Moorcroft & Moorcroft
[2017] FamCAFC 147
•21 July 2017
FAMILY COURT OF AUSTRALIA
| MOORCROFT & MOORCROFT | [2017] FamCAFC 147 |
| FAMILY LAW – APPEAL – COSTS – costs of a discontinued appeal – where the appeal lacked merit – where the appeal was futile in circumstances where the trial of the matter had commenced – where costs awarded in a fixed sum. |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) |
| Fahmi and Fahmi (1995) FLC 92-637 Kohan & Kohan (1993) FLC 93-340 Parke v The Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Stoian & Fiening [2014] FamCA 944 |
| APPELLANT: | Mr Moorcroft |
| RESPONDENT: | Ms Moorcroft |
| FILE NUMBER: | BRC | 5266 | of | 2012 |
| APPEAL NUMBER: | NA | 57 | of | 2016 |
| DATE DELIVERED: | 21 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 21 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2652 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr George |
| SOLICITOR FOR THE APPELLANT: | Keyworth Harris & Lowe |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Stewart Family Law |
Orders
The appellant husband pay the respondent wife’s costs of and incidental to the appeal proceedings fixed in the sum of $10,000.
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 Moorcroft & Moorcroft 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 57 of 2016
File Number: BRC 5266 of 2012
| Mr Moorcroft |
Appellant
And
| Ms Moorcroft |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
KENT J
Listed for hearing today was the application for leave to appeal of Mr Moorcroft (“the husband”) from interim orders made in property settlement proceedings by Judge Coates in the Federal Circuit Court on 1 August 2016 and, if leave was granted, the appeal. However, very recently on 18 July 2017, the husband discontinued his appeal proceedings by filing a Notice of Discontinuance of them. Ms Moorcroft (“the wife”) who resisted the application and the appeal seeks an order for costs as contemplated by r 22.42 of the Family Law Rules 2004 (Cth) (“the Rules”) consequent upon the husband’s discontinuance of the appeal proceedings. The wife seeks an order for costs on an indemnity basis rather than the usual party and party basis for costs and moreover she seeks that costs be fixed in an adjusted sum approximating $12,000, rather than the cost being assessed.
On behalf of the husband, it is conceded that an order on a party and party basis would be irresistible but the husband opposes costs being fixed on an indemnity basis. The wife relies upon the affidavit of her solicitor filed on the 19 July 2017 to support the order sought by her on an indemnity basis together with a schedule admitted as Exhibit 1 as a point of comparison and, in the alternative, costs on a party and party basis as per Exhibit 1.
By the subject interim orders, made on the Application in a Case of the wife, the wife was appointed trustee for sale of the former matrimonial home at A Street, Suburb N (“the A Street property”). The orders also provided for the wife to have sole use and occupancy of that property pending its sale. We were informed from the bar table, without contest on behalf of the husband, that notwithstanding that the orders included an order for the wife to have sole use and occupancy of the home pending its sale, that has not in fact occurred in the context of these appeal proceedings. The subject orders also provided that after payment from the sale proceeds of sale costs and debts encumbering the A Street property, any balance was to be held upon trust for the parties, until further order. An order was also made for the husband to pay the wife’s costs of the application, fixed in the amount of $9,436.
Remarkably, as it seems to me, the husband pursued his application for leave to appeal notwithstanding that the trial of the substantive property settlement proceedings between the parties commenced before Judge Coates on 3 January 2017 and the trial stands adjourned part-heard to be resumed, we are told this morning, shortly.
In circumstances where the property proceedings have advanced to a final trial before Judge Coates, which has commenced and is part-heard, this appeal, if leave had been granted, appeared to lack any utility whatsoever, beyond the challenge to the costs order. An application by the husband for a stay of the subject order was heard by Judge Coates on 26 August 2016 and judgment on that application was, and apparently remains, reserved. However, that application would also appear to have been overtaken by events, that is, a final trial of the property proceedings having commenced.
