Loude and Loude (Costs)
[2010] FamCAFC 218
•04 November 2010
FAMILY COURT OF AUSTRALIA
| LOUDE & LOUDE (COSTS) | [2010] FamCAFC 218 |
| FAMILY LAW - APPEAL – COSTS OF APPEAL – Respondent wife wholly unsuccessful in the appeal – Appropriate for the wife to pay the husband’s cost of and incidental to the appeal. |
| Family Law Act 1975 (Cth) s 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| APPELLANT: | Mr Loude |
| RESPONDENT: | Ms Loude |
| FILE NUMBER: | BRC | 2429 | of | 2007 |
| APPEAL NUMBER: | NA | 58 | of | 2008 |
DATE DELIVERED: | 04 November 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Boland & Murphy JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 May 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 518 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kent SC with Mr Waterman |
SOLICITOR FOR THE APPELLANT: | Nick Procter & Associates |
| SOLICITOR FOR THE RESPONDENT: | Peter J Sheehy |
Orders
The wife pay the husband’s costs of and incidental to the appeal as agreed within 21 days of the date of this order and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Loude & Loude (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 58 of 2008
File Number: BRC 2429 of 2007
| Mr Loude |
Appellant
And
| Ms Loude |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 April 2009 we delivered our reasons for judgment in respect of the husband’s appeal against orders made by Federal Magistrate Wilson on 30 May 2008. We allowed the husband’s appeal and set aside the Federal Magistrate’s orders.
Orders 3 and 4 of our orders contained directions to the parties to provide an agreed statement of relevant facts to enable us to consider whether we could re-determine the matter, or if no agreement was reached between the parties, permitting the parties to each file any further material on which they sought to rely if we were to re-determine the matter.
On 19 February 2010 we delivered our further reasons in which we concluded we could not re-determine the matter, and accordingly we made orders on that day remitting the matter for rehearing before a Federal Magistrate other than Federal Magistrate Wilson.
Order 3 of our orders was a direction asking the parties to file written submissions in relation to costs. Order 3 was in the following terms:
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
a. on behalf of the appellant within 21 days of the date hereof;
b.on behalf of the respondent in response thereto within 21 days thereafter;
c.on behalf of the appellant in reply thereto within seven days thereafter; and
d.that each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
On 4 March 2010 we received submissions from the husband. The wife filed her submissions on 23 March 2010. No submissions were filed by the husband in reply.
Relevant law
There is no dispute that costs are governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
The parties’ submissions
Submissions of the husband
The husband’s counsel commenced his submissions noting that the husband had filed his Notice of Appeal on 26 June 2008 and that the wife had opposed the appeal. The submissions recorded that the husband was wholly successful in the appeal and the orders for Federal Magistrate Wilson made on 30 May 2008 were set aside.
The husband sought that the wife should pay his costs of and incidental to the appeal, up to and including 3 April 2009, with the quantum of costs to be agreed in writing between the parties within 21 days, and in the absence of agreement, as may be assessed.
In the event that we found that each party to the appeal should bear his or own costs, the husband sought a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth).
In dealing with the circumstances which may justify a departure from s 117(1), the husband’s counsel noted that the net assets of the parties were found to be $2,230,648.00. It was further explained that, at the date of trial, the wife was engaged in full time employment as a teacher and earning $1,424.00 per week and the husband had deposed to an average weekly income of $975.00 per week and was found to receive further benefits from the business. It was asserted that s 117(2A)(a) was not relevant to our consideration.
The husband submitted that the wife had been wholly unsuccessful in relation to the appeal.
As the parties had not been able to agree on a statement of facts to enable us to re-determine the matter and as the matter had been remitted for rehearing, the husband sought that he should receive a certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) for the new trial.
Submissions of the wife
The wife’s solicitor, under the heading “2. Principles” at paragraph 2, submitted that:
The substantive finding of the Full Court herein that in this case that an appropriate division of property at Trial should have been 60% to the Wife and 40% to the Husband. Because the Full Court has ordered a redetermination of the matter by way of a full rehearing, for the reasons set out principally in paragraphs 38, 42 and 43 of the Judgement [sic] of the Full Court of the 19th February, 2010, it cannot be submitted (with respect) that the Wife has been wholly unsuccessful in the proceedings viz this Appeal.
The submissions went on to note that the Federal Magistrate who reheard the matter would be required to determine the matter on the evidence then before him or her.
We do not consider it necessary to set out paragraph 38 of our reasons which were directed to the impracticability of this Court re-determining the matter without the relevant factual findings.
Paragraph 42 of our reasons recorded submissions made on behalf of the wife that both parties should be able to adduce evidence of post separation contributions from May 2007 to the present date.
In paragraph 43 of our reasons we explained we found error by the Federal Magistrate in his contribution assessment by reason of double counting to some degree of his assessment of the wife’s contributions.
Discussion
In our substantive reasons delivered on 3 April 2009, we found that the Federal Magistrate had failed to give appropriate weight to a number of relevant matters (paragraph 82) and that he failed to afford appropriate weight to the husband’s post separation superannuation contributions (paragraph 83).
We also found appealable error in respect of the adjustment made by the Federal Magistrate under s 75(2).
In summary, we found merit in the grounds of appeal argued by the husband.
We agree with the submissions made on behalf of the husband as to the parties’ financial circumstances. We are satisfied that nothing in either party’s financial position is relevant to our determination.
We agree with the submissions made on behalf of the husband that the wife has been wholly unsuccessful in relation to the appeal and that she should pay the husband’s costs of and incidental to the appeal.
In these circumstances, the necessary criteria for granting a costs certificate to the wife under s 9 of the Federal Proceedings (Costs) Act1981 (Cth) is not established. While both parties seek a certificate in respect of the rehearing, having regard to the opportunity afforded to the parties to have us re-determine the matter, we do not propose to award such certificates.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
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