MERCIER & CALHOUN

[2018] FamCA 1024

FAMILY COURT OF AUSTRALIA

MERCIER & CALHOUN [2017] FamCA 1024

FAMILY LAW – COSTS – Interim Costs – Costs for and Application in a Case

Family Law Act 1075 (Cth)

APPLICANT: Mr Mercier

RESPONDENT: Ms Calhoun

FILE NUMBER: SYC 3053 Of 2018

DATE DELIVERED: 28 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: In Chambers, on the papers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Santo Family Lawyers

ADVOCATE FOR THE RESPONDENT: Mr Karras

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. The application for costs made by Mr Mercier on 11 September 2018 is dismissed.

2. Each party’s costs of the hearing giving rise to orders made 22 August 2018, together with any necessary legal work in preparation for same, are reserved to the final hearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3053 of 2018

Mr Mercier

Applicant

And

Ms Calhoun

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an application filed by Mr Mercier, the respondent to an Application in a Case brought by Ms Calhoun pursuant to an Application in a Case filed by her on 12 June 2018. That application was dismissed by me on 22 August 2018.

2. The orders I made on 22 August 2018 included the following:

   (1)Any application for costs of the hearing is to be made in writing within 21 days of the date hereof, accompanied by any affidavit in support and a written submission of no longer than two A4 pages. Each party is to respond to any application for costs made by the other within seven days of service of such application and the response is to be accompanied by any affidavit in support together with written submissions of no longer than two A4 pages. Any application for costs or response made to same, is to be accompanied by a copy of any offer of compromise made in relation to the applicant’s Amended Application in a Case determined by this order.

   (2)In the event of no application for costs being filed as required by order (2) hereof, then each party’s costs of the application are reserved to be determined by the trial judge should an application be pressed.

3. The application for costs was filed on 11 September 2018, which is within the time that I provided for in the order. The application was accompanied by an affidavit sworn by Mr Mercier on 11 September 2018. The application was also accompanied by submissions signed by senior counsel.

4. The applicant did not provide a copy of any offer of compromise which was served upon Ms Calhoun prior to the hearing.

5. The respondent to the application for costs, Ms Calhoun, filed a Response to the Application for costs on 19 September 2018. I accept that was filed within the time stipulated in my order. That response document is accompanied by written submission signed by the respondent’s solicitor. No copy of an offer of compromise accompanied the submission.

Background

1. In the judgment which I published on 22 August 2018 I said, inter alia, the following:

   The background facts to this dispute, as set out above, are, in my view and experience, quite extraordinary. The circumstance of the wealth of the respondent (including approximately $170 million in cash resources) and the applicant having an annual income of $656,947 for the 2018 financial year derived from an asset which may have a saleable value of up to $3 million, is an exceptional and probably extraordinary set of facts. Added to that circumstance, is a cohabitation which endured for either six and a half or five and a half years (depending upon which version of fact is ultimately accepted). The applicant seeks a property adjustment order which would require the respondent to pay her $40 million. The respondent, in the same case, seeks an order that he make no property adjustment payment to her.

2. The applicant for costs in this determination, Mr Mercier, has set out what he has spent in legal costs on the amended application he opposed, filed by Ms Calhoun on 12 June 2018. That evidence discloses he paid $44,608.79 in costs for the application which was determined by order made 22 August 2018.

3. The matters which the court is required to consider is contained in section 117(2A) as follows:

   (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

4. Mr Mercier submits that the strongest support for the making of an order is that Ms Calhoun was wholly unsuccessful. I accept that is a very strong basis for the court to order that his costs be paid on some basis.

5. The financial position of Mr Mercier is overwhelmingly better that that of Ms Calhoun. Ms Calhoun is a person of strong financial standing, as my earlier judgment outlined.

6. In relation to “the conduct of the parties” as referred to in the section above set out, I consider it a mark of the affluence of each party that they did not serve on each other any offer to settle the proceeding. Such a stance indicates to me that neither is concerned to any motivating level about what the costs might be. Such a position is clearly understood by each party’s solicitor, who I am sure hold written instructions not to make any offer of compromise/settlement to avoid the cost of a hearing such as that conducted by them on 30 July 2018.

7. In this case there were a number of matters that Mr Mercier could have put to Ms Calhoun to avoid the hearing on 30 July 2018. Those include that he would meet, in the first place, the cost of any single expert which the court might appoint. That he would meet the cost of a mediator should the parties agree to mediate their dispute. That in the event the matter required to proceed to a final hearing he would reconsider any request for him to pay an interim cost order or interim property order. Failure to make any such offer suggests an attitude which does not impress when asking for a discretion to be exercised by the court.

8. The vastly superior financial position of Mr Mercier and the fact that Ms Calhoun was wholly unsuccessful in her application may weigh against each other so as to be equal.

9. In the order I made on 22 August 2018 I thought I had signalled as strongly as a judge might reasonably do, that a costs application from either party would likely be unsuccessful. I did so by including the following in my order:

   In the event of no application for costs being filed as required by order (2) hereof, then each party’s costs of the application are reserved to be determined by the trial judge should an application be pressed.

10. This application for costs I accept has been made with written instruction from Mr Mercier and as a consequence, clearly, his solicitor and really had to act on same.

11. I propose to dismiss the application for costs and reserve same for determination by the trial judge. I conclude the parties in this case are “playing for high-stakes” and as such the costs of the determination made 22 August 2018 should be seen as akin to “costs in the cause” although no such concept really exists in this jurisdiction. The “high-stakes” are whether Ms Calhoun is ultimately judged to be entitled to an order for Mr Mercier to pay her $40 million as she seeks, or $Nil as he seeks. As I told the parties at the conclusion of the hearing before me, the law of probability must suggest neither will be successful.

12. For those reasons I make the order set out herein.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 September 2018.

Associate: 

Date:  28 September 2018