Mansour & Kaleel (No 3)
[2024] FedCFamC2F 552
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansour & Kaleel (No 3) [2024] FedCFamC2F 552
File number(s): PAC 5559 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding seeking costs – costs orders made. Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 19 April 2024 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
PAC 5559 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANSOUR
Applicant
AND: MS KALEEL
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.The wife shall pay to the husband the sum of $33,933 by way of legal costs on or before the expiration of four months from the date of these orders.
2.The husband shall pay to the wife the sum of $11,880 by way of legal costs on or before the expiration of four months from the date of these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of the husband’s application for costs made against the wife following final judgment in these binding financial agreement and property proceedings on 1 February 2024.
This is also the determination of the wife’s application for costs against the husband. In paragraph 7 of her affidavit filed 18 April 2024 she sought costs relating to the Court vacating an earlier final hearing date for the proceedings being 2 and 3 May 2023. On 24 April 2023, the Court vacated the hearing date for 2 and 3 May 2023 and appointed fresh hearing dates for 12 and 13 October 2023. Order 4 made on 24 April 2023 provided:
4.Leave is granted to the wife to make an application for costs thrown away, relating to the vacation of the 2 and 3 May 2023 hearing date, at the fresh hearing fixture on 12 and 13 October 2023.
The wife did not make an application for costs thrown away at the hearing fixture on 12 and 13 October 2023, but she does so now, and, in the view of the Court, she should be permitted to do so. The Court cannot discern any significant prejudice to the husband. In this regard, the Court observes that the husband, in his affidavit filed 27 February 2024, expressly referred to having fallen quite ill and having to have an urgent operation and treatment for other health issues, leading to him filing an Application in a Proceeding and supporting affidavit on 21 April 2023 seeking that the final hearing dates of 2 and 3 May 2023 be vacated.
The content of the husband’s application for costs against the wife is set out in his submissions on costs filed 19 April 2024, as well as in his affidavit filed 27 February 2024. He seeks costs as incurred of $100,950 or, alternatively, as per the schedule to his submissions on costs (such schedule calculated, the husband contends, in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Division 2 Rules”)) in the sum of $45,244. His proposed costs include costs relating to not only the final binding financial agreement and property hearing, but also in relation to the wife’s failed Application in a Proceeding filed 14 November 2023 (seeking leave of the Court to adduce fresh evidence in respect to the property hearing) and which was also determined on 1 February 2024.
The wife opposes the husband’s above application for costs.
The husband opposes the wife’s application for costs thrown away relating to the vacation of the previous final hearing date appointed for 2 and 3 May 2023. During oral submissions, the husband’s counsel submitted that the wife had failed to strictly comply with the Order 4 of the Court’s orders of 24 April 2023 in that she had failed to apply for costs thrown away at any time during the final hearing held on 12 and 13 October 2023. The Court does not accept this submission and the wife should be entitled presently to seek an order for costs thrown away.
The husband relied upon the documents set out on page 1 of his submissions on costs (including his affidavit filed 27 February 2024, 71 pages including annexures) together with his written submissions on costs.
The wife relied upon her affidavit filed 18 April 2024 (68 pages including annexures).
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings shall bear their own costs. Section 117(2) states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the Court considers just. Section 117(2A) provides that in considering what order, if any, should be made as to costs, the court shall have regard to the following matters:
(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 Court now turns to relevant matters that the Court should consider under section 117 (2A) of the Act.
As to the financial circumstances of each of the parties to the proceedings, s 117(2A)(a), the Court refers to its judgment of 1 February 2024 (as to the binding financial agreements issue and property adjustment), including its discussions under the headings, “Section 75(2) of the Act” and “Justice and equity”. As a result of the property adjustment orders, the wife will have financial capacity to meet a costs order sought by the husband, however the Court takes into account the husband’s greater earning capacity as discussed under “Section 75(2) of the Act”.
As to the parties’ conduct in the proceedings, s 117(2A)(c), there is nothing of particular relevance under this subheading, with the Court not accepting the contentions of the parties in their present affidavits (i.e. present affidavits for these costs applications) that there was relevant non-disclosure by a party. This issue of non-disclosure was raised at trial and no findings were made by the Court in its final judgment.
As to whether any party that to the proceedings has been wholly unsuccessful in the proceedings, s 117(2A)(e), the wife was wholly unsuccessful in relation to the binding financial agreements being set aside by the Court. She was also wholly unsuccessful in relation to her failed Application in a Proceeding filed 14 November 2023 (she had sought to adduce fresh evidence in respect to the property hearing). Her contention, at trial, that her contributions should be assessed at 90% was accepted by the Court in its final judgment, albeit that the Court had found that the 90% contributions finding in favour of the wife should apply only to the parties’ non-superannuation assets.
As to 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, s 117(2A)(f), the husband referred to various offers of settlement made by him to the wife from about early February 2022 to the first date of the hearing on 12 October 2023. He submits that from the final judgment of the Court it can be seen that all his offers contained cash offers significantly less than the Court’s final judgment orders.
The Court observes that the husband’s offers to the wife that he relies upon did not expressly refer to the binding financial agreements being set aside although the Court would accept that it was probably implicit in the husband’s offers to the wife that should the wife have accepted one of those offers those agreements would be set aside or effectively disregarded. This observation of the Court gains traction from the first sentence of paragraph 2 of the wife’s affidavit filed 18 April 2024 (page 5 of 68).