In my judgment the husband’s application for leave to appeal was doomed to fail. The combined effect of
a)the apparent lack of any substantial utility in the appeal, if leave were to be granted; and
b)the relevant procedural history, including orders made, in the proceedings up until the subject orders were made on 1 August 2016; and
c)the fundamental misconception of that history, and distortions as to the application dealt with by the primary judge on 1 August 2016, upon which the husband founded his application for leave, and the appeal itself;
results in the husband being doomed to fail in demonstrating either that the primary judge’s decision was attended by sufficient doubt to warrant its reconsideration, or that a substantial injustice would result if leave had been refused.
Relevant history and previous orders
The wife commenced parenting and property settlement proceedings in 2012.
The proceedings were initially listed for a trial in the Federal Circuit Court for two days commencing 20 November 2014. For reasons not apparent on the record, the matter was not reached on that day and the trial was adjourned until September 2015.
On 21 November 2014 final orders were made by consent in respect of the parenting arrangements for the parties’ four children.
Also on 21 November 2014, interim property settlement orders were made by consent. Relevantly, those consent orders included the following:
29. That the husband do all such acts and things, and sign all such documents as may be required to (if possible) secure the discharge of the joint loans secured against the property at [A Street, Suburb N (“A Street”)], being more particularly:
a) CBA Loan number [02];
b) CBA Loan number [-02];
c) CBA Loan number [05];
(collectively “the home loans”).
30.That the wife shall sign all such documents, and provide all such information as may be required and/or requested by CBA, to facilitate the discharge of the home loans.
31. That in the event that the husband is successful in securing the approval of CBA for the discharge of the home loans:
a) The wife do all such acts and things, and sign all such documents as may be required to transfer to the husband, at the expense of the husband, all of the right, title and interest in the property at [A Street] (“the transfer”);
b) Contemporaneously with the transfer, the husband do all such acts and things and sign all such documents as may be required to discharge the home loans.
32. That unless otherwise agreed, in the event that either:
a) By no less than two (2) months prior to the final hearing, the husband has not received approval from the CBA as to the discharge of the home loans; and/or
b)The home loans (or any of them) fall into more than three months arrears; and
c) Then [A Street] and the property at [X Street, Suburb C (“X Street”)] be placed on the market for sale on such terms and condition as may be agreed between the parties (“the sale”).
33. That pending the transfer or sale:
a)The husband have the sole use and occupation of [A Street];
b)The Husband be solely liable for and indemnify the Wife with respect to the interest only payments of the home loans;
c)The husband be solely liable for and indemnify the wife with respect to any other apportionable outgoings of [A Street];
d)Each party hold their interest on trust pursuant to these orders.
34.That in the event that the [A Street] property is sold (whether by
agreement or pursuant to these Orders) the proceeds of sale of [A Street] be applied as follows:
a)To pay the costs and commissions of sale; and
b)To discharge the home loans, in accordance with the directions of CBA
35. That in the event that the [X Street] property is sold (whether by agreement or pursuant to these Orders) that the proceeds of sale of [X Street] be applied as follows:
a) To pay the costs and commissions of sale;
b) To discharge the home loan secured against [X Street] and any other encumbrance affecting the property; and
c) The balance to be applied to reduce any amount owing on the home loans.
It needs to be emphasised that it was the above orders made on 21 November 2014, and in particular Order (35) of those orders concerning the sale of the X Street property, that was the central focus of the wife’s Application in a Case heard and determined by the primary judge on 1 August 2016.
