Laniga & Carron (No 4)
[2023] FedCFamC2F 598
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Laniga & Carron (No 4) [2023] FedCFamC2F 598
File number: BRC 9038 of 2016 Judgment of: JUDGE LAPTHORN Date of judgment: 30 May 2023 Catchwords: FAMILY LAW - Costs - Application to set aside a Costs Assessment Order - Notice of Discontinuance filed in relation to an appeal against a costs order – Consideration as to whether the payee is estopped from enforcing the costs order in light of written promise not to pursue the costs order if the Notice of Discontinuance filed – Costs Assessment Order set aside - Permanent Stay Order made Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2012 (Cth) rr 11.07, 12.51
Cases cited: Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333
Carron & Laniga [2019] FamCAFC 115, (2019) FLC 93-909
The Commonwealth v. Verwayen (1991) 170 CLR 394
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: Matter considered on the papers in Chambers Place: Brisbane Solicitor for the Applicant: Self represented Litigant Solicitor for the Respondent: Goode Family Lawyers ORDERS
BRC 9038 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARRON
Applicant
AND: MS LANIGA
Respondent
order made by:
JUDGE LAPTHORN
DATE OF ORDER:
30 May 2023
THE COURT ORDERS THAT:
1.The Costs Assessment Order made 22 February 2022 is set aside.
2.The Respondent Wife be permanently stayed from enforcing the Order for Costs made 4 December 2018.
3.All outstanding applications be dismissed.
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 Laniga & Carron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION
This matter has come before me to determine the husband's Application in a Proceeding filed 7 March 2022. In that application he sought orders pursuant to rule 12.51 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2012 to set aside a Costs Assessment Order made by a Judicial Registrar on 22 February 2022. The application is opposed by the Respondent wife. The significant consideration in this case is whether the wife is estopped from pursuing the costs order regardless of any assessed amount.
MATERIAL RELIED ON
The parties agreed for the matter to be ‘heard on the papers’. I have had regard to their written submissions and the following documents. Any evidentiary findings set out in this judgment have been determined from this material.
Both parties relied on:
(a)Costs Orders made by Judge Egan on 4 December 2018;
(b)Judge Egan’s Reasons For Judgement delivered 4 December 2018;
(c)The Appeal Decision by Aldridge, Kent & Austin JJ of the Family Court of Australia on 21 June 2019, Carron & Laniga [2019] FamCAFC 115, (2019) FLC 93-909;
(d)Property Orders made by Judge Turner on 26 March 2020;
(e)Judge Turner’s Reasons for Judgement delivered 26 March 2020;
(f)Orders made by Judge Turner on 11 May 2020;
(g)Costs Orders made by Judge Turner on 22 October 2020;
(h)Judge Turner’s Reasons for Judgement delivered 22 October 2020;
(i)Costs Orders made by Judge Turner on 25 February 2021;
(j)Judge Turner’s Reasons for Judgement delivered 25 February 2021;
(k)Costs Orders made by Judge Turner on 16 September 2021;
(l)Judge Turner’s Reasons for Judgement delivered on 16 September 2021;
(m)Orders made by a Judicial Registrar on 10 December 2021;
(n)Judicial Registrar's Preliminary Costs Assessment made 21 January 2022; and
(o)Costs Assessment Order made by a Judicial Registrar on 22 February 2022.
The husband also relied on:
(a)His affidavit filed 7 March 2022;
(b)The affidavits of Ms D filed:
12 November 2020; and
11 September 2018;
(c)The affidavit of Mr E filed 23 April 2021;
(d)The wife’s Certificate of Readiness filed 9 December 2021; and
(e)The wife’s Costs Notice filed 5 April 2022.
The wife also relied on:
(a)Her Application in a Case filed 24 April 2020 seeking costs on an indemnity basis;
(b)The Affidavit of Ms D filed 24 April 2020;
(c)Her Response to an Application in a Proceeding filed 5 April 2022;
(d)Her Summary of Argument filed 27 May 2022;
(e)The husband’s Summary of Argument filed 8 June 2020;
(f)Her two affidavits filed 5 April 2022;
(g)Her affidavit filed 1 March 2022; and
(h)Her Application for Review filed 1 March 2022.
