Marks and Spencer

[2011] FamCA 372

FAMILY COURT OF AUSTRALIA

MARKS & SPENCER [2011] FamCA 372

FAMILY LAW - COSTS – separate applications made by the wife and the husband - relevant legal principles - relevant matters

Family Law Act 1975 (Cth): ss117(1) and 117(2A)

Penfold v Penfold (1980) FLC 90-800

APPLICANT: Ms Marks

RESPONDENT: Mr Spencer

FILE NUMBER: SYC 2429 of 2010

DATE DELIVERED: 5 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 5 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: B Richards

SOLICITOR FOR THE RESPONDENT: Paltos Briggs

Orders

Wife’s application for costs

1. That the husband pay the wife’s costs of and incidental to one day’s hearing, namely 7 February 2011 as assessed and agreed upon or failing agreement as taxed.

2. That the balance of the wife’s application for costs is dismissed.

Husband’s oral application for costs

1. That the wife pay the husband’s costs of and incidental to the hearing of the wife’s application for costs on 5 May 2011 as assessed and agreed upon or failing agreement as taxed.

IT IS NOTED that publication of this judgment under the pseudonym Marks & Spencer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2429 of 2010

Ms Marks

Applicant

And

Mr Spencer

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings the wife seeks an order for costs against the husband in relation to the following:

   (a)      the husband’s Application in a Case filed 20 September 2010;

   (b)      the subsequent Amended Response filed on her behalf;

   (c)the ultimate interim hearing which took place on 27 January, 7 and 8 February 2011;

   (d)as well as, implicitly, the written submissions that were lodged on behalf of each of the parties.

2. Section 117(1) of the Family Law Act (“the Act”) provides the general principle that each party to proceedings in this jurisdiction bears his or her own costs. That general principle is subject to the discretion to make an order for costs in the event that a circumstance has been established which makes it proper to do so and also after taking into account relevant matters pursuant to s 117(2A) of the Act. The leading authority in relation to the Court’s power to make an order for costs is the High Court’s judgment in Penfold[1].

   [1] Penfold v Penfold (1980) FLC 90-800

3. The solicitor for the wife submitted that a circumstance has been established which may make it proper for an order for costs to be made.  It is contended, on behalf of the wife, that the husband was unsuccessful in relation to the order that he sought for immediate sale of the former matrimonial home and, in the alternative, that the wife pay the outgoings in relation to the former matrimonial home.  So far as those issues were concerned, they would result in favour of the wife as appears from the judgment given on 11 March 2011.

4. In addition, it is submitted that the hearing time was unnecessarily extended due to the adjournment that was provided on the application of the husband so that he might have an opportunity to file and rely upon an affidavit to be sworn by his partner in circumstances in which I was informed that on the very day of the date set down for hearing namely, 27 January 2011, the husband’s partner had resigned from her employment.

5. Apparently, an affidavit was subsequently sworn by the husband’s partner and filed but ultimately not relied upon by counsel for the husband on the resumption of the hearing on 7 February 2011.

6. The adjournment was also ordered to enable the wife, through her legal representatives, to issue a subpoena to produce documents directed to the employer of the husband’s partner.

7. In relation to the loss of the day, so far as additional costs are concerned, that is not an issue which is opposed by counsel for the husband.

8. Consequently, I do not consider it necessary to minutely consider all of the relevant matters pursuant to s 117(2A) so far as those costs are concerned.

Conclusion

1. I have made findings as to the comparative financial resources of the parties.

2. Clearly, the husband is in a stronger financial position than the wife, having regard to the level of his salary and potential annual bonus.  Those matters, together with the adjournment granted on the husband’s application, lead me to conclude that it is proper to make an order for costs for one day.  That day could have been avoided in terms of an adjournment had the matter completed on the first day.  There was sufficient time to enable that to occur.

3. So far as the balance of the proceedings are concerned, I am not persuaded that the circumstance has been established which would enable consideration of the exercise of discretion for an order for costs, having regard also to relevant matters under s 117(2A).

4. While it is undoubtedly correct that the husband was unsuccessful in relation to his application for sale of the former matrimonial home and, in the alternative, that the wife pay the outgoings associated with it.

5. The wife, for her part, was also unsuccessful in relation to the orders that she sought for payment of a lump sum and other ancillary orders.

6. As a result, I have concluded that the general principle that each party bears his or her own costs applies in these proceedings, so far as the balance of the proceedings determined by me on 11 March 2011 are concerned.

Husband’s oral application for costs

1. An oral application is made on behalf of the husband for an order for costs against the wife in the relation to the hearing of her application for costs determined by me earlier today.  I am persuaded that there is a circumstance which may make an order for costs proper in that, by email dated 29 April 2011, the husband’s solicitors informed the solicitors for the wife that their client would pay the costs incurred by her on 7 February 2011 as agreed or taxed.  That offer is identical to the substance of the order for costs that I have made.  In addition, the solicitors for the wife were put on notice that a copy of the email would be tendered in support of an application for costs.  I have accepted the tender of that letter which will be marked Exhibit 1.

2. In terms of other relevant matters that arise under s 117(2A) the comparative strength of the parties’ financial circumstances clearly favours the husband.

3. In relation to the conduct of the proceedings, the offer that was made was reasonable in the circumstances.

4. Whilst the wife had a pending application for costs in respect of which submissions of substance were made, nonetheless it was a case in which submissions to the contrary could clearly have been made also with some substance.  As a result there was a significant risk in relation to costs in proceeding with the matter this morning.

Conclusion

1. I have concluded that an order for costs will be made in favour of the husband in relation to the hearing of the wife’s contested application for costs today.

2. Exhibit 1 in its terms is identical to the substance of the order previously made by me today.  In addition, the wife, through her solicitors, was put on notice that the email offer was to be tendered.  In fact that occurred.

3. Those matters, in my view, attract greater weight than the imbalance of the parties’ financial circumstances, notwithstanding that I have taken that matter into account.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 5 May 2011.

Associate: 

Date:  24 May 2011