The Court observes that the husband’s offer of settlement of June 2022, made through his then solicitors, providing for the wife to pay the husband within 90 days the sum of $157,000 and in exchange the husband agreeing to transfer his interest in respect of the properties at City E and Suburb C, was fairly clear. The wife’s then solicitors responded to that offer in their letter of July 2022 effectively rejecting that offer having stated in that letter, inter alia, that the wife relied upon the terms of the financial agreement dated mid-2020, asserting numerous facts relating to the property at Suburb H, Suburb C and City E, and finally requesting the husband’s then solicitors to obtain the husband’s instructions in relation to the matters raised in their letter, and stating that thereafter they shall take the wife’s proper instructions “with a view to putting forward a settlement proposal to resolve the matter.”
The Court observes that the husband’s offer of July 2022 (see his email to the wife of that date) in the total sum of $96,000, and which the wife accepted on that date, was arguably not reflected in the later consent orders sent by the husband to the wife (see annexure 2a to the wife’s affidavit filed 18 April 2024) which not only referred to sums of $80,000, and $16,000, to effectively be paid to the husband by the wife, but also referred to a sum of $35,919 being effectively paid by the wife to the husband relating to his deposit monies for the City E property.
The Court observes that in the husband’s email to the wife of mid-2022 at 10.30 am he stated, “It’s not an agreement till we put it down on paper in a consent order not emails okay.”
The Court observes that in the wife’s email message to the husband of mid-2022 she stated, inter alia, that she stood by the July [2022] agreement relating to the wife paying the husband $80,000 with the husband to receive $16,000 from the solicitors’ trust account.
The Court observes that the husband’s offer of November 2022 (total sum to be paid by the wife to the husband being $126,000) refers to certain consent orders which have not been annexed to the husband’s affidavit filed 27 February 2024.
The Court observes that the husband’s offer of February 2023 in the total sum of $96,000 (see annexure J to his affidavit) merely states, without referring to the Suburb C and City E properties, “Are you willing to settle on $80,000 plus the release of the $16,000 from the trust fund and call it quits.”
Exhibit A at the costs hearing, was a written offer from the husband’s solicitors to the wife’s solicitors dated 6 October 2023, expressed as a Calderbank offer, providing, inter alia, for the sum of $35,919 to be paid by the wife to the husband within 14 days for all of the husband’s interests in the City E property; that the husband pay the wife the sum of $36,000 towards her legal costs; that the $16,000 in the trust account to be paid to the husband; that the husband surrenders in favour of the wife his one per cent interest in the Suburb C property; and that the wife pay any stamp duty or legal costs in relation to that property. This offer was not accepted by the wife albeit it was an offer made some six days before the final hearing.
The Court observes that the husband’s final offer on 12 October 2023, was in a total sum of $280,000 but was made on the first day of the trial.
As to, “such other matters the Court considers relevant”, s 117(2A)(g), in relation to the wife’s costs application, the Court observes that annexure 4a to the wife’s affidavit filed 18 April 2024 reproduces the wife’s then solicitors’ email to the husband of 20 April 2023, in which they state that they have been through the medical evidence (relied upon by the husband for his proposal to adjourn the trial date) and confirm that they neither support, nor object to his application for an adjournment. They refer to the hearing date being almost two weeks away. They note that they will have costs thrown away and they will seek those costs being in the sum of $10,800 plus GST, including professional fees for preparation for the hearing as well as briefing counsel, $8,800 plus GST, fees for counsel in preparation for the hearing and acceptance of the brief, $1,400 plus GST, printing and courier, $600 plus GST. The Court observes that this total sum of $11,880 ($10,800 plus GST of 10 per cent) appears to be the total costs to be invoiced by the solicitors to their client the wife.
The Court observes that the husband’s Application in a Proceeding was dated 21 April 2023 but was filed on 26 April 2023, being a relatively short period prior to the final hearing then due to commence on 2 May 2023. Whilst the husband’s illness and need for related medical treatment may have been unforeseen by him, it is difficult to see why, particularly when his application to the Court to adjourn the trial date was made only about two weeks prior to the trial commencing, the wife’s reasonable legal costs relating to the trial being vacated should simply be borne by her.
The Court takes into account its findings of fact from its final judgment (relating to the binding financial agreements aspect of the proceedings), in particular the adverse conduct by the wife prior to the binding financial agreements being executed by the parties.
Again, the Court refers to the separate judgment of the Court and accompanying reasons relating to the wife’s failed Application in a Proceeding seeking to reopen evidence from the final hearing.
On the material before the Court, having regard to the Court’s above discussions under section 117 (2A) of the Act, it will be just for the Court to order that the wife pay 75 per cent of the husband’s costs pursuant to Schedule 1 of the Division 2 Rules (total $45,244; see page 8 of the husband’s counsel’s submissions as to costs) in the sum of $33,933.
On the material before the Court, having regard to the Court’s above discussions under s 117(2A) of the Act, and taking into account the relevant items in Schedule 1 of the Division 2 Rules which the Court would have been prepared to allow, it will be just for the Court to order that the husband pay the wife’s costs thrown away in preparation for the vacated final hearing in the sum of $11,880.
As to the husband’s application for the costs of his costs application, having regard to the relevant principles discussed above, the Court is not satisfied that it would be just to make such an order.
Accordingly, the Court makes the following orders:
(1)The wife shall pay to the husband the sum of $33,933 by way of legal costs on or before the expiration of four months from the date of these orders.
(2)The husband shall pay to the wife the sum of $11,880 by way of legal costs on or before the expiration of four months from the date of these orders.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 7 May 2024
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