

Second Applicant

And

Mr Hopkinson

Respondent

REASONS FOR JUDGMENT

Introduction

1. An application was made on behalf of the trustee in bankruptcy that the husband pay the trustee’s costs of and incidental to an appeal filed by the husband together with any costs relating to the notice of discontinuance of the appeal filed on 12 April 2010.

2. It was necessary for the trustee to seek leave to bring the application out of time. The application was filed two days late, the excuse for the delay being the late service by the husband of the notice of discontinuance. Leave to file the applications was granted.

3. The application for costs is based on an assertion that these moneys should be paid to the trustee in bankruptcy because the appeal was discontinued and therefore costs have been occurred. In addition it is said, that those costs have diminished the amount of money that should have been available to the creditors, which otherwise might have been distributed. I am also told that the trustee, unsurprising in this case was not consulted about the appeal being filed.

4. Mr Page of senior counsel, who appears for the husband, correctly referred to the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”) and in effect the duty in this case, to demonstrate what parts of those provisions would justify an order for costs. It must always be remembered that costs do not follow the event in this court.

5. In addition, Mr Page referred to the need usually for there to be some evidence before the court about the circumstances of the parties, including their financial circumstances. That would be particularly so in this case, as the husband is currently bankrupt. Unfortunately no material has been placed before me as to when the husband’s bankruptcy is likely to cease or really anything about the state of the bankruptcy.

6. The history surrounding this appeal being filed is of some importance. The husband, who was more than discontented with the actions of the trustee in bankruptcy, filed an application pursuant s 79A of the Act on 20 February 2009.

7. There were numerous hearings before the Federal Magistrate which included the husband being reinstated as a party to the proceedings and being noted as first applicant, and Mr Pearce as trustee, being noted as second applicant.

8. Orders were made on 5 November 2009 and 4 February 2010 for directions. Ultimately there was a hearing in this matter and for a while it seemed that the husband had some degree of success, being reinstated as a party. Ultimately his application pursuant to s 79A of the Act was heard on 8 December 2010 and was summarily dismissed.

9. It was submitted by Mr Page that the trustee in bankruptcy might have acted earlier to seek that the application pursuant to s 79A the Act be dismissed, and consequently that the costs may not have been incurred. Leaving that to one side it is quite clear that the appeal filed related to issues raised before the Federal Magistrate and that the notice of discontinuance was filed on 12 April 2010, at a time when the husband was pursuing his application pursuant to s 79A of the Act.

10. I do not intend to make an order for costs in this case. First, taking into the account the history of the matter, as I have just briefly recounted. Secondly, because I have no understanding at all, of the husband’s current financial position in relation to bankruptcy and no matters relevant to a costs order have been submitted. This being a case where there seems to be quite a proper reason why the notice of appeal was filed and with the notice of discontinuance being filed without delay, there should be no order as to costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 13 December 2010.

Associate: 

Date:  14 December 2010