FAMILY COURT OF AUSTRALIA
Masih & El Saeid (No. 2) [2021] FamCA 292
File number(s): SYC 2986 of 2012 Judgment of: HARPER J Date of judgment: 12 May 2021 Date of corrigendum: 17 May 2021 Catchwords: FAMILY LAW – COSTS – Where the wife sought to join a number of third parties in attempt to widen the asset pool – Where the issue of the joinder was considered as a threshold issue – Where the wife was wholly unsuccessful in her claims regarding the third parties – Where the wife changed her points of claim on a number of occasions – Where the third parties sought indemnity costs – Turns on own facts.
FAMILY LAW – COSTS – Where the wife pressed interim applications for spousal maintenance and partial property settlement – Where the matter was listed for interim hearing – Where the husband put on his evidence – Where the wife withdrew her application the morning of the hearing – Where the husband sought indemnity costs – Turns on own facts.
Legislation: Family Law Act 1975 (Cth) ss106B, 117(2), 117(2A), 117(2A)(a), 117(2A)(c)
Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07,1.08
Cases cited: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26
Atkins & Hunt [2017] FamCAFC 131
B v J (2006) FLC 93-259
Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555
Bhatt & Acharya (Costs) [2017] FamCAFC 71
Cachia v Hanes (1994) 179 CLR 403
Company v Cussons Pty Limited (1993) 46 FCR 225
El Saeid & Masih and Ors [2015] FamCA 516
El Saeid & Masih and Ors [2019] FamCA 497
Harris & Dewell (No.2) [2018] FamCAFC 180
Kohan and Kohan [(1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Masih & El Saeid and Ors [2020] FamCA 238
Northern Territory v Sangare (2019) 265 CLR 164
Oshlack v Richmond River Council (1998) 193 CLR 72
Parke & Estate of the Late A Parke (2016) FLC 93–748
Paysen & Laukien (2020) FLC 93-960
Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) 49 Fam LR 197
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Number of paragraphs: 93 Date of last submission/s: 22 January 2021 Place: Sydney Solicitor for the First Applicant: Bruce Cameron Counsel for the Second Applicant: Peter Campton SC ORDERS
SYC 2986 of 2012 BETWEEN: MR A MASIH
First Applicant
MR B MASIH AS DIRECTOR OF E PTY LTD
Second Applicant
AND: MS EL SAEID
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1.Within 30 days:
(a)The Respondent Wife pay the Second, Third and Fourth Respondent’s (collectively the “third parties”) costs of and incidental to the proceedings on a solicitor/client basis, (less the costs order awarded in favour of the third parties in July 2015), with such costs to be fixed in the sum of $175,012.72;
(b)The Respondent…
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- AGLC
- Masih & El Saeid (No. 2) [2021] FamCA 292
- Case
- [2021] FamCA 292
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to award costs against the wife in favour of the third parties and the husband, and on what basis. Specifically, the court had to determine if the wife's conduct in the proceedings, including her unsuccessful attempts to join third parties and her withdrawal of interim applications, warranted an award of indemnity costs. The court also considered the wife's repeated amendments to her claims and her failure to comply with previous consent orders.
Harper J reasoned that the wife's lack of success in her claims against the third parties, coupled with the considerable costs they incurred, justified making a costs order against her. The court found that the husband had incurred costs unnecessarily due to the wife's conduct, including her late amendments to her case and her abandonment of the interim hearing without explanation. The court noted that the wife had not presented any material to contest these claims.
The court ordered that the respondent wife pay the third parties' costs on a solicitor/client basis, less a previous costs order, fixed at $175,012.72. Additionally, the wife was ordered to pay the applicant husband's costs on a solicitor/client basis for specific hearing dates, fixed at $16,674.
Orders
Orders of the court
SYC 2986 of 2012
BETWEEN:
MR A MASIH
First Applicant
MR B MASIH AS DIRECTOR OF E PTY LTD
Second Applicant
AND:
MS EL SAEID
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
12 MAY 2021
THE COURT ORDERS THAT:
1. Within 30 days:
(a) The Respondent Wife pay the Second, Third and Fourth Respondent’s (collectively the “third parties”) costs of and incidental to the proceedings on a solicitor/client basis, (less the costs order awarded in favour of the third parties in July 2015), with such costs to be fixed in the sum of $175,012.72;
(b) The Respondent Wife pay the Applicant Husband’s costs of and incidental to 7 November 2016 and 20 February 2017 on a solicitor/client basis with such costs fixed in the sum of $16,674.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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