Manesh & Manesh (No. 2)

Case [2021] FamCAFC 47

FAMILY COURT OF AUSTRALIA

Manesh & Manesh (No. 2) [2021] FamCAFC 47

Appeal from: Manesh & Manesh [2020] FCCA 1702
Appeal number(s): SOA 62 of 2020
File number(s): MLC 8955 of 2019
Judgment of: STRICKLAND J
Date of judgment: 12 April 2021
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the principal issue is the order providing monies to both parties by way of partial property settlement – Where the facts propounded in support of the application for leave to appeal are simply inadequate and do not demonstrate any basis for leave to appeal to be granted – Where the grounds of appeal do not identify any appealable error by the primary Judge – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs calculated on an indemnity basis – Where the applicant was wholly unsuccessful and his appeal was dismissed – Where the circumstances justify an order for costs and there are exceptional circumstances which warrant an order for indemnity costs – Where this Court is not satisfied that all of the charges are either necessary or reasonable – Costs fixed in the sum of $10,000 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).
Legislation:

Family Law Act 1975 (Cth) s75(2), s 79, s 117

Family Law Rules 2004 (Cth) r 19.18(1)(a)
Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Munday v Bowman (1997) FLC 92-784; 22 Fam LR 321

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126
Division: Appeal Division
Number of paragraphs: 70
Date of hearing: 17 November 2020
Place: Melbourne by video-link
The Applicant: In Person
Counsel for the Respondent: Mr Goddard
Solicitor for the Respondent: Freeman Family Law

ORDERS

SOA 62 of 2020
MLC 8955 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR MANESH

Applicant
AND:

MS MANESH

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

12 APRIL 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant husband pay the costs of the respondent wife of and incidental to the application for leave to appeal and the appeal fixed in the sum of $10,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Manesh & Manesh (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRICKLAND J

INTRODUCTION

  1. By Further Amended Notice of Appeal filed on 26 October 2020, Mr Manesh (“the husband”)…

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AGLC
Manesh & Manesh (No. 2) [2021] FamCAFC 47
Case
[2021] FamCAFC 47
Decision Date

CaseChat Overview and Summary

The Applicant, Mr Manesh, and the Respondent, Ms Manesh, are married parties who were before the Federal Circuit Court in property settlement proceedings. Mr Manesh sought leave to appeal from an interim order that provided for $120,000 from certain bank accounts to be distributed to each party by way of partial property settlement. Ms Manesh sought costs calculated on an indemnity basis if the application for leave to appeal was dismissed and/or if the appeal was dismissed if leave was granted. The primary legal issue for the court was whether leave to appeal should be granted. The court considered whether there was sufficient doubt as to the correctness of the primary Judge's decision to warrant reconsideration and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The court found that the application for leave to appeal was devoid of merit and did not demonstrate any basis for leave to appeal to be granted. The court also considered the issue of costs, finding that the husband had been wholly unsuccessful and that there were circumstances justifying an order for costs. The court ordered that leave to appeal be dismissed and that the husband pay the wife's costs of and incidental to the application for leave to appeal and the appeal, fixed in the sum of $10,000.

The court dismissed the husband's application for leave to appeal and found that there was no merit in any of the grounds of appeal. The court considered the application for indemnity costs, finding that there were circumstances justifying an order for costs, specifically that the husband had been wholly unsuccessful. The court noted that the application for leave to appeal, and the appeal, had been found to be devoid of merit and ought not to have been filed. The court fixed the husband's costs in the sum of $10,000, noting that it was not satisfied that all of the charges were either necessary or reasonable. The court also made an order that the application for leave to appeal be dismissed. This decision provides guidance to parties in family law proceedings regarding the circumstances in which leave to appeal may be granted and the criteria for ordering costs on an indemnity basis.

Orders

Orders of the court

SOA 62 of 2020

MLC 8955 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR MANESH

Applicant

AND:

MS MANESH

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

12 APRIL 2021

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant husband pay the costs of the respondent wife of and incidental to the application for leave to appeal and the appeal fixed in the sum of $10,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The order the subject of the leave application, and the appeal if leave is granted, provided for the husband to cause the monies in certain bank accounts in his name to be distributed $120,000 to the wife, and $120,000 to the husband, both by way of partial property settlement.RELEVANT BACKGROUND The parties married in Country C in 1996, and separated in Australia on 13 June 2019. There are two children of the marriage, with the eldest now over 18 years of age and attending university. He lives with the husband. The youngest child was aged 12 years at the time of the hearing before the primary Judge, and lives with the wife. She has not spent any time with the husband since the parties separated. The husband is a consultant, and the wife is not in employment. The parties have three unencumbered investment properties in addition to the former matrimonial home. Those investment properties are rented out, and they each receive rental income. It is unclear what the husband’s income from his employment is, but for the wife’s part, apart from the rental income, she receives Centrelink benefits. On 9 August 2019, the wife instituted property settlement proceedings in the Federal Circuit Court of Australia. The husband then filed a Response on 2 October 2019 wherein he not only sought property settlement orders, but also parenting orders. It is said that the net assets of the parties, excluding superannuation, are valued at in excess of $3.6 million, primarily comprising their investment properties, and the former matrimonial home. On 8 October 2019, interim orders were made by consent, inter alia, providing for the wife to have the sole use and occupation of the former matrimonial home, for each party to receive $50,000 from a bank account, for discovery, and restraining each party “from encumbering, divesting, selling or reducing their interest in or dealing with any asset standing in their name whether solely or jointly held with another person without each other’s written consent or order of the court or the normal course of business” (paragraph 2.d.). On 26 March 2020, the wife filed an Application in a Case seeking that by way of partial property settlement each party receive $120,000 from monies held in certain bank accounts, or alternatively that $120,000 be paid into her solicitor’s trust account pending further order, and the husband be restrained from “spending” the other $120,000. In his Response filed on 28 May 2020, the husband simply sought that the wife’s application be dismissed. They were the proceedings before the primary Judge, and in respect of which the interim order made by her Honour is the subject of the application for leave, and the appeal, if leave is granted.LEAVE TO APPEAL The test that is now applied in this Court is whether in all of the circumstances the decision complained of is attended by sufficient doubt as to warrant it being reconsidered, and whether substantial injustice will result if leave were refused, supposing the decision to be wrong.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit in this ground of appeal.CONCLUSION Having found no merit in any of the grounds of appeal, leave to appeal should not be granted. For completeness though I note that if there was some basis on which leave to appeal could be granted, the appeal would be dismissed as being without merit.COSTS In the event that the application for leave to appeal was dismissed, and/or the appeal was dismissed if leave was granted, the wife sought an order for costs calculated on an indemnity basis. The husband opposed any order for costs being made. This application raises two issues; first, whether an order for costs should be made; and secondly, if so, how should those costs be calculated, on the usual party/party basis, or on an indemnity basis. The first question is governed by s 117 of the Act which relevantly provides as follows:(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, 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), (4A), (5) and (6) 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 authorities are such that there only need be one justifying circumstance to found an order for costs (Fitzgerald v Fish (2005) 33 Fam LR 123), and here that is satisfied by the fact that the husband has been wholly unsuccessful in his application for leave to appeal (s 117(2A)(e)). It is noteworthy that the application for leave to appeal, and the appeal, have been found to be devoid of merit, and thus ought not to have been filed. As put by the wife in paragraph 28(e) of her summary of argument filed on 11 November 2020, the point of requiring leave is to “discourage endless interlocutory litigation and appeals that have the capacity to prolong family law litigation”.

Ratio Decidendi

Legal Principle Established

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