Masih & El Saeid (No. 3)

Case [2021] FamCA 577

FAMILY COURT OF AUSTRALIA

Masih & El Saeid (No. 3) [2021] FamCA 577

File number(s): SYC 2986 of 2012
Judgment of: HARPER J
Date of judgment: 5 August 2021
Catchwords:

FAMILY LAW – COSTS – Where the wife put on no evidence and made no submissions about costs – Where the wife wholly unsuccessful at hearing of threshold financial issues – Where the wife made numerous amendments to points of claim occasioning wasted costs – Where husband sought indemnity costs – Where fixed sum reflecting party-party costs ordered – Where husband also sought costs of review hearing – Where wife breached court orders compelling husband to seek recovery orders for children – Party-party costs ordered – 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:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

El Saeid & Masih and Ors [2019] FamCA 497

Harris & Dewell (No. 2) [2018] FamCAFC 180

Masih & El Saeid (No. 2) [2021] FamCA 292

Masih & El Saeid [2019] FamCA 234.
Number of paragraphs: 66
Date of last submission/s: 22 January 2021
Place: Sydney
Solicitor for the First Applicant: Bruce Cameron

ORDERS

SYC 2986 of 2012
BETWEEN:

MR A MASIH
Applicant
AND:

MS EL SAEID

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1.That the Respondent Wife pay the Applicant Husband's costs of the threshold financial hearing quantified on a party-party basis at $160,000.

2.That that the Respondent Wife pay the Applicant Husband’s costs of and incidental to the Application for Review determined by Justice Rees on 16 June 2017 as agreed or assessed.

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).

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

REASONS FOR JUDGMENT

HARPER J:

INTRODUCTION

  1. The protracted proceedings between Mr A Masih (“the husband”) and Ms El Saeid (“the wife”) have a long and complex history in this Court, involving both parenting and financial disputes.  The relevant background is set in my earlier judgment concerning costs: Masih & El Saeid (No. 2) [2021] FamCA 292 (“the first costs judgment”). It is unnecessary to repeat the details here. This judgment should be read with the first costs judgment. It deals with applications for costs which were not the subject of the first costs judgment.

  2. On 11 December 2020, when both parties appeared, I ordered the husband to file written submissions specifying precisely the…

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Details
AGLC
Masih & El Saeid (No. 3) [2021] FamCA 577
Case
[2021] FamCA 577
Decision Date

CaseChat Overview and Summary

In *Masih & El Saeid (No. 3)*, Harper J of the Family Court of Australia considered applications for costs brought by the Applicant Husband against the Respondent Wife. The dispute concerned the costs of a final hearing on threshold financial issues, which had resulted in a judgment delivered by Loughnan J, and the costs of a prior review hearing determined by Justice Rees. The Husband sought indemnity costs for the review hearing and either a quantified sum or party-party costs for the threshold financial hearing.

The primary legal issues before the court were whether the Respondent Wife should be ordered to pay the Applicant Husband's costs of the threshold financial hearing and the review hearing, and on what basis those costs should be quantified. The court was required to determine the appropriate quantum and nature of the costs order, considering the Wife's lack of participation in the costs proceedings and her conduct during the litigation.

Harper J reasoned that the Wife had wholly failed at the threshold financial hearing and had made no submissions regarding costs, despite ample opportunity. The court noted that the Wife had also made numerous amendments to her points of claim, occasioning wasted costs. Furthermore, the Wife had breached court orders compelling the Husband to seek recovery orders for the children, leading to further costs for the Husband. Given the Wife's lack of evidence and submissions on costs, and her unsuccessful conduct, the court ordered the Wife to pay the Husband's costs of the threshold financial hearing on a party-party basis, quantified at $160,000. The court also ordered the Wife to pay the Husband's costs of and incidental to the Application for Review determined by Justice Rees, on a party-party basis, to be agreed or assessed.

Orders

Orders of the court

SYC 2986 of 2012

BETWEEN:

MR A MASIH

Applicant

AND:

MS EL SAEID

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 AUGUST 2021

THE COURT ORDERS THAT:

1. That the Respondent Wife pay the Applicant Husband's costs of the threshold financial hearing quantified on a party-party basis at $160,000.

2. That that the Respondent Wife pay the Applicant Husband’s costs of and incidental to the Application for Review determined by Justice Rees on 16 June 2017 as agreed or assessed.

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

The husband presses his Amended Application in a Case filed 23 August 2019 in relation to the costs of the final hearing heard between March 2018 and July 2019, ultimately resulting in a judgment delivered by Loughnan J on 25 July 2019: El Saeid & Masih and Ors [2019] FamCA 497 (“the threshold financial judgment”). In addition, he continues to press his Application in a Case filed 10 July 2017, relating to the costs of an appearance before Rees J in June 2017 (“the review judgment”). The first costs judgment did not deal with these applications for costs.ORDERS SOUGHT BY THE HUSBAND Pursuant to the amended Application in a Case dated 23 August 2019, the husband seeks the following orders; 1. That the Respondent Wife pay the Applicant Husband's costs of the threshold financial hearing quantified in the sum of $245,830.20.2. In the alternative, the Respondent Wife pay the Applicant Husband's costs:2.1 On a party-party basis, quantified at $160,000; or 2.2 On a party-party as agreed or in default as assessed.3. That the Respondent Wife pay to the Applicant Husband costs of and incidental to this cost application. In support of this application, the husband filed an affidavit on 21 August 2019, as well as written submissions which were filed on 19 December 2019. I note here that the file seems to suggest that a supplementary affidavit was filed by the husband in relation to this application on 30 October 2019. This affidavit is not listed in the email sent to Chambers on 22 December 2020 in relation to the material relied upon for each application, however was referred to in a separate email sent by the husband on 25 August 2020, in response to requests from Chambers for the parties to provide copies of all documents to be relied upon for the Application. In addition, it was clearly referenced in the husband’s written submissions filed 19 December 2019. As such, the husband’s affidavit filed 30 October 2020 has also been considered. Additionally, pursuant to the Application in a Case dated 10 July 2017, the husband seeks the following orders; 1.That the Respondent Wife pay the Applicant Husband’s costs of the Application for Review determined by Justice Rees on 16 June 2017 on an indemnity basis. 2.In the alternative, that the Respondent Wife pay the Applicant Husband’s costs of and incidental to the Application for Review determined by Justice Rees on 16 June 2017. In support of this application, the husband originally filed an affidavit upon which he still relies. In addition, he filed written submissions on 23 August 2017, which have been received into evidence. The wife responded to this application by way of written submissions filed on 25 July 2017, while she was represented. In those submissions, she makes it clear that she opposes any orders for costs being made. It was not made clear by her whether she continues to rely upon these submissions, but I will assume that she does.THE WIFE’S FAILURE TO PARTICIPATE As explained in the first costs judgment at [30] - [43], except to the extent already mentioned, the wife has not participated in opposing the applications for costs, including those the subject of this judgment, despite being given ample opportunity to do so. I consider it appropriate to determine the applications for costs the subject of this judgment in the absence of any material from the wife.THE LAW

Ratio Decidendi

Legal Principle Established

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