That emphasis is necessary because in both the course of the hearing before the primary judge, and repeated in the facts relied on in support of the application for leave before this Court, the husband and/or his legal representatives sought to portray that it was an earlier order made on 7 November 2013 upon which the wife relied in the subject application. Orders (3) and (4) of the orders made on 7 November 2013 were orders for, respectively, sale of the real property at X Street, Suburb C (“the X Street property”) and directed the disbursement of sale proceeds. By a subsequent order, made by consent of the parties on 5 June 2014, Orders (3) and (4) were discharged. While the consent order of 5 June 2014 expressed “that Orders 3 and 4 of Orders dated 7 November 2014 be discharged” (emphasis added), the application of a modicum of common sense by any sensible reader of the 5 June 2014 orders would yield the conclusion that the reference in that order to “2014”, and not 2013, is an obvious typographical error.
In the hearing below the husband’s solicitor who appeared for him on the application sought to focus upon Orders (3) and (4) of the 7 November 2013 order and the fact that these orders were discharged. The solicitor also sought to focus upon an order made on 23 April 2015 (amended on 25 June 2015) which discharged Orders (57) to (65) (inclusive) of the orders of 21 November 2014. However, Orders (57) to (65) (inclusive) comprised only procedural orders or directions to advance the property proceedings to a trial. The operative effect of Orders (29) to (35) (inclusive) earlier quoted was unaffected by the discharge of those procedural orders.
That it was Orders (29) to (35) (inclusive), and Order (35) in particular, of the 21 November 2014 orders that were the focus of the proceedings and hearing below (and not the earlier order of 7 November 2013) is plain from the “Outline of the Wife’s Case” relied upon by the wife for that hearing. It identifies the order made on 21 November 2014 as part of the material relied upon by the wife. Moreover, a reading of the transcript of the hearing on 1 August 2016 reveals that despite the potential for the husband’s solicitor to lead the primary judge into error with his references to the other orders referred to during argument, it was confirmed by counsel for the wife, and accepted by the primary judge, that the focus was upon the relevant 21 November 2014 orders (transcript, 1 August 2016, pp 15 – 18). It is readily apparent from the reasons for judgment ([9] to [11] and [14]) that the primary judge had, properly, the relevant 21 November 2014 orders in focus.
Despite this, paragraph 2 of the “facts relied on” in the husband’s application for leave to appeal repeats the attempted distortion by referring to the November 2013 orders, and making no reference to the orders that were actually the focus of the application heard and determined on 1 August 2016.
When the proceedings returned before Judge Coates on the adjourned date of the trial, on 2 September 2015, the trial could not proceed because the husband, a pilot, was delayed in the Northern Territory due to an unserviceable aircraft. The trial was then adjourned, although not to any set date.
What followed then are several important events to the context in which the subject application fell to be determined. First, on 15 December 2015 the husband sold the X Street property to his then partner, Ms D. Second, on 3 February 2016 the husband was ordered to make disclosure, within 14 days, of documents and information concerning the sale including as to whether the sale to his partner was at proper market value. This the husband failed to do. Third, by an email from his solicitors to the wife’s solicitors of 9 May 2016 the husband disclosed, for the first time, some details about how the proceeds of sale of the X Street property had been disbursed by him. Without being exhaustive, by that disclosure the husband confirmed his disbursal of not less than $197,863 of those proceeds in manners apparently contrary to the express terms of Order (35) of the 21 November 2014 orders. That included disbursing about $57,000 towards his own legal fees and $25,000 in repayment of an alleged debt to his father, disputed by the wife in the substantive proceedings. This email appears as Annexure “M-3” to the wife’s affidavit filed on 19 May 2016 in support of her Application in a Case. Notably, that correspondence discloses that none of the sale proceeds were applied by the husband to reduction of the “home loans” identified in the 21 November 2014 orders.
The wife filed her Application in a Case for the subject orders on 19 May 2016 in circumstances where the property proceedings had been re-listed for directions on 20 May 2016. Thus on 20 May 2016 the application was adjourned at the husband’s request to be heard on 1 August 2016, to allow the husband an opportunity to file material in response, as is referred to by the primary judge at [15] and [16].
