Huey and Huey (No 2)

[2020] FamCA 721

FAMILY COURT OF AUSTRALIA

HUEY & HUEY (NO. 2) [2020] FamCA 721

FAMILY LAW – COSTS – husband ordered to pay the wife’s costs of the application which was heard on 13 May 2020 only, on a party and party basis, as assessed or agreed

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Huey

RESPONDENT: Mr Huey

FILE NUMBER: SYC 5581 of 2018

DATE DELIVERED: 1 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 1 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Russell Kennedy Aitken Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Norwest Family Law

Orders

IT IS ORDERED

1. That the husband pay the wife’s costs of the application heard and determined on 13 May 2020 on a party and party basis as assessed or agreed.

2. That the costs be paid from, and be charged against, any funds to be received by the husband from the sale of the property at B Street, Suburb C.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huey & Huey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5581 of 2018

Ms Huey

Applicant

And

Mr Huey

Respondent

REASONS FOR JUDGMENT

1. On 13 May 2020 I delivered reasons and made orders dismissing the application of Mr Huey (“the husband”) to set aside a Binding Financial Agreement (“BFA”) between him and Ms Huey (“the wife”).

2. The wife now seeks an order that the husband pay her costs of the proceedings. Her application is couched in a number of alternatives:

   ·    On a solicitor/client basis assessed at $83,885.23 or

   ·    On a solicitor/client basis as assessed or agreed or

   ·    On an indemnity basis in the sum of $67,108.18 or

   ·    On an indemnity basis as assessed or agreed , or

   ·    On a party/party basis in the sum of $42,781.47 or

   ·    On a party/party basis as assessed or agreed.

3. In the event that the husband is ordered to pay costs, the wife seeks an order that those costs be paid from funds due to the husband as a result of the sale of a jointly owned property at Suburb C which is to settle in May 2022. At the present time, the solicitors acting on the conveyance hold $54,126.24 in trust for the husband and the wife. It is anticipated that in August 2020, a further sum of $24,152.68 will be received by the solicitors. On settlement, it is anticipated that the husband and the wife will receive $1,895,012.50 from which $600,000 will be paid to the husband and the balance to the wife.

4. The application is opposed by the husband.

5. Each party has filed an affidavit and written submissions in relation to the issue of costs and agreed that the matter be determined in Chambers without further appearances.

6. The determination is governed by the application of s117(2A) of the Family  Law  Act 1975 (Cth), (“the Act”) which is set out below:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

7. The wife is currently employed and earning $80,000 per annum. She has incurred legal fees of $83,885.23 in relation to the whole of the proceedings, of which this application is but one part. Her only significant asset is her share of the proceeds of sale of the Suburb C property.

8. The husband deposed that he is unemployed and living with the assistance of friends. His only significant asset is his share in the proceeds of sale of the Suburb C property.

9. On 29 January 2020, a registrar directed that the issue of the validity of the BFA be listed as a threshold matter. Each party relied on one affidavit. Each filed a comprehensive case outline document and each was represented by counsel. The matter proceeded by way of submissions without cross-examination and was completed within the day.

10. Neither party conducted themselves in respect of this application in a manner which exacerbated or prolonged the proceedings.

11. The husband was wholly unsuccessful. His application was dismissed.

12. The wife relies on two offers.

13. On 16 March 2020 the wife offered to resolve the matter on the basis that the BFA be set aside and that the proceeds of sale of the Suburb C property be divided as to 35 per cent to the husband and 65 per cent to the wife. On behalf of the wife it is submitted that this offer would have resulted in the husband receiving about $100,000 more than he will receive pursuant to the BFA.

14. The husband did not respond to the offer.

15. Counsel for the husband, in submissions, disputes that assertion that the husband would have received more pursuant to the offer but I am prepared to infer that he would have received about $42,000 more than he will receive on the sale pursuant to the BFA.

16. The wife’s second offer was made the day before the hearing and was simply that the proceedings be withdrawn and each party pay his or her own costs.

17. The husband did not respond to this offer.

18. Having regard to all of those matters it is appropriate that the husband pay the wife’s costs of the application which was determined on 13 May 2020.

19. I do not propose to make an order for indemnity costs or for solicitor and client costs.

20. This application was a small part of a wider dispute which appears to have been somewhat ill conceived by both parties.

21. The wife’s Initiating Application sought final orders in the following terms:

    The Applicant Wife seeks leave to file an amended Initiating Application setting out her final Orders upon the Husband providing full details of his financial position.

22. The wife answered “No” to the question “Have the parties entered into a financial agreement or a Part VIIIAB Financial Agreement under the Family Law Act 1975…”

23. The husband in his response sought a suite of orders relating to the sale of various property and the distribution of proceeds and in relation to the joint self-managed superannuation fund. The Court had no power to make those orders because, as was later found, the parties had entered into a BFA in May 2007.

24. The husband will be ordered to pay the wife’s costs of the application which was heard on 13 May 2020 only, on a party and party basis, as assessed or agreed.

25. Those costs will be paid from any funds due to the husband from the sale of the Suburb C property.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1  September  2020.

Associate: 

Date:  01/09/2020