Kulat & Azzarudin (No 2)

[2018] FamCA 107

FAMILY COURT OF AUSTRALIA

KULAT & AZZARUDIN (NO. 2) [2018] FamCA 107

FAMILY LAW – COSTS – Where the father seeks a stay of orders pending appeal against substantive orders – Where the applicant was wholly unsuccessful in that application – Where the Court has discretion to make orders for costs under s 117(2) Family Law Act 1975 (Cth) – Where the Court must consider factors in s 117(2A) Family Law Act 1975 (Cth) in exercising its discretion – Where s 117(2A)(e) Family Law Act 1975 (Cth) is the most significant factor – Where the applicant is ordered to pay the respondent’s costs – Where costs are awarded on a party and party basis for a fixed sum.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123
Kohan & Kohan (1993) FLC 92-340
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Mr Kulat

RESPONDENT: Ms Azzarudin

FILE NUMBER: BRC 1132 of 2012

DATE DELIVERED: 19 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 16 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Anderson

SOLICITOR FOR THE APPLICANT: Steven Watkinson

COUNSEL FOR THE RESPONDENT: Ms Horsley

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson Lawyers

Order

1. That the applicant father pay the mother’s costs of and incidental to the application filed 4 January 2018 fixed in the sum of $6,372.18.   

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  Kulat & Azzarudin (No. 2) 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 BRISBANE

FILE NUMBER: BRC 1132/2012

Mr Kulat 

Applicant

And

Ms Azzarudin 

Respondent

REASONS FOR JUDGMENT

1. On 16 January 2018 I dismissed the father’s application for a stay of the parenting order made by me on 22 December 2017.

2. The mother applied for her costs of and incidental to the stay application to be paid by the father on an indemnity basis or in the alternative in the fixed sum of $10,000 or in the further alternative on a party and party basis fixed in the sum of $6,372.18.

3. The father opposed any order for costs but in the event that an order is to be made it was submitted that it should be on a party and party basis. There was no opposition to the costs being for a fixed sum and no real opposition was made to it being fixed in the sum claimed.  

4. I then heard each party’s submissions as to costs but extended to each counsel the opportunity to locate any authority on the principles applicable if an order for costs is to be made in a sum exceeding a party and party assessment but not indemnity costs. Neither counsel sought to cite any further authority.

how costs applications are determined

1. In this jurisdiction parties are generally required to bear their own costs.[1] However, where justifying circumstances exist, s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make such order for costs as the Court considers just.

   [1] Section 117(1) Family Law Act 1975 (Cth)

2. In the exercise of that discretion regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.

3. Those factors are as follows:

   (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.

4. No one factor has more weight than any other nor is it necessary for more than one factor to be present.[2]

   [2] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at 130

5. When considering what specific order to make, Rule 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the Court to make an order:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

6. In considering what specific order should be made the same Rule provides that the Court may consider any of the following factors:

   (a)the importance, complexity or difficulty of the issues;

   (b)the reasonableness of each party's behaviour in the case;

   (c)the rates ordinarily payable to lawyers in comparable cases;

   (d)whether a lawyer's conduct has been improper or unreasonable;

   (e)the time properly spent on the case, or in complying with pre-action procedures; and

   (f)expenses properly paid or payable.

7. A court will not lightly make an order for costs to be paid on an indemnity basis. There would need to be some circumstance of an exceptional nature to justify that course.[3]

   [3] Kohan & Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Yunghanns v Yunghanns (2000) FLC 93-029

discussion

1. In support of the mother’s application for costs she relies upon a schedule prepared by her solicitor which calculates her costs on an indemnity basis at $13,948.77 and on a party and party basis at $6,382.18.

2. It is submitted on behalf of the mother that the circumstances warranting an order for indemnity costs rest largely on the enormity of what was being sought by the father viz. an interim relocation and the absence of a realistic prospect of success of such an application.

3. It is further submitted that if an order is not made for indemnity costs, then the sum ordered should be fixed in the sum of $10,000 because an order for party and party costs will not fairly compensate the mother for her actual costs.

4. It is not seriously in contention that the father’s financial circumstances are superior to those of the mother although there is not a great deal of detail in the evidence relating to either party’s particular financial circumstances. They each own property. The father works in Country C and seems to enjoy quite a high standard of living there. The mother is employed part time and receives an income of $55,000 per annum.  

5. The father has been wholly unsuccessful in his application and I find this factor to be the most significant one in this case.

conclusion  

1. I am persuaded that a costs order should be made but I do not consider that the circumstances of this case justify an order for costs on other than a party and party basis and I propose to fix the costs in the amount sought.

I certify that the preceding (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 19 January 2018.

Associate:

Date: 19/01/2018