However, the husband did not file any material. As at the hearing on 1 August 2016, some two and a half months after being on notice of the subject application filed on 19 May 2016, there was no direct evidence from the husband before the primary judge as to, either, any attempts by the husband to refinance the mortgages secured by the A Street property (as required by Order (29) of the 21 November 2014 orders) nor as to his disbursal of the X Street sale proceeds in a manner apparently contrary to the terms of Order (35) of the orders made on 21 November 2014.
The hearing and determination on 1 August 2016
Whilst on 22 July 2016 the wife had filed an Application – Contravention alleging that the husband had contravened Order (35)(c) (of the 21 November 2014 orders) that application was listed only for mention, and not substantive hearing, on 1 August 2016.
Nevertheless, at the hearing on 1 August 2016 the solicitor for the husband persisted in attempts to defer the hearing and determination of the wife’s Application in a Case until sometime after the wife’s Application – Contravention was heard and determined. These attempts were made despite:
a)Counsel for the wife confirming on her behalf that the wife was pressing the hearing of her Application in a Case and was not pressing for any hearing of her Application – Contravention (transcript, 1 August 2016, p 3 line 10 and p 14 lines 40 – 45); and
b)The primary judge confirming that the Application – Contravention was not being pressed for hearing that day and that he was not entertaining that application (transcript, 1 August 2016, p 18 line 15).
In the face of the husband’s solicitor’s persistent attempts referred to, the primary judge sought reference to some authority for the contentions to the effect that the Court was somehow bound to hear and determine the contravention application, and to adjourn the Application in a Case for that purpose, before embarking upon any hearing of the Application in a Case. None was provided to the primary judge; none was referred to in the hearing before this Court, and I am otherwise unaware of the existence of any such authority. The solicitor for the husband referred only to the rules of practice in r 25B.01 and r 25B.04 of the Federal Circuit Court Rules 2001 (Cth). Relevantly, there were these exchanges between the primary judge and the solicitor for the husband:
MR HARRIS: Thank you, your Honour. There was a contravention application filed on 22 July 2016, your Honour, with respect to this matter.
HIS HONOUR: Yes.
MR HARRIS: That contravention, as I understand, hasn’t been withdrawn. It’s still in place.
HIS HONOUR: Yes.
MR HARRIS: And my client would seek to answer that contravention before this matter moves forward.
HIS HONOUR: Well, I’m not going to allow that unless you convince me why. He has been fairly successful in convincing me to do things so far. He might succeed again. I don’t know.
MR HARRIS: Well, my client has prepared an affidavit. He hasn’t filed it because of the contravention. He can’t place anything before this court until the contravention is heard/.
HIS HONOUR: Why? Why can’t he?
MR HARRIS: Well, the rules permit that, your Honour.
HIS HONOUR: Which rules? Which rules? I’m unaware of those rules which state that. There – there’s some authority from the Family Court which seems to say you must deal with contraventions before trial issues, and I don’t – and that was some years ago.
MR SHOEBRIDGE: The rule for that - - -
HIS HONOUR: I don’t know if it’s binding as such.
MR SHOEBRIDGE: No. Well, the – there used to be a common – a case law rule for that which predated the last two sets of family law rules
that - - -
HIS HONOUR: Well, I don’t operate under those rules. I operate under the Federal Circuit Court rules.
MR SHOEBRIDGE: And if my learned friend has a rule that he says is binding on you which obliges you to deal with the contravention, I will be interested to hear it because, frankly, my - - -
HIS HONOUR: Yes. Well, I’ve asked Mr Harris.
MR SHOEBRIDGE: But, your Honour, the rules in relation to contravention – it wouldn’t oblige the husband to put before you evidence in relation to reasonable excuse until the prima facie case had been proved.
HIS HONOUR: Well, anyway. Well, Mr Harris hasn’t finished, though, Mr Shoebridge. So I think you better let him finish.
MR SHOEBRIDGE: Thank you, your Honour.
