FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nellie & Nellie (No 3) [2024] FedCFamC1F 367
File number: SYC 8520 of 2022 Judgment of: CAMPTON J Date of judgment: 30 May 2024 Catchwords: FAMILY LAW – COSTS – Application by the wife for the husband to pay her costs of his unsuccessful objection to registration of, and unsuccessful review once registered of, an Arbitral Award in a fixed sum – Where the husband has not filed any material in the costs application – Husband ordered to pay the wife’s costs fixed in the sum of $67,000. Legislation: Family Law Act 1975 (Cth) s 13J, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 12.17
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Nellie & Nellie [2023] FedCFamC1F 1050
Nellie & Nellie (No 2) [2024] FedCFamC1F 198
Division: Division 1 First Instance Number of paragraphs: 22 Date of last submission/s: 26 April 2024 Place: Sydney Counsel for the Applicant: Mr Tabbernor Solicitor for the Applicant: Bay Legal The Respondent: Did not participate ORDERS
SYC 8520 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NELLIE
Applicant
AND: MS NELLIE
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.The husband pay the wife costs of his Response to an Application in a Proceeding objecting to registration of an Arbitral Award filed 29 November 2023 and his Amended Application for Review of an Arbitral award dated 14 March 2024, fixed in the sum of $67,000, by instalments as follows:
(a)As to the sum of $33,000 within seven days of the date of this order; and
(b)As to the balance, within 60 days of the date of this order.
2.The husband forthwith do all such things as are necessary to direct the solicitors holding the sum of $33,000 on trust for him from the proceeds of sale of E Street, Suburb C to cause and direct the payment of those monies to be made to the solicitors for the wife in satisfaction of the first instalment payment pursuant to Order 1.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Nellie & Nellie has been approved pursuant…
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CaseChat Overview and Summary
The court considered various factors in making its decision, including the financial circumstances of the parties, the conduct of the parties in relation to the proceedings, whether any party had been wholly unsuccessful, and the offers of settlement made by the parties. The wife had the benefit of 80% of the property of the parties, valued at around $3.95 million, while the husband had the benefit of 20%, valued at just under $1 million. The husband had not worked in paid employment since 1999, and the wife had ceased paid employment shortly after the commencement of their relationship in 1988. The court found that the husband was wholly unsuccessful in his objection to the registration of the Award and in his Application for Review, which was a significant factor in favour of the wife’s application for costs.
The court ordered that the husband pay the wife’s costs of his unsuccessful objection to the registration of the Arbitral Award and his unsuccessful review of the Award, fixed in the sum of $67,000. The payment was to be made in two instalments: $33,000 within seven days of the date of the order, and the balance within 60 days of the date of the order. The court also ordered that the husband take immediate action to direct the payment of the first instalment from the proceeds of the sale of a property held in trust for him.
This case underscores the importance of engaging in the costs process and the potential consequences of failing to do so. The court emphasised that the husband’s lack of engagement in the costs proceeding was a significant factor in favour of the wife’s application for costs. The court also highlighted the importance of considering the financial circumstances of the parties and the conduct of the parties in relation to the proceedings when deciding on costs.
Orders
Orders of the court
SYC 8520 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR NELLIE
Applicant
AND:
MS NELLIE
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1. The husband pay the wife costs of his Response to an Application in a Proceeding objecting to registration of an Arbitral Award filed 29 November 2023 and his Amended Application for Review of an Arbitral award dated 14 March 2024, fixed in the sum of $67,000, by instalments as follows:
(a) As to the sum of $33,000 within seven days of the date of this order; and
(b) As to the balance, within 60 days of the date of this order.
2. The husband forthwith do all such things as are necessary to direct the solicitors holding the sum of $33,000 on trust for him from the proceeds of sale of E Street, Suburb C to cause and direct the payment of those monies to be made to the solicitors for the wife in satisfaction of the first instalment payment pursuant to Order 1.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.CONSIDERATION The wife submitted that the circumstances justifying a costs order arise from a consideration of the parties’ financial circumstances, the conduct of the parties in relation to the proceedings, whether any party has been wholly unsuccessful in the proceedings, and the offers of settlement of the parties. Pursuant to the registered Award as amended, the wife has the benefit of 80 per cent of the property of the parties, having a value in the range of $3.95 million, and the husband has the benefit of 20 per cent, having a value in the range of just under $1 million. The husband has not worked in paid employment since 1999. The wife ceased paid employment a few months subsequent to the commencement of the relationship in 1988. A major issue between the parties was as to the husband’s gambling activities. The arbitrator concluded that there was a “strong inference that he has lost money gambling”, due to his inability to account for $172,000 that he had received in interim property settlements. The financial circumstances of the parties are a factor to be given some weight. The wife submitted that she conceded the mathematical error in the Award at the first listing subsequent to its publication, such that the error could have been disposed of consensually and expeditiously. There is no reason not to accept that contention. The husband was wholly unsuccessful in his objection to the registration of the Award and in his Application for Review. I am mindful that this is not affirming that the husband has been wholly unsuccessful in the proceedings. I find that this absence of success is a factor identified as relevant pursuant to s 117(2A)(g) of the Act, attracting very significant weight. The wife further submitted that she made an offer of settlement on 4 April 2023. This was prior to the arbitration. It is not relevant to this costs application. On 21 November 2023, the husband made an offer to the wife for him to receive 35 per cent of the property of the parties to resolve the impasse at that time as to the objection to registration. She submits, and I accept, that his offer was optimistic in circumstances where he had an entitlement to 20 per cent of the property of the parties pursuant to the Award. The terms of the offer, subsequent to the dismissal of the s 13J review, is otiose. For the above reasons, I find that the wife has established circumstances which justify departure from the position that each party pay their own costs, and as to the making of a costs order in her favour. The wife sought indemnity costs fixed in the sum of $65,000 for the proceedings, and $2,000 for the costs of the costs application. The husband has failed to engage in the costs proceeding by filing any affidavit material or submissions. As recorded in the reasons delivered 8 December 2023, the husband’s application objecting to the registration of the Award was misconceived. The husband was provided indulgences, by way of adjournments, to amend his Application for Review to identify questions of law, leading to further unnecessary court appearances. As recorded in the reasons delivered 26 March 2024, the husband failed in his material as filed to pose a question of law. His prospects of success in his s 13J review were at all times poor.