Masih & El Saeid (No. 2)

Case [2021] FamCA 292

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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Details
AGLC
Masih & El Saeid (No. 2) [2021] FamCA 292
Case
[2021] FamCA 292
Decision Date

CaseChat Overview and Summary

In *Masih & El Saeid (No. 2)*, Harper J of the Family Court of Australia considered applications for costs made by the applicant husband and by third parties (companies) sought to be joined by the respondent wife. The wife had sought to widen the asset pool by joining these third parties, but was wholly unsuccessful in these claims. The wife also withdrew an interim application for spousal maintenance and partial property settlement on the morning of a scheduled hearing, after the husband had prepared his evidence.

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

I am unable to form a view about these submissions. It can be assumed that any litigant for property adjustment orders under s 79 of the Act is motivated at some level by a perception of financial gain. But this is not necessarily a basis for criticism. Part VIII of the Act gives parties to a marriage rights to make claims in respect of assets and financial resources. Lack of success is taken into account specifically as a matter to be considered under s 117(2A)(c).Conclusion as to the Entities’ Costs Application The wife has made no argument to contest the third parties’ claims for costs. The considerable cost to which the entities were put in meeting the claims of the wife, and her entire lack of success justify making a costs order against her. The third parties seek costs on an indemnity basis. This raises additional matters for consideration, which I deal with later in these reasons.The Husband’s Costs Application Conduct of the Wife I repeat the statements of principle above at [50] to [55]. In his submissions, the husband focussed on the wife’s conduct in the proceedings. He specifically points to the fact that the wife amended the relief she sought on a number of occasions, specifically on 20 May 2016 and 31 October 2016. He points to the previous costs judgment of Aldridge J, which made comment on the amount of times the wife had changed her position, to suggest that this point should be given weight. In addition, the husband points to the fact that the wife failed to comply with orders made by consent on 8 August 2016, as she failed to provide the husband with details and copies of bank accounts, to provide answers to the questions raised in the letter from Cameron Gillingham Boyd to Husseni Lawyers on 7 October 2014, and particulars of all funds sent overseas from the date of marriage until the present time. Additionally, the husband claims the wife failed to provide a certified copy of her Bachelor degree. Although the husband provides a copy of these purported consent orders in his affidavit sworn 10 November 2020, a sealed copy of these orders does not appear on the file either electronically or physically. On 31 October 2016, just prior to the listing before Rees J on 7 November 2016, the wife filed an Amended Application in a Case seeking a range of orders. The husband’s point is that just before 7 November 2016 the wife had changed her case, and the orders she was seeking against the husband. As described above, the matter was listed for interim hearing before Rees J on 20 February 2017; however, on the morning of the hearing the wife abandoned her position without providing the husband with a reason. The husband argues that, notwithstanding this discontinuance, he was required to prepare for the interim hearing relating to spousal maintenance and partial property settlement. I am satisfied that because of the conduct of the wife the costs of and incidental to 7 November 2016 and 20 February 2017 were incurred by the husband unnecessarily, and clearly appear to have been wasted. The wife put on no material to suggest otherwise.

Ratio Decidendi

Legal Principle Established

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