MR HARRIS: Your Honour, with respect to contravention, once the application is filed – and I want to take this point, too, to say that the application was never filed properly honest, that - - -
HIS HONOUR: Well, if you haven’t – that – I suppose that opens the question as to whether you’ve accepted it or not, but why - - -
MR HARRIS: I just - - -
HIS HONOUR: Continue because I’m really interested in this rule.
MR HARRIS: I just raise it, your Honour. From there, my client – and it’s rules 25B(1) and it’s rule 25BA(4), procedure at a hearing:
At the hearing of the application, the court must to inform the respondent of the allegations ask the respondent whether the respondent wishes to admit or deny the allegations.
HIS HONOUR: Yes.
MR HARRIS: That’s writ [sic].
HIS HONOUR: Yes. Well, that’s right, but for the contravention.
MR HARRIS: That’s correct, your Honour.
HIS HONOUR: But - - -
MR HARRIS: The same issues that Mr Shoebridge is raising are the same issues in the contravention, your Honour.
HIS HONOUR: When was the contravention filed?
MR HARRIS: 22 July.
HIS HONOUR: When did I make my order for the husband to file material or – sorry – when did I adjourn the matter for him to - - -
MR HARRIS: My client informed – that was on 20 May, your Honour.
HIS HONOUR: 20 May.
MR HARRIS: My client informs me at the bar table here that, in essence, there was a flaw in the actual application in a case and that there was to be an amendment to that.
HIS HONOUR: Yes. To which the - - -
MR HARRIS: The application in a case filed on 19 May.
HIS HONOUR: Well, he hasn’t informed me of that. So I assume he’s not relying on any flaw in the case. Are you, Mr Shoebridge, or is it in your material in your outline?
MR SHOEBRIDGE: My learned friend – there might be a year that’s wrong, I think, in an audit. It’s – there’s – this is nothing. This is nonsensical, with very great respect. The application - - -
HIS HONOUR: Well, no. That’s not what I asked. I’m giving Mr Harris an opportunity. You can respond, but are you relying on your application, or are you seeking to amend part of it?
MR SHOEBRIDGE: I’m relying on my application, your Honour.
HIS HONOUR: Well, that’s what I understood. Yes, Mr Harris.
(Transcript, 1 August 2016, p 12, line 20 - p 14)
Despite it being patently clear that the primary judge heard and determined the wife’s Application in a Case, and did not entertain any hearing of the contravention application, the husband’s application for leave to appeal (and many of his grounds of appeal if leave were to be granted) were formulated on the fundamental misconception (or perhaps, more accurately, distortion) that the primary judge was bound to follow the procedures prescribed by Rules of Court for the hearing of a contravention application.
The contentions of the husband in the hearing below, and repeated in his application for leave in the appeal proceedings, to the effect that in the face of a filed contravention application the husband was somehow constrained from advancing affidavit evidence to meet the wife’s Application in a Case, on the ground of potential self-incrimination, confronts the following insurmountable hurdles:
a)The husband filed no affidavit in response to the wife’s Application in a Case filed on 19 May 2016 between 20 May 2016 (when he was obviously on notice of it) and over the ensuing two months that elapsed before the contravention application was even filed on 22 July 2016. Plainly, the husband had adequate time to advance any evidence he sought to lead in resisting the Application in a Case prior to any contravention application being on foot;
b)In the face of the husband’s own open correspondence, by the email of his solicitors of 9 May 2016 earlier referred to, as to how the husband dealt with the sale proceeds of the X Street property, apparently in contravention of the terms of Order (35)(c) of the orders of 21 November 2014; taken with the disclosure obligations cast upon the husband by the order made on 3 February 2016; it is inconceivable that in responding to the wife’s Application in a Case the husband could incriminate himself, beyond that which the admissions in the email of his authorised agent already had so done or as his compliance with the order of 3 February 2016 required;
c)For the same reasons, on any hearing of the contravention application it would appear inevitable that the wife established a prima facie case for the contravention alleged, on the husband’s own admissions via the subject email, leading to the husband being called upon to adduce any evidence he sought to rely upon in answer to the contravention alleged by way of reasonable excuse;
d)Even if there existed any viable prospect of the husband potentially incriminating himself by advancing affidavit evidence in answer to the wife’s Application in a Case, it was open to the husband to seek the protection of a certificate under s 128 of the Evidence Act1995 (Cth) as the primary judge referred to in his Reasons (at [23]).
