Kiddle & Daher (No 2)
[2022] FedCFamC1F 247
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kiddle & Daher (No 2) [2022] FedCFamC1F 247
File number(s): MLC 528 of 2020 Judgment of: WILSON J Date of judgment: 27 April 2022 Catchwords: FAMILY LAW – COSTS – second respondent’s application for indemnity costs to be paid by the applicant – applicant’s s 79 application wholly unsuccessful – held, indemnity costs ordered. Legislation: Family Law Act 1975 ss 117, 117(2A) Cases cited: Fitzgerald v Fish (2005) 33 Fam LR 12
Kiddle & Daher [2021] FedCFamC1F 193
Division: Division 1 First Instance Number of paragraphs: 21 Date of last submissions: 25 March 2022 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Higgins Legal Solicitor for the First Respondent: Not Applicable Solicitor for the Second Respondent: Mirrabella Solicitors ORDERS
MLC 528 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KIDDLE
Applicant
AND: MR DAHER
First Respondent
MR G DAHER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
WILSON J
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.The applicant must pay the second respondent’s party/party costs of this litigation from commencement until this day.
2.I direct that a registrar of this court must assess those costs and determine the amount of those assessed party/party costs by no later than 15 July 2022 unless I order otherwise.
3.If any party wishes to pursue the undertaking matter any further, they must inform my associates by 4:00pm on 11 May 2022. If no correspondence is received by my associates by this date, this issue will be taken to be abandoned.
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 Kiddle & Daher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 17 February 2022 I made orders in this proceeding for the parties to file and serve material in relation to two matters to be determined on the papers by me. The first related to an undertaking that the first respondent wished to pursue. The second related to costs.
On 24 February 2022 an undertaking and minute of consent orders was filed by the first respondent indicating that the parties had resolved the undertaking issue by consent. As such, these reasons address the second matter, namely the costs application sought by the second respondent.
If I am mistaken and any party wishes to pursue the undertaking matter any further, they must inform my associates by 4:00pm on 11 May 2022. If no correspondence is received by my associates by the stipulated time, this matter will be taken to be abandoned.
The second respondent has applied for an order that the applicant pays the second respondent’s costs of and incidental to this proceeding, such costs to be assessed on a party/party basis.
The applicant resisted such an order.
These reasons explain why the costs order sought by the second respondent must be made.
RELEVANT BACKGROUND
In this proceeding the applicant asserted that she possessed an equitable interest in two parcels of real estate, namely –
(a)B Street, Suburb C in the State of Victoria; and
(b)D Street, Suburb F, in the State of Victoria.
The second respondent was at all relevant times the sole registered proprietor of the two parcels of land referred to immediately above, a proposition that the applicant acknowledged.
By reason of there being a claim to one or more equitable interests in real estate owned by a person who was not in a matrimonial relationship with the applicant, I ordered the applicant to articulate her claim in relation to that or those equitable interests.
The applicant duly filed a statement of claim in which she purported to articulate the factual and legal basis for her claim to the equitable interest she asserted. The second respondent challenged the applicant’s assertions in various paragraphs of her statement of claim. She pleaded the existence of –
(a)an equitable estoppel;
(b)a constructive trust; and
(c)a resulting trust.
Those claims in various paragraphs of the applicant’s statement of claim were defective, for reasons I addressed in detail in reasons I handed down on 15 November 2021.[1] I struck out the applicant’s statement of claim, granted her the right to replead and I reserved the respondent’s costs thrown away.
[1] Kiddle & Daher [2021] FedCFamC1F 193.
On 17 February 2022 I made orders for the filing of affidavit material and submissions on the question of costs. The last date for the filing of submissions was 24 March 2022. Pursuant to those orders each of the applicant, the first respondent and the second respondent filed affidavit material. All but the first respondent also filed submissions. It is necessary to address those documents to better understand my reasons for the costs order I hereby make.
