King & Hamidou

[2015] FamCA 1028

FAMILY COURT OF AUSTRALIA

KING & HAMIDOU AND ANOR [2015] FamCA 1028

FAMILY LAW – COSTS – Where, by consent, the wife withdrew her application for an anti-suit injunction restraining the husband’s sister from pursuing proceedings commenced by her in the Local Court and District Court of New South Wales – Where senior counsel for the husband made an oral application for costs – Costs reserved to the final hearing.

Family Law Act 1975 (Cth) s 117

Markoska & Markoska (2011) 46 Fam LR 598
Smith & Saywell (1980) 47 FLR 267

APPLICANT: Ms King

RESPONDENT: Mr Hamidou

PROPOSED 2^ND RESPONDENT: Ms B

FILE NUMBER: WOC 1015 of 2013

DATE DELIVERED: 3 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 3 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Johnson Horsley Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Campton SC

SOLICITOR FOR THE 1^ST RESPONDENT: Dignan & Hanrahan Solicitors

SOLICITOR FOR THE PROPOSED 2^ND RESPONDENT: Mr McManus of Colin Daley Quinn

The Court orders by consent that:

1. Orders and notations are made in terms of paragraphs 1 to 11 of a document titled “Minute of Orders” dated 3 November 2015, filed herein and set out hereunder:

1.1.That the Application in a Case filed 27 October 2015 be withdrawn.

1.2.It is noted that the withdrawal of the application in a case referred in Order 1 above is not a concession by the Wife that there are any monies due and owing to the Husband’s sister, Ms B, by reason of any trust arrangement and for debt.

1.3.It is further noted that in the event that judgment is entered against the husband in District Court proceedings being Case Number 2015/267159 and/or against C Pty Ltd in Local Court proceedings being Case Number 2015/267163 that the Wife will contend at the final hearing in these property proceedings that the said judgments do not constitute a joint liability of the parties and, if payable, shall be paid from the Husband’s entitlement without contribution from the Wife.

1.4.That the time for compliance by the Wife with the Orders dated 11 September 2015 be extended to 6 November 2015.

1.5.That the Husband file and serve any Amended Response by 27 November 2015.

1.6.That the parties each file and serve an updating Financial Statement by 30 April 2016.

1.7.That on or before 31 January 2016 the Wife shall cause the financial reports of D Business to 31 December 2015 to be provided to the single expert, Mr E, with a request that Mr E provide the parties with any update as to the opinions expressed by him in his valuation dated 29 October 2015.

1.8.That within 7 days the solicitors for the Wife provide the Husband’s solicitor with the names of 3 expert valuers to value the contents of the Suburb F property and the residence and office premises of the Husband and thereafter the Husband shall select one expert who shall be appointed as the Single Expert to value the said contents and the parties shall share equally in the costs of the Single Expert.

1.9.That the parties shall do all things necessary to instruct and procure an Affidavit from Ms G as to the conduct of the D Business with such Affidavit to be filed by 31 March 2016.

1.10.It is noted that the Husband has filed his trial evidence in accordance with the directions made on 11 September 2015 but not yet served same.

1.11.That the proceedings are listed for final hearing for 5 days to commence 6 June 2016.

1. The final hearing is to proceed on the basis of one affidavit per witness and the parties are to provide the other with forty-eight (48) hours’ notice as to whether the deponent of any affidavits are to be available for cross-examination.

1. The parties each file and serve electronically, including providing a copy to my chambers, an outline of case document no later than 4pm on Friday 3 June 2016. This document is to include:

3.1.A concise set of orders to be sought, if different from that already filed;

3.2.A joint balance sheet;

3.3.A list of affidavits to be read, in whole or in part, including identifying those paragraphs read if in part;

3.4.A list of objections to evidence upon which rulings are required; and

3.5.A bullet point summary of argument in relation to issues in dispute.

The Court further orders that:

1. The directions hearing listed for Monday, 9 November 2015 is vacated.

1. The applicant wife is to pay the costs of Ms B in respect to the costs incurred for today’s application in the sum of $2,200 inclusive of GST.

