Kattan and Chattah (No 2)

[2015] FamCA 950

FAMILY COURT OF AUSTRALIA

KATTAN & CHATTAH (NO 2) [2015] FamCA 950

FAMILY LAW – COSTS – Where the applicant seeks an order that the respondent pay her costs in respect of property proceedings which have concluded – Where the applicant and the Independent Children’s Lawyer seek a costs order in relation to a stay application which was not proceeded on by the respondent – Where the respondent opposes the applications – Consideration of s 117 of the Family Law Act 1975 (Cth) – Where it is just that a costs order be made in favour of the applicant and the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) – s 117

APPLICANT: Mr Kattan

RESPONDENT: Ms Chattah

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

FILE NUMBER: PAC 132 of 2012

DATE DELIVERED: 6 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 6 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glisson

SOLICITOR FOR THE APPLICANT: Benjamin & Kattan Solicitors

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

1. That the Court notes that the father has indicated through his counsel that he will not be filing any appeal.

2. That the Application in a Case filed on 30 June 2015 is dismissed.

3. That the father pay to the mother’s solicitors her costs of the property aspect in the substantive trial as from commencement of the hearing on 17 June 2014 as agreed or as assessed on a party party basis.

4. That the mother’s application for costs in the parenting proceedings is dismissed.

5. That the father pay the costs of the Independent Children’s Lawyer in respect of the stay proceedings in the amount of $1,500 within 42 days.

6. That the father pay to the mother’s solicitors her costs thrown away in the stay proceedings as agreed or as assessed on a party party basis.

7. That by consent the entity who is to undertake the conveyancing on the sale of the former matrimonial home is HH Conveyancing, Suburb DD.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kattan & Chattah (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 132 of 2012

Mr Kattan

Applicant

And

Ms Chattah

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Chattah for an order that Mr Kattan pay her costs in respect of the property hearing between the parties which commenced on 17 June 2014 and which ultimately concluded with submissions on 28 October 2014.  For convenience I shall refer to the parties as “the mother” and “the father”.  The application is opposed by the father.

2. On 23 June 2015 I delivered judgment in substantive property and parenting proceedings and made orders in respect of each of those matters.

3. The property orders made on 23 June 2015 require each of the parties to bring about a sale by way of public auction of the former matrimonial home at F Street, Suburb G.  The orders provide for how the proceeds of sale of the said home are to be paid out.  After paying agent’s commission, advertising costs, costs of sale, including legal costs, and payment of auction expenses and discharging the mortgage on the property, the balance is to be paid out in the proportions 34.337 percent to the father and 65.663 percent to the mother.

4. The application is really on the basis that the mother asserts that she has achieved at trial a more favourable position in respect of property than what she had offered to the father through his solicitors by a letter from her solicitors dated 19 May 2014.  This letter followed an order that was made by one of the registrars, to the effect that each of the parties was to make a written offer to the other.  This offer is as follows, firstly:

   That within 90 days the husband sign all documents and do all that is necessary to cause his interest in the former matrimonial home –

   and there is a typographical error, but it should be “to be transferred to the wife”.

5. Paragraph 2 provides:

   Contemporaneously with that transfer, the wife would pay the husband an amount equal to 40 percent of the net value of the property remaining after mortgage to the National Australia Bank is discharged.

6. And the third paragraph is:

   Each of the parties is declared sole owner of any superannuation, bank account, motor vehicles or other property in his or her respective possession at the time of the orders.

7. And there is an order that the husband retain the whole of his interest in his business known as Kattan Pty Ltd.

8. It is said that that offer is clearly more favourable to the mother than what was ultimately ordered, namely that upon an auction sale the husband would achieve 34.337 percent of the net proceeds of sale, not 40 percent. 

9. It is said, on the other hand, in opposition to any such order that that offer is a long way away from the order that the Court ultimately made, that is, that the wife was contemplating retaining the home upon a payment to the husband of 40 percent of the net value and what was ultimately achieved is that the Court ordered an auction sale.  And it is said that there would need to be mortgagee’s consent, and there was nothing to indicate that that would be the situation.

10. The usual position in relation to costs is as set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), namely, that each party to the proceedings shall bear this own costs. That is subject to a power provided to the Court to make a costs order if it considers it just to do so pursuant to s 117(2) of the Act upon a consideration of the relevant matters in s 117(2A).

11. The first of those matters is the financial circumstances of each of the parties.  I am well aware of their financial circumstances, having looked at them in detail and referred to them in detail in my judgment in the substantive proceedings.  Neither party is in receipt of assistance by Legal Aid.  No particular submission was made about the conduct of the parties to the proceedings.  Neither party has been wholly unsuccessful in the proceedings.  Really, the basis of the application is the written offer made by the mother to the father prior to the commencement of the trial.

12. Although there are not full details before the Court, I am told that the overall costs of trial, that is, the costs both in respect of property and also parenting for the mother, are in the vicinity of $60 000 or $65 000.  Clearly a significant part of that must relate to the property proceedings. 

13. This is a matter where I am satisfied a costs orders ought to be made.  I do not accept the argument that the wife had to go considerably further than she went.  The whole purpose of the relevant provision about making written offers is to encourage parties to assess the strength or weakness of their case and to have a realistic discussion with their lawyers about that.  This would be with a view to trying to save one another inconvenience and costs, and save the public purse court time unnecessarily used.  The pool of the property was always modest.  Each time the proceedings came before me I expressed concern that there would not be much left for the parties on the basis of having the sort of trial that was run at very significant cost to each of the parties. 

14. This put a very serious responsibility on the father to look very seriously at that offer and either accept or reject that offer.  To the extent that it was inferred that the wife ought to have put something before the Court to indicate that the mortgagee would be approving of the matters contained in the offer, I am not aware of any correspondence where this was raised by those acting for the husband at the time. 

15. In my view, in all the circumstances, it is just that an order ought to be made.

16. I am also going to make costs orders in relation to the proceedings that have been withdrawn.  There is a costs application by both the Independent Children's Lawyer (“ICL”) and also by the mother to the effect that the father pay their costs in respect of the stay application which the father has not proceeded on.  In respect of the amount sought by the ICL, it is what I would regard as a quite modest sum of $1500.  In my view, clearly it is a case where an order ought to be made in favour of the ICL when they have been brought to Court and have been caused costs by the father ultimately not proceeding on the application which brought them before the court.  So he has been entirely unsuccessful in that proceeding.  They should not have had to be here.  Clearly they get their costs. 

17. I have a similar view in respect of the mother’s application.  The father brought the mother here on a stay application to stay the substantive orders pending what he was doing in terms of an appeal.  His appeal has been abandoned and the stay application withdrawn.  In my view, in those circumstances and there not being factors which, in my view, would mitigate against it, there ought to be a costs order in favour of the mother.

I certify that the preceding seventeen (17) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 6 August 2015

Associate:     

Date:              4 November 2015