FAMILY COURT OF AUSTRALIA
Nasr & Dunlop (No. 2) [2021] FamCA 365
File number(s): SYC 6215 of 2018 Judgment of: BAUMANN J Date of judgment: 4 June 2021 Catchwords: FAMILY LAW – COSTS – Where the Respondent seeks a costs order be made against the Applicant – Where the Applicant was wholly unsuccessful in her substantive application – Order made for a contribution of costs to be paid by the Applicant fixed in the sum of $75,000 Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Nasr & Dunlop [2021] FamCA 62
Kohan and Kohan (1993) FLC 92-340
Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920
Stasiuk & Guild [2021] FamCAFC 62
Yunghanns & Yunghanns (2000) FLC 93-029
Number of paragraphs: 18 Date of last submission/s: 11 March 2021 Date of hearing: 4 & 5 June and 7 July 2020 Place: Brisbane Counsel for the Applicant: Ms Bateman Counsel for the Respondent: Mr Schonell ORDERS
SYC 6215 of 2018 BETWEEN: MS NASR
Applicant
AND: MR DUNLOP
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 JUNE 2021
THE COURT ORDERS:
1.That within sixty (60) days of the date of this Order, the Applicant MS NASR pay to the Respondent MR DUNLOP a contribution to his costs fixed in the sum of $75,000.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nasr & Dunlop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 19 February 2021 the Court delivered reasons (see Nasr & Dunlop [2021] FamCA 62) in this matter for its Order dismissing an Application by Ms Nasr (“the Applicant”) and for the declaration that a de facto relationship never existed between the Applicant and Mr Dunlop (“the Respondent”).
As a result, the Respondent, by written submissions filed on 11 March 2021, seeks orders that the Applicant pay his costs of and incidental to the proceedings either:
(a)on an indemnity basis in the sum of $211,619.22; or
(b)in the alternative, fixed on a party/party basis in the sum of $75,382.54; or
(c)in the alternative, on a party/party basis as agreed or assessed.
The Applicant (being the Respondent to the application for costs), was directed to file and serve any submissions as to costs in reply by 6 April 2021. She has not done so, and as such the application for costs has been considered in chambers on the papers.
PRINCIPLES
Although s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides a general rule that each party bears their own costs…
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- Case
- [2021] FamCA 365
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether circumstances existed to justify making a costs order against the Applicant, and if so, what the appropriate quantum of that order should be. This involved considering the various factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), which governs costs in family law proceedings.
Baumann J reasoned that circumstances did exist to justify a costs order, applying the considerations under s 117(2A). The Court noted the Respondent's significantly superior financial position, the lack of legal aid for either party, and crucially, the Applicant's conduct. This conduct included non-compliance with trial directions, unsuccessful applications for adjournments, and a failure to accept settlement offers made by the Respondent, including one that proposed each party bear their own costs. The Court found that the Applicant's substantive application lacked evidential foundation and that she had ample opportunity to withdraw her claim without incurring a costs order. While not finding the Applicant's mindset to be vexatious or frivolous, the Court concluded that she ought to have withdrawn her weak case, which relied heavily on her uncorroborated evidence.
Consequently, Baumann J ordered that the Applicant pay to the Respondent a contribution to his costs fixed in the sum of $75,000, to be paid within sixty days of the order date.
Orders
Orders of the court
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 JUNE 2021
THE COURT ORDERS:
1. That within sixty (60) days of the date of this Order, the Applicant MS NASR pay to the Respondent MR DUNLOP a contribution to his costs fixed in the sum of $75,000.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nasr & Dunlop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
For the reasons which follow, the Court is satisfied that circumstances exist to justify an order for costs, and those circumstances are best identified through the matrix of the s 117(2A) considerations which follow.Considerations(a)The Respondent properly concedes his financial position is “vastly superior” to that of the Applicant;(b)Neither party was in receipt of assistance from Legal Aid; and(c)The conduct of the Applicant, particularly during the interlocutory events in the Federal Circuit Court of Australia after the Applicant commenced proceedings in that Court on 27 September 2018 and then from August 2019 when unrepresented, cannot all be attributed to her lack of representation. The Applicant (as noted at [6] of the Reasons for Judgment delivered 19 February 2021) did not comply with trial directions made 27 February 2020. Applications by the Applicant for adjournments of the trial were dismissed. The Respondent complied with the Orders of the Court;(d)The substantive proceedings were not necessitated by the failure of any party to comply with Orders;(e)The Applicant has been wholly unsuccessful in the proceedings;(f)The Respondent, at paragraph 22(f) of the written submissions, provides details of numerous items of correspondence from the solicitors for the Respondent to the Applicant (or her solicitors on the record at the time) relating to issues such as:(i)seeking to encourage the Applicant to engage with the issues and withdraw her application;(ii)in an attempt to minimise his costs, offered the Applicant, by letter dated 31 May 2019, the sum of $20,000 on the basis she agreed for her application to be dismissed. No response was ever received;(iii)articulating the failure of the Applicant to properly comply with Court Orders and/or directions; and(iv)and even as late as 17 April 2020, the Respondent proposed to the Applicant that her “case” be dismissed but with each party being responsible for their respective legal costs. The Applicant did not accept the proposed offer.(g)The Respondent submits that the Applicant “adopted a cavalier attitude in the full knowledge that the Respondent was incurring significant costs in meeting her claim, which was ultimately established had no evidential foundation.CONCLUSION Based on the matters canvassed above, I find circumstances exist to justify an order for costs. Parties, like the Respondent who have some significant wealth, should not be the subject of claims of this nature vexatiously or frivolously by way of a form of “extortion”. However, I am not of the view this was the Applicant’s mindset – rather her perception of the relationship was not only very different from that of the Respondent, but on the evidence she offered to the Court (she bearing the onus), a weak case almost entirely reliant on her evidence alone, with no real corroboration, being accepted by the Court. The Applicant had plenty of opportunities during the litigation pathway to withdraw without the risk of a costs order against her. She ought to have done so.QUANTUM OF COSTS