There is thus no substance in the assertions, within the “facts” relied upon by the husband in his application for leave to appeal, that the primary judge was bound to follow the procedures prescribed by Rules of Court for the hearing of a contravention application, or that the husband was denied procedural fairness or the opportunity to present “material information and submissions relevant to [the] decision being made”.
As the above exchanges taken from the transcript reveal, it was the deliberate decision of the husband and/or his solicitor for the husband not to have filed the affidavit he had apparently prepared rather than any limitation being imposed by the Court.
In this context, the discretionary rule that a Court may refuse to hear an application by a party who is in apparent breach or contempt of earlier orders made in the same cause, does not arise where a party is resisting or defending an application, as the husband was in this case (Fahmi and Fahmi (1995) FLC 92-637 (“Fahmi’s case”); Watson & Watson (2013) FLC 93-530). Counsel for the wife was plainly in error in advancing the proposition that the discretionary rule had scope for operation in this case. However, nothing of consequence turns upon this. Review of the transcript reveals that the primary judge did not preclude the husband from advancing evidence if he chose to so do, nor was his solicitor limited in any way from making such submissions on behalf of the husband as he sought to make. The primary judge, having made it clear that he would not be dealing with the wife’s contravention application that day, and having observed that the husband had previously sought an adjournment to enable him to file material (a reference to what occurred on 20 May 2016), the primary judge referred to the feature that the husband had not filed sworn material.
In that context there was then no application made on behalf of the husband for the affidavit he had apparently prepared to be filed and relied upon.
Soon after counsel for the wife had made his submission as to the operation of the discretionary rule, with reference to Fahmi’s case, there were these statements by the primary judge:
HIS HONOUR: I’ve said he has been successful in seeking adjournments and he may be again. I don’t know. I’m giving him the opportunity.
MR SHOEBRIDGE: He has bought himself four years of time.
HIS HONOUR: Yes. I know what you say. Thank you, Mr Shoebridge.
MR SHOEBRIDGE: Thank you, your Honour.
HIS HONOUR: Have you got any further submissions?
MR HARRIS: Basically, your Honour, the four years of time brought by the client is to pay down the massive amount of debt and to try to get the property moved across from the – into his name. Nothing further, your Honour.
HIS HONOUR: Do you want to respond in law?
(Transcript, 1 August 2016, p 20, lines 5 – 15)
For these reasons, in my judgment, the application for leave to appeal in this case was doomed to fail. The singular lack of merit and lack of utility in the application for leave and the fact that discontinuance of the appeal proceedings came so late and after the wife had incurred substantial costs in responding to the application, in my judgment constitute justifying circumstances for an order for costs within the meaning of s 117(2) of the Family Law Act 1975 (Cth) (“the Act”).
In Penfold v Penfold (1980) 144 CLR 311 the High Court held that s 117(1) is not paramount to s 117(2) and that as s 117(1) is expressed to be “subject to s 117(2)” the former must yield whenever a judge determines in a particular case that there are circumstances that justify making an order. It is trite that consideration of the matters referred to in s 117(2A) may yield the conclusion that not only are there justifying circumstances for the usual costs order to be made, that is party and party costs, but circumstances which justify an exercise of discretion to make the very great departure from that norm by ordering costs on an indemnity basis (Kohan & Kohan (1993) FLC 93-340; Prantage & Prantage (2013) FLC 93-544).
