Min & Orton (No 2)
[2022] FedCFamC1F 302
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Min & Orton (No 2) [2022] FedCFamC1F 302
File number(s): SYC 1579 of 2021 Judgment of: REES J Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – COSTS – Husband to pay the wife’s costs. Legislation: Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Division: Division 1 First Instance Number of paragraphs: 12 Date of last submission/s: 9 May 2022 In Chambers: 10 May 2022 Place: Sydney Solicitor for the Applicant: Browns The Family Lawyers Solicitor for the Respondent: Clinch Long Woodbridge Lawyers ORDERS
SYC 1579 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MIN
Applicant
AND: MR ORTON
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS:
1.That the husband pay the wife’s costs of the application heard on 10 March 2022 as assessed or agreed, such costs to be paid within 28 days of assessment or agreement.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Min & Orton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 11 March 2022, I delivered reasons and made orders dismissing an application by Mr Orton (“the husband”) to rectify an agreement between himself and Ms Min (“the wife”) executed on 1 August 2013.
The wife now seeks an order that the husband pay her costs of the application on an indemnity basis or, in the alternate, on a party and party basis.
Each party has been given the opportunity to file evidence in relation to the issue of costs and to make written submissions.
The application falls to be determined according to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which are set out below:
(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.
The wife has modest means. She has an income of $323 per week from investments and, in addition, she receives a job seeker allowance. She owns an investment property which she estimates to be worth $550,000 and has about $198,000 in the bank.
The husband has an income of $6,644 per week and expenses of $2,322. He has net property in excess of $4,000,000.
Clearly, the husband’s financial position is significantly superior to that of the wife.
The only other part of s 117(2A) of the Act upon which the wife relied was that the husband was wholly unsuccessful in his application to rectify, and thus uphold, the agreement.
Those matters justify an order that the husband pay the wife’s costs. However, I am not persuaded that the costs should be paid on an indemnity basis.
When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 where his Honour reviewed the authorities and said:
4. …The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
It is not sufficient reason to award indemnity costs that one party has been wholly unsuccessful. I was not taken to any exceptional circumstances which merit the making of such an order.
The husband will pay the wife’s costs on a party and party basis as assessed or agreed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 10 May 2022
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