Massalski & Riley (No 2)

Case [2021] FamCAFC 152

FAMILY COURT OF AUSTRALIA

Massalski & Riley (No. 2) [2021] FamCAFC 152

Appeal from: Massalski & Riley [2019] FamCA 1013
Appeal number(s): EAA of 14 of 2020
File number(s): SYC 496 of 2015
Judgment of: RYAN, ALDRIDGE & WATTS JJ
Date of judgment: 19 August 2021
Catchwords: FAMILY LAW – APPEAL – COSTS – Party/party costs – Where the wife was wholly unsuccessful in the appeal – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB, ss 79A, 90SF, 117

Family Law Rules 2004 (Cth) Sch 3

Cases cited:

Buckley & Buckley [2013] FamCAFC 150

Dickson and Dickson (1999) FLC 92-857; [1999] FamCA 768

Duff and Duff (1977) FLC 90-217; [1977] FamCA 24

Massalski & Riley [2019] FamCA 1013

Massalski & Riley [2021] FamCAFC 116

Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Division: Appeal Division
Number of paragraphs: 25
Date of hearing: By way of written submissions
Place: In Chambers
The Appellant: Litigant in person
Solicitor for the Respondent: Russell C Byrnes Solicitor

ORDERS

EAA of 14 of 2020
SYC 496 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS MASSALSKI

Appellant
AND:

MR RILEY

Respondent

ORDER MADE BY:

RYAN, ALDRIDGE & WATTS JJ

DATE OF ORDER:

19 AUGUST 2021

THE COURT ORDERS THAT:

1.The appellant wife pay the respondent husband’s costs of the appeal fixed in the amount of $30,000 within twenty-eight (28) days.

2.The appellant wife’s application for costs of and in relation to the appeal be dismissed.

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 Massalski & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RYAN, ALDRIDGE & WATTS JJ:

INTRODUCTION

  1. On 13 July 2021, this Court dismissed an appeal by Ms Massalski (“the wife”) from property settlement and related orders made on 24 December 2019. Mr Riley (“the husband”) seeks his costs of resisting the unsuccessful appeal. The wife opposes the husband’s application for costs and, it would seem, seeks that the husband pays her costs of the appeal. At paragraph 13 of the wife’s costs submissions filed by leave on 12 August 2021, the wife explains her position thus:

    13.[The wife] seeks an order that [the husband’s] application for costs be dismissed, and an order be made that [the husband] pays [the wife’s] costs of this appeal, according to the application made on 28 Oct 2020, or alternatively, that the [the wife] be allowed to re-submit her application…

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AGLC
Massalski & Riley (No 2) [2021] FamCAFC 152
Case
[2021] FamCAFC 152
Decision Date

CaseChat Overview and Summary

In the Appeal Division of the Family Court of Australia, the case of Massalski & Riley (No 2) involved an appeal by the wife, Ms Massalski, against the decisions made in the original proceedings between her and Mr Riley. The appeal focused on various aspects of the family law case, including property settlement and costs. The central issue was the allocation of costs between the parties, particularly in light of the wife's unsuccessful appeal.

The court was required to determine whether the wife's unsuccessful appeal justified an award of costs in favor of the husband. The legal issues involved assessing the factors set out in section 117(2A) of the Family Law Act 1975 (Cth) to decide if the wife's lack of success warranted an order for costs against her. Additionally, the court needed to determine the appropriate quantum of costs, considering the complexity of the appeal and the necessity of detailed submissions by the husband's legal representatives.

The court found that the wife's unsuccessful appeal justified an award of costs in favor of the husband. The court considered the volume of material filed in the appeal, the misstatements in the wife's submissions, and the necessity for the husband's representatives to undertake an intricate review of the trial record. The court deemed the husband's costs as party/party costs and fixed them at $30,000, considering the comparable legal expenses incurred by both parties. The wife's application for costs was dismissed as she had not succeeded in the appeal, and her arguments for costs did not meet the required threshold.

The court ordered that the wife pay the husband's costs of the appeal in the fixed amount of $30,000 within 28 days. The wife's application for her own costs was dismissed.

Orders

Orders of the court

EAA of 14 of 2020

SYC 496 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS MASSALSKI

Appellant

AND:

MR RILEY

Respondent

ORDER MADE BY:

RYAN, ALDRIDGE & WATTS JJ

DATE OF ORDER:

19 AUGUST 2021

THE COURT ORDERS THAT:

1. The appellant wife pay the respondent husband’s costs of the appeal fixed in the amount of $30,000 within twenty-eight (28) days.

2. The appellant wife’s application for costs of and in relation to the appeal be dismissed.

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 effect of these matters is that none of the other matters which the wife submits are relevant to whether an order for costs should be made in favour of the husband withstand even gentle scrutiny and they are plainly irrelevant.Conclusion on the husband’s application The wife’s lack of success in the appeal justifies an award of costs in favour of the husband. He has incurred legal costs unnecessarily and the circumstances amply justify departure from the provision that a party to proceedings under the Act should bear his or her costs. As to the quantum of the husband’s costs, we agree that it is appropriate that his costs are fixed and this issue is brought to a close so that it does not become another piece of satellite litigation. When regard is had to the large volume of material filed in the appeal, the challenges made by the wife to the trial reasons which, as we said in our principal judgment, too often misstated what had occurred, it was necessary for those appearing for the husband to undertake an intricate review of the trial record and provide highly detailed submissions. It was plainly necessary and easily comes within the realm of party/party costs. Furthermore, the wife’s claim for costs provides some guidance as to the reasonableness of the amount sought by the husband. Taking into account the fact that the husband’s costs include the costs of appearances on the appeal, it can be seen that there is a broad comparability of their legal expenses incurred prior to the appeal hearing. As to the wife’s complaint that the husband has failed to give a copy of his cost agreement this does not advance her position. It was only necessary for him to do so if he sought indemnity costs, which he does not. Finally, the wife’s submission that the husband “has engaged silk in an ‘essentially straightforward’ matter” (Wife’s Costs Submissions filed 12 August 2021, paragraph 21) is risible. Although this should have been a relatively straightforward de facto property case, the nature and breadth of the arguments discussed in the trial reasons and in the appeal which emanated from the wife made it anything but and more than justify the husband’s decision to retain senior counsel. It is our assessment that the husband’s party/party costs should be fixed in the amount of $30,000. The wife will be ordered to pay this amount within 28 days.THE WIFE’S APPLICATION FOR COSTS The wife’s application for costs filed on 28 October 2020 proceeded on the assumption that she would succeed in the appeal in every respect which has not happened. The only other justification for an award of her costs in her favour is said to be:21.The case was prolonged and complicated by [the husband], acting in disregard of the interim Family Court orders. The final judgment contained errors that were the effect of denial of the contributions of [the wife], made without proper legal basis.22. [The wife] contends that by making false statements and misleading submissions, [the husband] disentitled himself from seeking costs orders in this appeal.23. [The wife] asks for the costs to be granted on the basis that 50% of the costs incurred on preparing the appeal, was related to the decision related to the matter transferred from Victoria, which was affected by the false evidence and misleading submissions and this conduct was in breach of the overarching obligations. The remaining 50% to be considered as costs related to the errors made by the trial judge. (Wife’s Application for Costs filed 28 October 2020)

Ratio Decidendi

Legal Principle Established

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