In relation to the financial circumstances of the parties we are informed from the bar table that the wife works as a nurse and a sales representative earning $114,000 per annum as a base salary but last year, with bonuses, earned $185,000. For his part, the financial statement of the husband filed on 15 August 2016, we were told, reveals that the husband earns $286,000 per annum as a Qantas pilot. That said, it did not seem to be in dispute that in the substantive property proceedings it appears that the parties are in a negative asset position having regard to their liabilities.
Subsection (c) of s 117(2A) referring to, the conduct of the parties to the proceedings, is an essential ingredient relied upon by the wife in support of her application for indemnity costs. Aside from what has already been referred to in terms of the lack of merit and lack of utility in this application for leave to appeal, the conduct identified by the wife about which there was no dispute in response by the husband, is that the husband has failed to comply with the order of 1 August 2016 in that it provided for the wife to have sole use and occupation of the former matrimonial home, and that the husband has acted in defiance of that order, in that he has never complied with it. As earlier mentioned, a stay of the orders was sought by the husband and judgment in that application was reserved, but it seems that the practical effect of these appeal proceedings remaining on foot is that the husband has remained in the former matrimonial home contrary to the subject order.
In terms of that conduct, taken with the conduct in relation to the appeal, it seems to me that there are justifying circumstances in this case for an order for costs on an indemnity basis. I note in passing, that r 1.04 of the Rules expresses the main purposes of the rules as including “ensuring that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Rule 1.08 imposes identified responsibilities, both on parties and lawyers, in achieving that main purpose.
I am satisfied that in the circumstances of this case there are circumstances which justify the order for costs being made on an indemnity basis.
Should the cost be fixed or assessed?
Rule 19.18(1) of the Rules provides for the methods of calculating costs. These include in r 19.18(1)(a) the Court fixing upon a specific amount for costs or (b) an order for the costs to be assessed on a particular basis.
Rule 19.34 sets out the principles of assessment to be applied:
(1)A Registrar must not allow costs that, in the opinion of the Registrar:
(a) are not reasonably necessary for the attainment of justice; and
(b) are not proportionate to the issues in the case.
In Stoian & Fiening [2014] FamCA 944 I adopted the approach of Einstein J in Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 applying a similar provision of the New South Wales legislation. Likewise, Murphy J sitting as a member of the Full Court in Parke v the Estate of the late A Parke (2016) FLC 93-748 adopted a similar approach. In my judgment there is sufficient material before this Court to enable us to justly fix a sum for indemnity costs. With respect to the affidavit of the solicitor for the wife it was acknowledged that the sum claimed included some seven hours for today’s hearing and obviously an amount far short of that can only be justified, given that the appeal did not proceed for a full day’s hearing. Moreover, as it seems to me, in terms of costs reasonably necessary, a fee for counsel of $4,400 on an application such as this seems to me to be somewhat ambitious. Doing the best I can, I would fix the indemnity costs in a sum of $10,000.
For these reasons I would order
(1)That the appellant husband pay the respondent wife’s costs of and incidental to the appeal proceedings fixed in the amount of $10,000.
MURPHY J
The concession by counsel for the husband that he should pay the costs of and incidental to the appeal is properly made. I agree that the particular circumstances of this application for leave to appeal justify an order on an indemnity basis.
I also agree that the costs should be fixed in the amount of $10,000.
I otherwise agree with the reasons of Justice Kent and have nothing to add.
THACKRAY J
I also agree with the reasons of Justice Kent and with the order that he proposes.
Accordingly upon the court noting that on 18 July 2017 the appellant filed a Notice of Discontinuance of these proceedings, the formal order of the Court is:
That the appellant husband pay the respondent wife’s costs of and incidental to the appeal proceedings fixed in the sum of $10,000.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 21 July 2017.
Associate:
Date: 24 July 2017
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