The wife also sought to rely on Annexure G-01 of the affidavit of Ms D filed 11 September 2018 being:
Letter of Offer to Settle, dated 29 April 2016 made pursuant to the principles expounded in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333
The husband objected to the wife relying on that letter arguing it “did not meet the principles expounded under Calderbank v Calderbank”. There may be weight in the husband’s argument, but ultimately I was not required to consider the letter given my findings and conclusion set out below.
In order to have all relevant material before me I have also had regard to the following documents the wife submitted “should also be considered”:
(a)Her Amended Initiating Application filed 20 October 2016;
(b)The husband’s Response filed 30 September 2016;
(c)Her Financial Statement filed 9 September 2016;
(d)The husband’s Financial Statement filed 30 September 2016; and
(e)Her Evidence in Chief 4 June 2018.
HISTORY
The parties have been before the court for seven years with many appearances before a number of different judges in relation to their parenting and property proceedings as well as on appeal. In order not to over complicate this judgment I will only refer to the history relevant for me to determine the issue before me.
On 18 September 2018, Judge Egan made final property orders pursuant to Pt VIII of the Family Law Act 1975 (Cth) ("substantive proceedings"). The husband filed an appeal against those orders (Appeal No. "NOA90/2018") on 12 October 2018.
While the appeal was pending for the substantive proceedings, Judge Egan made the following order on 4 December 2018 ("the costs order"):
That save for the wife’s costs incurred in respect of any unsuccessful or partially unsuccessful application in a case filed on her behalf in the property proceedings, and save for any other of the wife’s costs incurred in respect of an application in a case filed on behalf of either party in the property proceedings where costs orders were made against the wife:
1.The husband pay the wife’s costs of and incidental to the property proceedings, and of this application, to be assessed on a party/party basis, on the Family Court Scale of costs, as and from the date of the making of the first offer to settle on 29 April 2016.
On 17 December 2018, the husband appealed the costs order (Appeal No. "NOA117/2018"). By consent of the parties, Judge Coates ordered, on 15 April 2019, that the costs order be stayed pending the outcome of NOA117/2018.
The Full Court upheld the husband’s appeal in respect of NOA90/2018 on 8 July 2019. The orders of Judge Egan in the substantive proceedings were set aside and the matter remitted for re-hearing. When the matter came before Judge Turner on 31 October 2019 all previous property orders were discharged, some final property orders were made by consent and judgment was reserved.
On 31 October 2019, the Appeals Registrar wrote to the parties advising NOA117/2018 had been listed for mention on the basis the court had not received any communication from the parties "having regard to the outcome of the appeal or whether the parties reached an accommodation which will enable the appeal to discontinue."
On 1 November 2019 the wife's solicitor and the husband exchanged email correspondence agreeing the husband would file a Notice of Discontinuance against NOA117/2018 and in exchange the wife would not enforce the costs order. The extent of that email exchange is as follows:
Friday, 1 November 2019 12:58:35 AEST
Good morning [Mr Carron],
We refer to the above appeal and note that the matter has been brought on for mention on 5 November 2019. We confirm that there is no utility in proceeding with the appeal in circumstances where the Orders for costs in relation to Judge Egan’s Orders are redundant.
Kindly file and serve your Notice of Discontinuance as a priority. In circumstances where you fail, neglect or refuse to discontinue the proceedings and we are required to attend by telephone on 5 November 2019, we are instructed to seek a costs order be made against you on an indemnity basis and we shall rely upon this email in respect of same. We trust common sense will prevail in these circumstances.
We look forward to receiving your filed Notice of Discontinuance by the close of business today.
Kind regards
[Ms D]
Friday, 1 November 2019 1:18 PM
[Dear Ms D]
In order to provide certainty in this matter, please provide written confirmation that your client agrees to jointly request that the costs order dated 4 December 2019 [sic] be set aside as part of the proceedings currently being heard by her Honour Judge Turner.
Once that is received, a Notice of Discontinuance will be filed.
Yours faithfully
[Mr Carron]
Friday, 1 November 2019 14:29:07 AEST
[Hi Mr Carron],
For clarity, our client is seeking that Judge Turner make a costs order against you on an indemnity basis and we are instructed to file an application for costs as directed by Judge Turner yesterday once the matter has been finally determined.
