Millhouse and Mullens (No 2)

[2017] FamCA 230

FAMILY COURT OF AUSTRALIA

MILLHOUSE & MULLENS (NO. 2) [2017] FamCA 230

FAMILY LAW – COSTS – where the Respondent seeks costs in relation to an interim application – where such costs are sought on a party/party basis – where such costs are to be paid within 30 days of making of a final order in the property settlement proceedings. 

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

D & D (Costs) (No 2) (2010) FLC 93-435

APPLICANT: Ms Millhouse

RESPONDENT: Mr Mullens

FILE NUMBER: BRC 10196 of 2013

DATE DELIVERED: 13 April 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers on the papers following the receipt of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Hirst & Co (by way of written submissions filed on 24 March 2017)

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson Lawyers by way of written submissions filed on 24 February 2017

Orders

IT IS ORDERED THAT

1. Ms Millhouse pay Mr Mullens’ costs of and incidental to the Amended Application in a Case filed 4 August 2015 with such costs:

   (a)to be paid on a party/party basis in an amount agreed between Ms Millhouse and Mr Mullens within twenty-one (21) days of the date of this Order or, failing agreement as to quantum, as assessed on a party/party basis; and

   (b)to be paid within 30 days of either:

   (i)the making of a final order in the property settlement proceedings between Ms Millhouse and Mr Mullens;  or

   (ii)the final resolution by other means of the property settlement proceedings between Ms Millhouse and Mr Mullens.

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 Millhouse & Mullins (No 2) 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 BRISBANE

FILE NUMBER: BRC 10196 of 2013

Ms Millhouse

Applicant

And

Mr Mullens

Respondent

REASONS FOR JUDGMENT

1. On 27 January 2017 I made an order dismissing an Application in a Case prosecuted by Ms Millhouse. I also ordered that, in the event either party sought an order that the other pay the costs of and incidental to the Amended Application in a Case filed 4 August 2015, that party file and serve brief written submissions in support of such application for costs within 28 days.

2. The orders made on 27 January 2017 also provided the responding party with the opportunity to respond to any such application, via the provision of brief written submissions, provided that the written submissions in response were filed and served within 28 days after the submissions seeking an order for costs were filed and served.

3. Further, the applying party was given the right of reply, provided that any brief further written submissions were filed and served within a further 14 days of the filing and service of any response submissions.

Mr Mullens’ application for costs

1. Submissions in support of an order that Ms Millhouse pay Mr Mullens’ costs of and incidental to the Application in a Case filed 4 August 2015 on a party/party basis (in an amount agreed or, failing agreement, as taxed) were filed on behalf of Mr Mullens at 4:18 pm on 24 February 2017.

2. The submissions particularise the material relied upon. In addition to that which had been filed prior to the hearing of the interim application, Mr Mullens relies on the Reasons for Judgment published on 27 January 2017 and an affidavit by Mr K, filed 24 February 2017.

3. Submissions in opposition to the making of an order that Ms Millhouse pay Mr Mullens’ costs were filed on behalf of Ms Millhouse at 5:26 pm on 24 March 2017.

4. No submissions in reply have been filed on behalf of Mr Mullens.

Do the circumstances justify the making of an order as to costs as sought by Mr Mullens?

1. Section 117(1) of the Family Law Act 1975 (Cth) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[1] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.

   [1] Section 117(2) Family Law Act 1975 (Cth).

2. As was the case in determining the Amended Application in a Case, I proceed on the basis that Mr Mullens is in a position of relative financial strength vis-à-vis Ms Millhouse and that he has the capacity to meet his own litigation costs. There is nothing in the evidence he relies on to suggest that this position would be changed if he was unsuccessful in his application for an order for costs. No submission was made to this effect.

3. In any event, as properly conceded on behalf of Ms Millhouse, impecuniosity on the part of a party opposing the making of an order for costs is no bar to an order for costs being made where it is otherwise warranted.[2] That being the case, I am not persuaded that the mere fact of difference in the financial circumstances of the parties (even if significant) leads inexorably to the conclusion that any order requiring Ms Millhouse to pay Mr Mullens’ costs of and incidental to the Application in a Case would be unjust.

   [2]           See, for example, D & D (Costs) (No 2) (2010) FLC 93-435.

4. Neither party was in receipt of Legal Aid.

5. I am not persuaded that there is anything in the conduct of the parties to the proceedings in relation to the proceedings to persuade that the circumstances justify the making of an order departing from the starting point established by s 117(1) of the Act. Similarly, I am not persuaded that there is anything before me to establish that the proceedings prosecuted by Ms Millhouse were necessitated by Mr Mullens’ failure to comply with previous orders of the Court.

6. There is nothing to suggest that either party made an offer in writing to the other to settle the proceedings commenced by the Application in a Case (as subsequently amended). However, it is relevant, in my opinion, to note that, via correspondence dated 25 June 2015, Mr Mullens put Ms Millhouse on notice of his intention to resist an application and informed her that, if she proceeded with the same, he would oppose the making of orders and seek an order for costs. It cannot be thought, therefore, that Ms Millhouse was left in any doubt about the positon Mr Mullens would adopt if she decided to prosecute an interlocutory application of the nature ultimately prosecuted.

7. I take into account that Mr Mullens was wholly successful in his resistance to the making of any of the orders sought by Ms Millhouse. In doing so, I do not accept that such success of itself is necessarily productive of an order for costs because to do so would, in my view, mean that the Court was improperly distracted from a proper consideration of the other matters enunciated in s 117(2A) of the Act.

8. On balance and in the broad exercise of discretion accorded to the Court in determining applications for costs, I am persuaded by the combination of the notice given by Mr Mullens to Ms Millhouse[3] and the fact that she was wholly unsuccessful in her attempt to obtain the relief sought by the Amended Application in a Case that the circumstances justify the making of an order for costs.

   [3]          As referred to above.

What are the just terms of the order for costs?

1. I have been persuaded by the submissions advanced on behalf of Ms Millhouse that it is just that her obligation to pay the costs I have determined as justified in the circumstances be crystallised (in a sense) after the conclusion of the litigation between the parties.

2. I have reached this conclusion because of my acceptance of the submission about the potential impact on her capacity to fund her participation in the property settlement proceedings litigation on an ongoing basis if she were to be required to pay Mr Mullens’ costs[4] before the conclusion of the property settlement proceedings between the parties.

   [4]          Of and incidental to the Application in a Case the subject of discussion.

3. Whilst I have, therefore, concluded that justice requires that Ms Millhouse not be required to pay Mr Mullens’ cost until within a specified period of time after the substantive proceedings between the parties have been finalised, I am not persuaded that the possibility of agreement about the quantum of the same or, in the event of disagreement about this, assessment of the quantum in the manner provided for by the Family Law Rules (2004) should await such resolution.

4. Consequently, I consider it just that the parties be afforded a period of twenty-one (21) days within which to agree the quantum of the costs which Ms Millhouse is to pay to Mr Mullens and, in the event that agreement about this is not reached, then Mr Mullens should be at liberty to commence the assessment process.

5. In my view, given the manner in which Mr Mullens’ application for a costs order has been made and his success in obtaining the same, it is just that the determination of the quantum of the costs of and incidental to the Application in Case also include the costs associated with Mr Mullens’ successful application for the order for costs made today.

6. For these short reasons, then, I make orders in the terms outlined at the commencement of these Reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 April 2017.

Associate:                 

Date:    13 April 2017