Mena and Mena and Anor

[2013] FamCA 915

FAMILY COURT OF AUSTRALIA

MENA & MENA & ANOR [2013] FamCA 915

FAMILY LAW – Costs

APPLICANT: Ms Mena

FIRST RESPONDENT: Mr Mena

SECOND RESPONDENT: Ms Mena Snr

FILE NUMBER: (P)NCC 2997 of 2010

DATE DELIVERED: 11 February 2013
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE FIRST RESPONDENT: MRM Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Levick

SOLICITOR FOR THE SECOND RESPONDENT: Burgess Lawyers

Orders

1. Pending the determination of the Wife’s Appeal filed 2 January 2013:

   (a)That Orders 3 and 6 of the Orders of 12 December 2012 are stayed for a period of 42 days from today.

   (b)That apart from compliance with the Orders of 12 December 2012 and these Orders, the First Respondent Husband be restrained from dealing with or further encumbering, without the Applicant Wife’s written consent, such consent not to be unreasonably withheld, the properties at D Street, H Town.     

2. As to the Wife’s Application for a stay there be no order as to costs.

IT IS FURTHER ORDERED:

1. That the Second Respondent Ms Mena Snr shall pay to the Applicant Ms Mena 20 per cent of the Applicant’s costs of the final hearing on a party/party basis as agreed or assessed.

2. I make orders in accordance with a document titled Terms of Settlement by Consent in accordance with paragraphs 1 and 2 of that document.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mena & Mena and Anor 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 NEWCASTLE

FILE NUMBER: NCC 2997 of 2010

Ms Mena

Applicant

And

Mr Mena

First Respondent

And

Ms Mena Snr

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the applicant Ms Mena, the applicant in the principal proceedings.  Counsel have made submissions and counsel for the applicant quite rightly raises the fact that the usual rule is that each party pay their own costs unless there are circumstances which justify the payments of costs.  This rule reflects the reality of the Court that parties to proceedings in this Court are almost always partners to a marriage or now partners to a de facto relationship.

2. These circumstances are a little different.  The application is made by the applicant in the proceedings against her former mother-in-law who was the second respondent in the proceedings.  The circumstance of that intervention was that the orders sought by the second respondent were that debts said to be outstanding by her son together with interest which, given the period of time, accumulated to a very significant amount, be paid to her.  The intervener was unsuccessful in her application and in particular, unsuccessful in establishing through these proceedings that those debts, and accumulated interest, should be repaid.

3. The submission is made that nothing would have been different had the intervener not intervened.  I do not accept that submission.  There had to be the separate representation of the second respondent’s position and whilst I accept that it was of reasonably short compass, there was cross-examination of the wife on behalf of the second respondent, as well as on behalf of the husband.  I also accept that it was a considered decision taken by the second respondent to intervene in the proceedings between the parties.  This is not a case where there were proceedings contemplated in another jurisdiction and then sought to be joined to these.

4. I do think that to some extent, although not by days, the proceedings were protracted by the intervention.  I also consider that the second respondent was entirely unsuccessful, especially in considering that the question of the interest was never withdrawn as part of the second respondent’s case.

5. I am told there were no offers of settlement either way and that is a matter of some significance.  However, I do consider it is appropriate for a costs order to some extent to be made. 

6. The applicant seeks that an order for 50 per cent of her costs be paid by the second respondent.  I reject that proposal as clearly disproportionate.  However, the applicant has had to respond to the intervention and as I said, the proceedings were somewhat protracted by that matter and indeed, was an issue on which all parties submitted as some length, which was reflected in the first 38 paragraphs of the judgment.

7. On that basis, rather than 50 per cent of the wife’s costs, I consider that it would be appropriate for the intervener to pay 20 per cent of the applicant’s costs on a party/party basis as agreed or assessed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 February 2013.

Associate: 

Date:  14 March 2013