The Orders made by Judge Egan are no longer relevant and should you not discontinue your appeal in relation to the orders made by Judge Egan then we shall submit to [the Registrar] that your intention is simply to inflate our client’s legal fees. Where [the Registrar] is unwilling to make that costs order, we shall bring it to Judge Turner’s attention in our application for costs as discussed above.
We hope this clears up any confusion you may have with respect to our client’s position on costs.”
Kind regards
[Ms D]
Friday, 1 November 2019 3:04 PM
I refer to [the Registrar’s] letter dated 31 October 2019 where she states there has been no advice as to “whether the parties have reached an accommodation which will enable this appeal to be discontinued”.
I also note that the costs order was stayed pending the outcome of Appeal No 117/2018. Discontinuing that appeal would remove that stay.
I have been advised that your client’s response is unclear in regards to the existing order and that discontinuing the appeal without reaching an accommodation would be unwise.
In order to facilitate a resolution to the matter I state that my understanding from your response is that your client will not be pursuing enforcement of that order and will be seeking a new costs order. Please advise if this is incorrect. Failure to respond by 5pm today will taken [sic] as your client’s acceptance of this understanding and I will file a Notice of Discontinuance accordingly.
Yours faithfully
[Mr Carron]
01/11/2019 15:06
[Hi Mr Carron],
Our client will not be pursuing the Order made by Judge Egan in relation to costs.
Our client instructs us to seek a costs order against you in relation to the Order that Judge Turner will make as a result of the trial yesterday.
Kind regards
[Ms D]
On 1 November 2019, the husband filed a Notice of Discontinuance for the appeal of the costs order, the effect of which was to reinstate the order.
On 26 March 2020, Judge Turner delivered her reasons for judgment and made further property orders, that were to be read in conjunction with the final property Orders made by consent on 31 October 2019. Although the published orders did not include any reference to costs, in the reasons her Honour said at paragraph [109]:
If parties wish to pursue a costs application and the appropriate application and supporting affidavit is to be filed in accordance with the legislation.
On 24 April 2020 the wife filed an Application in a Case seeking that:
the Respondent Husband pay the Applicant Wife's taxed costs of and incidental to the initiating application filed on 9 September 2016 on an indemnity basis.
On 11 May 2020 Judge Turner made orders for the filing of written submissions.
Judge Turner delivered her reasons for judgment in relation to costs on 22 October 2020. In those reasons her Honour said:
What costs need to be determined?
[22]I am somewhat confused by the submissions of the wife as the wife is seeking indemnity costs from the commencement of her initiating application in September 2016 for both parenting and property matters.
[23]I find that a costs order already exists as to the property proceedings up to and including the first property hearing as a costs order was made by Judge Egan in December 2018.
[24]I find that in addition to the already existing costs order by Judge Egan there are two further areas where costs are to be considered, namely:
a)The property proceedings from July 2019 when the Full Court remitted the property matter for rehearing until the delivery of the property judgment by Judge Turner in March 2020.
b)The parenting proceedings from September 2016 to the making of final parenting orders by consent in July 2019.
[25]I will now consider each of these areas in determining what costs orders are to be made.
December 2018 costs order
[26] On 4 December 2018 Judge Egan made the following costs order
“Save for the wife’s costs incurred in respect to any unsuccessful or partially unsuccessful application in a case filed on her behalf in the property proceedings and save for any other of the wife’s costs incurred in respect of an application in a case filed on behalf of either party in the property proceedings where costs orders were made against the wife… the husband pay the wife’s costs of and incidental to the property proceedings, and of this application, to be assessed on a party/party basis, on the Family Court scale of costs, as and from the date of making of the first offer to settle on 29 April 2016”
[27]The husband appealed the costs order and the parties agreed to stay the costs order pending the outcome of the appeal.
[28]The husband subsequently discontinued the appeal therefore reinstating the December 2018 costs order.
[29]As the issue of costs for property proceedings up to and including the September 2018 costs application has been judicially determined then I find that there is no basis for this costs judgment to be disturbed.
[30]As to determining in dollar terms the amount of costs payable pursuant to the December 2018 costs order, I direct that the wife file and serve her calculation of the party/party costs with the husband having a right to comment as to the calculation.
[31]Upon receiving those submissions the court will then determine the amount of costs payable pursuant to the order of Judge Egan made in December 2018.
