Hullet & Benton - [2022] FedCFamC1F 143

Federal Circuit and Family Court of Australia
(DIVISION 1)
Hullet & Benton [2022] FedCFamC1F 143

File number(s): MLC 13387 of 2020

Judgment of: MACMILLAN J

Date of judgment: 18 March 2022

Catchwords: COSTS – Where the husband’s legal personal representative seeks an order that the wife pay the costs of his Application in a Case for a review of the orders made by a Registrar dismissing an Application for Consent Orders upon the death of the husband and of the wife’s application for a stay of orders made discharging the decision made by the Registrar – Where the wife properly advised should have known that she had no chance of success – Where a stay was granted and the appeal was dismissed – Where orders made for the wife to pay the husband’s Executor’s costs of his Application in a Case on an indemnity basis fixed in the sum of $27,276.30 - Where orders made for the wife to pay the husband’s Executor’s costs of and incidental to the wife’s stay application on a party and party basis fixed in the sum of $4,343.73.

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

Family Law Rules 2004 (Cth) (Repealed) r 10.11

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.02, 12.08, 12.13, 12.17, sch 3

Cases cited:
Bolt v Williams (1996) FLC 92-662

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Gallieni & Gallieni [2013] FamCA 314

In the Marriage of I & I(No 2) (1995) FLC 92-625

Kohan & Kohan [1993] FLC 92-340

Munday v Bowman [1997] FLC 92-784

In the Marriage of Strelys (1987) 12 Fam LR 437

Yunghanns & Yunghanns [2000] FLC 93-029

Division: Division 1 First Instance

Number of paragraphs: 42

Date of hearing: 28 February 2022

Date of last submission/s: 28 February 2022

Place: Melbourne

Solicitor for the Applicant: Robinson Gill

Solicitor for the Respondent: Kenna Teasdale
ORDERS

MLC 13387 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HULLET

Applicant

AND:
MR BENTON AS LEGAL PERSONAL REPRESENTATIVE FOR MR D BENTON (DECEASED)

Respondent

order made by:

MACMILLAN J

DATE OF ORDER:

18 MARCH 2022

THE COURT ORDERS THAT:
1.Ms Hullet (“the wife”) pay Mr Benton’s (“the husband’s executor”) costs of his Application in a Case filed 8 February 2021 fixed in the sum of $27,276.30.
2.The wife pay the husband’s executor’s costs of an incidental to the wife’s stay application fixed in the sum of $4,343.73.
3.The husband’s executor’s applications for costs be otherwise dismissed and removed from the list of cases awaiting hearing.

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…

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.

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Details

Case: [2022] FedCFamC1F 143
Decision Date

CaseChat Overview and Summary

In the Family Court, the parties contested an application for review of property settlement orders. The wife, represented by her counsel, opposed the application brought by the husband's executor, who sought to review the property settlement following the husband's death. The legal issues before the court included whether the husband's executor had made any written offers to settle the dispute, the relevance of the husband's concealed illness to the application for review, and whether the court should consider the wife's opposition to the application despite the clear legal principles and authority against her position.

The court found that the wife's opposition was not only unsuccessful but also contrary to established legal principles. Although the letter from the husband's executor's solicitor did not reference the case of Bolt v Williams, both parties had relied on the Full Court's decision in Strelys, which was authoritative in the matter. The wife's submissions contradicted the principles enunciated in Strelys, leading to her unsuccessful outcome. The court held that the circumstances justified departing from the general rule that each party should bear their own costs, considering the wife's opposition against clear legal requirements and principles. The court further noted that the wife's claim of being tricked into consenting to the orders did not affect the court's determination of the application for review or the justification for an order for costs.

The court ordered that the wife pay the husband's executor's costs on an indemnity basis for the proceeding. This order was justified based on the wife's wholly unsuccessful position and her opposition against the clear legal framework. The court considered various factors, including the importance and complexity of the issues, the reasonableness of each party's behaviour, and the time spent on the proceedings. The wife's opposition, despite the clear legal stance and the husband's executor's proposals, warranted an indemnity costs order.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally it was the wife’s case that the letter from the solicitor for the husband’s executor dated 17 March 2021 having not referred to the decision of Wilczek J in Bolt v Williams (1996) FLC 92-662 (“Bolt’s case”), there having been no mention of the decision during the hearing and it being a “stand alone” decision of a single judge and not “conclusively determinative of the matter before the Court” should weigh against an order for costs. Although it is correct that there was no reference to Bolt’s case, either in the letter or in submissions during the hearing and it is the decision of a single judge, both parties did rely upon the decision of the Full Court in Strelys which was referred to both by Wilczek J’s in Bolt’s case and the reasons I delivered on 29 March 2021. The wife’s case failed not because no reference was made to Bolt’s case or because it was a “stand alone” decision of a single judge but because as referred to in my reasons the submissions made by the wife contradicted the principles enunciated in Strelys. Conclusion I am satisfied that there are circumstances in this case which justify the Court departing from the general rule that each party should bear their own costs. Not only was the wife wholly unsuccessful but as submitted by counsel for the husband’s executor she opposed his application in the face of the clear requirements of the Rules, the principles in Strelys and the letter from the husband’s executors solicitor. Quantum of Costs The methods for calculating costs when the Court is satisfied that there are circumstances which justify an order are set out in r 12.17 of the Rules. The Court may order that a party is entitled to a specific amount, as assessed on a particular basis such as party and party, solicitor and client or indemnity basis, in accordance with the method specified in the order, or for part of the proceeding, or part of an amount assessed in accordance with Schedule 3 of the Rules. Rule 12.17(3) sets out various matters the Court may consider when calculating the costs as follows:(3) In making an order under subrule (1), the court may consider the following:(a) the importance, complexity or difficulty of the issues;(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);(c) the rates ordinarily payable to lawyers in comparable proceedings;(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;(e)the time properly spent on the proceeding, or in complying with pre‑action procedures;(f)whether expenses (paid or payable) are fair, reasonable and proportionate. The general rule when the Court makes an order for costs is that costs will be payable on a party and party basis. The Court does however have a discretion to order costs on other terms, including indemnity costs. In Kohan & Kohan [1993] FLC 92-340 (at page 79,614) the Full Court of the Family Court of Australia (“Full Court”) makes it clear that the Court "…should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind".

