Martin and Martin and Ors; (Costs)

[2012] FamCA 1017

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ORS
(COSTS) [2012] FamCA 1017

FAMILY LAW – COSTS ─ where no party can at this stage be regarded as having been wholly unsuccessful in the proceedings ─ where the outcome of the proceedings, and a judicial determination of competing claims with respect to costs, requires findings of fact which have not yet been able to be made ─ where the Court reserves the first and second intervenors costs of and incidental to the proceedings determined on an interlocutory basis on 17 October 2012 pending the determination of the husband and wife’s application “on the merits”

Family Law Act 1975 (Cth)

Lindon v Commonwealth(No 2) (1996) 136 ALR 25
Walton v Gardiner (1993) 177 CLR 378

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

FIRST INTERVENOR: X Firm

SECOND INTERVENOR: QF Pty Ltd

FILE NUMBER: MLC 9829 of 2007

DATE DELIVERED: 6 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney via video link with Melbourne

JUDGMENT OF: Coleman J

HEARING DATE: By way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT: Mr Puckey

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE FIRST INTERVENOR: Mr Brown SC with Mr McKillop

SOLICITOR FOR THE FIRST
INTERVENOR: Nedovic & Co Lawyers

COUNSEL FOR THE SECOND 
INTERVENOR: Mr Davis

SOLICITOR FOR THE SECOND
INTERVENOR: Hopkins Lawyers

Orders

1. That the costs of X Firm and QF Pty Ltd of and incidental to the interlocutory determination of the application of the husband and wife determined by the Court on 17 October 2012 be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY VIA VIDEO LINK WITH MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

First Intervenor

And

QF Pty Ltd

Second Intervenor

REASONS FOR JUDGMENT

COSTS

introduction

1. On 17 October 2012, for reasons which were then published, the Court declined to make orders in accordance with Minutes of Consent Order presented on behalf of the husband and wife. For reasons which the Court also then articulated, the application of the husband and wife for orders in terms of the minutes was not dismissed.

2. Pursuant to the Court’s directions, written submissions have been filed on behalf of X Firm and QF Pty Ltd. X Firm seeks an order for costs of the proceedings which were determined on an interlocutory basis on 17 October 2012. QF Pty Ltd “agrees” that its costs should be reserved until the final determination of the proceedings. In responding submissions filed on their behalf, the husband and wife oppose the making of costs orders against them.

3. The submissions on behalf of the wife assert, correctly, that no party can at this stage be regarded as having been wholly unsuccessful in the proceedings.

4. It was further, and again in the Court’s view correctly, submitted on behalf of the wife, that issues of the “conduct” of the parties in relation to the proceedings which are likely to have an impact upon the exercise of the Court’s discretion with respect to costs depend on findings in relation to disputed issues which the Court has not yet been able to hear and determine.

5. It is unnecessary to refer in detail to the Court’s reasons for judgment of 17 October 2012, save to reiterate that whilst not acceding to the application on behalf of the husband and wife, the Court did not dismiss it as “foredoomed to failure” (see Walton v Gardiner (1993) 177 CLR 378 and Lindon v Commonwealth(No 2) (1996) 136 ALR 25).

6. The outcome of the proceedings, and a judicial determination of competing claims with respect to costs, requires findings of fact which have not yet been able to be made.

7. It could not seriously be disputed, and the Court does not understand that Counsel for the wife or the husband does dispute, that if costs are ultimately to be awarded with respect to the interlocutory determination of 17 October 2012, in the absence of evidence, which has not yet been adduced or foreshadowed, being accepted on behalf of the husband and/or the wife, any such order could only be in favour of X Firm and/or QF Pty Ltd.

8. Apportionment of any entitlement to costs, the form and substance of any such orders, if considered to be justified in all the circumstances, would also be dependent upon findings of fact which the Court is presently unable to make.

9. Rather than simply reserve costs generally, in the circumstances articulated in the Court’s judgment of 17 October 2012 and these brief reasons suggest, the Court prefers to reserve X Firm and QF Pty Ltd’s costs of and incidental to the proceedings determined on an interlocutory basis on 17 October 2012 pending the determination of the husband and wife’s application “on the merits”.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 6 December 2012.

Associate:

Date: 06.12.2012