After considering the property proceedings, from the date the matter was remitted from the Full Court until delivery of her judgment, as well as the whole of the parenting proceedings, her Honour went on to make the following costs orders ("the second costs order"):
1.That the costs order made by Judge Egan on 4 December 2018 remain in full force and effect.
2.That within twenty-one (21) days from the date hereof the wife file and serve a calculation as to the amount of costs payable by the husband to the wife pursuant to the costs orders made by Judge Egan on 4 December 2018.
3.That upon receipt of the calculation referred to in Order 2 the husband has twenty-one (21) days to file and serve his submissions as to the calculation.
4.That within twenty-one (21) days from the date hereof the husband pay to the wife as directed by the wife the sum of $5,000 in respect to the costs thrown away by the wife as to her application in a case filed 22 May 2019.
5.That otherwise the parties bear their own costs in respect to the proceedings
The husband did not appeal this second costs order.
On 25 February 2021, Judge Turner made further orders for the wife to file further documentation to determine the amount of costs pursuant to the cost orders.
In her reasons published that day her Honour said:
[9] I further note that the husband disputes having to pay costs at all.
[10]This is not an issue that I will be making a determination on as the husband discontinued his appeal against the costs order made by Judge Egan and has not appealed the cost order made on 22 of October 2020 where it was ordered that the costs order made by Judge Egan on 4 December 2018 remain in full force and effect (Order1).
[11]The only issue left for this court to determine is what is a fair calculation of the costs payable by the husband to the wife pursuant to the orders made by Judge Egan in December 2018.
[12]I have therefore made orders that a further calculation be provided to the court by the wife taking into account the concerns raised as to the initial calculation as to costs and for the husband to provide submissions as to that calculation.
In response to those orders, the wife filed an affidavit of Mr E, Costs Consultant, who provided an itemised costs amount pursuant to schedule 3 of the Family Law Rules 2004. He assessed the total costs at $185,971.30. Judge Turner, on 16 September 2021, referred the matter to the National Costs Assessment Registrar for a cost assessment. On 22 February 2022, a Judicial Registrar ordered the husband to pay the wife the amount of $87,287.24 to be made within 28 days unless otherwise agreed in writing between the parties ("the assessment orders").
Following the assessment orders,
(a)On 1 March 2022, the wife filed an Application for Review, to review the assessment orders.
(b)On 3 March 2022, the husband filed an Application in a Proceeding, which was later amended on 12 April 2022, to in part, stay the assessment orders;
(c)On 7 March 2022, the husband filed another Application in a Proceeding to set aside the assessment orders ("the Application"); and
(d)On 5 April 2022, the wife filed a Response to the Application in a Proceeding, to vary the assessment orders.
On 4 March 2022 Judge Murdoch dismissed the wife's Application for Review.
On 13 April 2022, Judge Turner dismissed all outstanding applications ("the dismissal order").
The husband filed a Notice of Appeal on 20 April 2022 in relation to the dismissal order (Appeal No "NAA81/2022").
Notwithstanding the matter had gone on appeal, on 20 July 2022, Judge Turner made further orders to reinstate the Application and listed the matter before a Judicial Registrar for the hearing of the application to set aside the costs order on a date to be fixed.
On 26 July 2022 Justice Austin, sitting as an appellate judge, upheld the appeal and remitted the husband’s application for re-hearing de novo. The operation of the assessment orders was stayed pending the re-hearing.
DISCUSSION
The husband’s application relies on the provisions of rule 12.51 which provides:
12.51 Setting aside a costs assessment order
(1)This rule applies to a party who is liable to pay costs and receives a costs assessment order under subrule 12.44(1) or 12.50(3).
(2) The party may, within 14 days after receiving the costs assessment order, apply to have it set aside.
Note: If a party wishes to object to a costs assessment order after an assessment hearing has taken place, the party must do so in accordance with Part 12.9.
It is the husband’s case that the wife is estopped from pursuing the costs order by virtue of him having acted to his detriment in withdrawing his appeal against the costs order as a consequence of the representation made by the wife through her solicitor that she would not pursue the costs order of Judge Egan if he withdrew the appeal. The wife argued that his issue had already been considered by Judge Turner and therefore res judicata applies preventing the husband from arguing it again. I accept the submission that res judicata would apply if it had been considered. However, Judge Turner’s judgment does not indicate the issue of estoppel was considered. Although she ultimately found that the costs order remained in full force and effect there is nothing in that judgment to indicate she considered the issue of estoppel. Whilst she noted that the husband had withdrawn his appeal and not appealed her purported order that the costs order remained in full force and effect, I am not satisfied that that concludes the matter. I respectfully doubt a reference that a previous order remains in full force and effect amounts to an order. It would be more properly described as a notation. As a notation it would be correct as the order had not been set aside. The issue then is whether the original costs order is enforceable. Further the husband would not need to appeal Judge Turner’s order/notation if the wife is estopped from enforcing the original costs order.