Ratio Decidendi

Legal Principle Established

It was the wife’s case that there had not been any offers in writing for the purposes of s117(2A)(f) of the Act whereas the husband’s executor relied upon the letter sent by his solicitor to the wife’s solicitor on 17 March 2021. I am satisfied that, whether or not that letter is an offer in writing for the purposes of the Rules, the proposals made by the husband’s executor, if adopted, would have avoided the necessity for a hearing which is a matter I can take into account pursuant to s 117(2A)(g) of the Act. Other considerations It is the wife’s case that she was tricked into consenting to orders that she would not have consented to had she known that the husband had been diagnosed with an illness. Counsel for the wife submitted that in these circumstances it was not unreasonable for the wife to oppose the Application for Review and that this was a matter that the Court should weigh up in its determination of whether or not an order for costs is justified. In my view this submission is misconceived and ignores the fact that the wife had withdrawn her consent and that the husband’s illness and death were matters that would be taken into account by the Court when determining what, if any, property orders it should make. The fact that the husband concealed his illness was not relevant to the determination of the Application for Review and is in my view similarly not relevant to the question of whether an order for costs is justified. Finally it was the wife’s case that the letter from the solicitor for the husband’s executor dated 17 March 2021 having not referred to the decision of Wilczek J in Bolt v Williams (1996) FLC 92-662 (“Bolt’s case”), there having been no mention of the decision during the hearing and it being a “stand alone” decision of a single judge and not “conclusively determinative of the matter before the Court” should weigh against an order for costs. Although it is correct that there was no reference to Bolt’s case, either in the letter or in submissions during the hearing and it is the decision of a single judge, both parties did rely upon the decision of the Full Court in Strelys which was referred to both by Wilczek J’s in Bolt’s case and the reasons I delivered on 29 March 2021. The wife’s case failed not because no reference was made to Bolt’s case or because it was a “stand alone” decision of a single judge but because as referred to in my reasons the submissions made by the wife contradicted the principles enunciated in Strelys. Conclusion I am satisfied that there are circumstances in this case which justify the Court departing from the general rule that each party should bear their own costs. Not only was the wife wholly unsuccessful but as submitted by counsel for the husband’s executor she opposed his application in the face of the clear requirements of the Rules, the principles in Strelys and the letter from the husband’s executors solicitor. Quantum of Costs The methods for calculating costs when the Court is satisfied that there are circumstances which justify an order are set out in r 12.17 of the Rules. The Court may order that a party is entitled to a specific amount, as assessed on a particular basis such as party and party, solicitor and client or indemnity basis, in accordance with the method specified in the order, or for part of the proceeding, or part of an amount assessed in accordance with Schedule 3 of the Rules. Rule 12.17(3) sets out various matters the Court may consider when calculating the costs as follows:(3) In making an order under subrule (1), the court may consider the following:(a) the importance, complexity or difficulty of the issues;(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);(c) the rates ordinarily payable to lawyers in comparable proceedings;(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;(e)the time properly spent on the proceeding, or in complying with pre‑action procedures;(f)whether expenses (paid or payable) are fair, reasonable and proportionate.

File number(s):	MLC 13387 of 2020
Judgment of:	MACMILLAN J
Date of judgment:	18 March 2022
Catchwords:	COSTS – Where the husband’s legal personal representative seeks an order that the wife pay the costs of his Application in a Case for a review of the orders made by a Registrar dismissing an Application for Consent Orders upon the death of the husband and of the wife’s application for a stay of orders made discharging the decision made by the Registrar – Where the wife properly advised should have known that she had no chance of success – Where a stay was granted and the appeal was dismissed – Where orders made for the wife to pay the husband’s Executor’s costs of his Application in a Case on an indemnity basis fixed in the sum of $27,276.30 - Where orders made for the wife to pay the husband’s Executor’s costs of and incidental to the wife’s stay application on a party and party basis fixed in the sum of $4,343.73.
Legislation:	Family Law Act 1975 (Cth) ss 117, 117(2A) Family Law Rules 2004 (Cth) (Repealed) r 10.11 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.02, 12.08, 12.13, 12.17, sch 3
Cases cited:	Bolt v Williams (1996) FLC 92-662 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Gallieni & Gallieni [2013] FamCA 314 In the Marriage of I & I(No 2) (1995) FLC 92-625 Kohan & Kohan [1993] FLC 92-340 Munday v Bowman [1997] FLC 92-784 In the Marriage of Strelys (1987) 12 Fam LR 437 Yunghanns & Yunghanns [2000] FLC 93-029
Division:	Division 1 First Instance
Number of paragraphs:	42
Date of hearing:	28 February 2022
Date of last submission/s:	28 February 2022
Place:	Melbourne
Solicitor for the Applicant:	Robinson Gill
Solicitor for the Respondent:	Kenna Teasdale

MLC 13387 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HULLET Applicant
AND:	MR BENTON AS LEGAL PERSONAL REPRESENTATIVE FOR MR D BENTON (DECEASED) Respondent

order made by:	MACMILLAN J
DATE OF ORDER:	18 MARCH 2022