Logically, as the second respondent sought his costs it is utile to address his claim first.
THE SECOND RESPONDENT’S CONTENTIONS
The second respondent relied on his 10 March 2022 affidavit and the exhibits thereto. He stated that he based his application on the following principle grounds –
(a)the applicant’s property application did not have a proper basis (I infer, against him) and throughout the proceeding she was unable to provide evidence to substantiate her claim;
(b)in October 2020 the second respondent’s solicitors wrote to the applicant’s then solicitor inviting the applicant to withdraw the application (I infer, insofar as the application concerned the second respondent);
(c)in January 2021, upon the applicant’s solicitor withdrawing from the litigation, the second respondent’s solicitor renewed the second respondent’s invitation to withdraw the application;
(d)the applicant did not withdraw her application against the second respondent despite being twice invited to do so;
(e)the applicant persisted with “an unrealistic claim” (the second respondent’s words);
(f)the applicant failed to file a statement of claim in conformity with orders made on 5 November 2021; and
(g)the applicant’s claim was wholly unsuccessful.
In greater detail the second respondent deposed to broader factual matters. Those included the following –
(a)the second respondent gave money to the applicant and the first respondent and allowed them to live rent-free in his property;
(b)he helped them repay their loans and guaranteed other loans due by the applicant and the first respondent;
(c)at no stage did any agreement or understanding exist between the applicant and the first respondent with the second respondent to the effect that the applicant or the first respondent had an interest in relation to any of the second respondent’s property;
(d)in defending his position in opposition to the applicant’s claims in this litigation he had incurred over $46,000 in legal fees;
(e)the second respondent has advanced at least $596,382.93 to the applicant and the first respondent; and
(f)on 17 February 2022 the applicant filed a notice of discontinuance.
The second respondent deposed to his instructing his solicitors to make an offer of compromise on 16 February 2022. It was that the second respondent would accept payment of $10,000. That offer was not accepted, he said.
The second respondent filed submissions dated 23 March 2022. In those submissions, the second respondent submitted as follows –
(a)he was 66 years of age, not working and he was bereft of superannuation;
(b)he lives in one of the units at the B Street property and he is solely reliant on the income he receives from the other two units at that property;
(c)the applicant at no stage particularised her assertion that she and the first respondent had an interest in both parcels of real estate owned by the second respondent;
(d)the applicant failed to provide disclosure pursuant to orders made on 23 April 2020;
(e)the applicant should not be accepted in her contention that she was required to prepare her statement of claim in the absence of full disclosure;
(f)despite having leave to replead the statement of claim that was struck out, the applicant has not repleaded any statement of claim; and
(g)the applicant filed a notice of discontinuance in relation to her s 79 application on 15 February 2022, almost two years and one month to the day after commencing this proceeding.
The second respondent argued that the claim advanced by the applicant against him was ill conceived, that it never adequately or appropriately set out her allegations and that the applicant had no reasonable prospect of success on it.
There is considerable merit in that proposition.
CONSIDERATION
As has been repeatedly observed, in order to enliven a costs order under s 117(2) of the Family Law Act, only one of the operative provisions of s 117(2A) needs to be invoked.[2] Here, the second respondent’s contentions for costs fall comfortably within the provision that addresses a claim that is “wholly unsuccessful”. The applicant failed dismally in her claim against the second respondent. Her claims in equity and for breach of some alleged contract were baseless. They should never have been made. In making them, in persisting in them and in keeping the second respondent locked into this proceeding, the applicant occasioned significant costs to say nothing of the uncertainty in remaining embroiled in litigation that was baseless.
[2] Fitzgerald v Fish (2005) 33 Fam LR 12.
In my view an order is warranted that the applicant pay the second respondent’s party/party costs of this litigation from commencement until this day. I direct that a registrar of this Court must assess those costs and determine the amount of those assessed party/party costs by no later than 15 July 2022 unless I order otherwise.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 27 April 2022
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