The issue necessary to determine is whether it would be unconscionable for the wife to pursue the costs order in light of her earlier representation.
In Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 the High Court considered the issue of estoppel. Mason CJ and Wilson J at 399 said:
Promissory estoppel certainly extends to representations (or promises) as to future conduct... In principle there is certainly no reason why the doctrine should not apply so as to preclude departure by a person from a representation that he will not enforce a non-contractual right...
At 401 their Honours went on to say:
True it is that in the orthodox case of promissory estoppel, where the promisor promises that he will not exercise or enforce an existing right, the elements of reliance and detriment attract equitable intervention on the basis that it is unconscionable for the promisor to depart from his promise, if to do so will result in detriment to the promisee.
At 402:
None the less the proposition, by making the enforcement of the promise conditional on (a) a reasonable expectation on the part of the promisor that his promise will induce action or forbearance by the promisee and (b) the impossibility of avoiding injustice by other means, makes it clear that the promise is enforced in circumstances where departure from it is unconscionable.
At 404:
One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has “played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it”: per Dixon J. in Grundt [(1937) 59 CLR at 675]; see also Thompson [(1933) 49 CLR at 547]. Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.
Brennan J at 416: put it this way:
An equitable estoppel is binding in conscience on the party estopped, and it is to be satisfied by that party doing or abstaining from doing something in order to prevent detriment to the party raising the estoppel which that party would otherwise suffer by having acted or abstained from acting in reliance on the assumption or expectation which he has been induced to adopt. Perhaps equitable estoppel is more accurately described as an equity created by estoppel.
Mason CJ in The Commonwealth v. Verwayen (1991) 170 CLR 394, at 409 said:
That brings me to estoppel, a label which covers a complex array of rules spanning various categories. There are divisions between common law and equitable estoppel, between estoppel by conduct and estoppel by representation, and the distinction between present and future fact. There are titles such as promissory estoppel, propriety estoppel, and estoppel by acquiescence. Yet all of these categories and distinctions are intended to serve the same fundamental purpose, namely “protection against the detriment which would flow from a party's change of position if the assumption (or expectation) that led to it were deserted”: Waltons Stores [(1988) 164 CLR at 419], per Brennan J. See also per Mason CJ and Wilson J [(1988) 164 CLR at 404]; Grundt [(1937) 59 CLR at 674 675].
At 413:
The result is it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be proportionality between the remedy and the detriment which is its purpose to avoid.
Earlier in this judgment I set out the email trail between the wife’s solicitor and the husband on 1 November 2019. I find that the wife, through her solicitor, explicitly represented to the husband she would not pursue the costs order on the basis the husband filed a Notice of Discontinuance in relation to appeal NOA117/2018. The husband confirmed his understanding that by filing the Notice of Discontinuance the stay would be removed. He received advice from an unknown source there would be potential detriment to him by filing the Notice of Discontinuance without clarification from the wife that she would not be enforcing the costs order. He then sought that clarification as to the wife's representation. There can be no doubt that by his subsequent action in filing the Notice of Discontinuance he relied upon that representation. The effect of doing so was to enliven the costs order. Consequently, he lost his right to challenge the costs order on appeal and therefore acted to his detriment.
The wife has broken her promise not to pursue the costs order. Given the husband relied on that representation to his detriment and is now facing a costs order in the vicinity of $87,000, I find that it would be unconscionable to enable the wife to pursue the costs order. In other words, the wife is estopped from enforcing it.
I turn now to consider how, by way of orders that is to be achieved. I am satisfied that for the reasons set out above the costs assessment order should be set aside. It is necessary however, in order to finalise the matter, to make an order to permanently stay the wife’s enforcement of the costs order. The court has such power by virtue of rule 11.07(h).
I will order accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn. Associate:
Dated: 30 May 2023
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