2. The husband’s oral application for costs is reserved to the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & Hamidou and Anor 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: WOC 1015 of 2013

Ms King

Applicant

And

Mr Hamidou

Respondent

And

Ms B

Proposed 2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, senior counsel for the respondent husband has presented a strong argument in favour of his client being awarded costs in respect to the applicant wife withdrawing her application for an anti-suit injunction. The Court has power to grant an anti-suit injunction pursuant to section 34 of the Family Law Act1975 (Cth) (“the Act”), the Court’s accrued jurisdiction or, potentially, section 114(3) of the Act. However, such an order is a rarity. The power is usually exercised with a view to restraining proceedings that are vexatious or unreasonably commenced in another jurisdiction or otherwise to restrain some unconscionable conduct.[1] 

   [1] CSR Limited & Cigna Insurance Australia Limited (1997) 189 CLR 345.

2. In Smith & Saywell (1980) 47 FLR 267, at pages 282 - 283, the Full Court confirmed that the Court has power to grant injunctive relief insofar as it may apply to third parties, but great caution should be exercised when granting such relief with a view to restraining that third party from pursuing their legal rights.

3. In these proceedings it could not be said that the proceedings, commenced in the Local Court of New South Wales and the District Court of New South Wales, by Ms B were commenced either vexatiously or unreasonably or that unconscionable conduct was involved. 

4. In support of his argument that these proceedings are unnecessary, senior counsel for the husband referred to correspondence between the husband’s and the wife’s solicitors and, in particular, correspondence from Johnson Horsley Lawyers dated 12 October 2015, noting in the penultimate paragraph:

   We advise that should your client fail to provide the Undertaking sought, admit liability for the asserted debts and/or consent to any judgment our client shall maintain a position before the Family Court that such a liability/ judgment should not be one that falls on the parties jointly and shall be the sole liability of your client and not one that is taken into consideration by the Court in ascertaining the parties’ matrimonial pool.

5. That proposition is an entirely reasonable proposition that was advanced by Johnson Horsley Lawyers and, in itself, is the reality. The Court in these proceedings will consider that issue as a matter to be determined at the final hearing. That outcome is confirmed in the consent orders that have been entered into today. 

6. In Markoska & Markoska (2011) 46 Fam LR 598, Murphy J summarised the relevant principles in respect to awarding costs, under the Act, as follows:

   The Family Law Act provides that, as a general rule, each party to the proceedings under the Act shall bear their own costs: s 117(1). But, the court retains a discretion to award costs in circumstances considered appropriate to justify an award.

7. At paragraphs [7] – [9], his Honour said:

   The court is required to have regard to a number of specified matters in the exercise of discretion: s 117(2A). Yet, while regard must be had to those matters, the discretion ultimately remains at large: s 117(2A)(g).

   Thus, it is not necessary for a court to be satisfied that all of the factors enumerated in s 117(2A) of the Act are satisfied before an order for costs is made.

   So too, it is not necessary for an applicant for costs to satisfy “any additional or special onus”; rather, what is required is “a finding of justifying circumstances as an essential preliminary to making of an order”. (References omitted)

8. In considering whether to award costs, section 117(2A)(g) requires the Court to consider such other matters that the Court considers to be relevant. In this matter it is highly relevant that the solicitor and counsel for the wife made an early endeavour to resolve the matter before the Court today and took a constructive approach to progressing the matter to final hearing. This avoided the parties incurring additional costs in respect to a callover that had been listed for next Monday.

9. In that context, I return to refer again to the decision of Murphy in Markoska (supra) where his Honour said that, in considering the question of costs, it may be appropriate to consider costs incurred in interim proceedings in the context of the wider litigation between the parties. In this case, the Court will ultimately be considering this issue as to whether or not the payment of monies by the husband to his sister should or should not be included in the marital property pool. In exercising discretion under section 117(2A) of the Act, I therefore reserve the question of costs of today’s proceedings until final hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 3 November 2015.

Associate:

Date:  24.11.2015