Peat & Northup

Case [2022] FedCFamC1F 322

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Peat & Northup [2022] FedCFamC1F 322

File number(s): ADC 554 of 2018
Judgment of: BERMAN J
Date of judgment: 13 May 2022
Catchwords: FAMILY LAW – COSTS – Circumstances justifying an order – Where the applicant seeks costs on a party-party basis only in relation to the property aspect of the proceedings – Where the respondent opposes the application – Where the application is brought out of time – Where the delay was not significant and the respondent was aware costs was a live issue – Where no prejudice would be caused if leave were given for the filing of the application – Consideration of the financial circumstances of the parties – Consideration of the conduct of the parties – Where the respondent was not wholly unsuccessful – Where offers to settle were made – Where an order for costs should be made.   
Legislation:

Family Law Act 1975 (Cth) s 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 15.06

Cases cited:

Browne v Green (2002) FLC 93-115

Collins & Collins (1985) FLC 91-603

Gallo v Dawson (1990) 96 ALR 479

Rouse & Rouse (1981) FLC 91-073

SCVG & KLD [2009] FamCAFC 56

Division: Division 1 First Instance
Number of paragraphs: 82
Date of hearing: 5 April 2022  
Place: Adelaide
Counsel for the Applicant: Ms Bailey
Solicitor for the Applicant: Culshaw Miller Lawyers
Counsel for the Respondent: Litigant in person

ORDERS

ADC 554 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PEAT

Applicant
AND:

MS NORTHUP

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1.The respondent pay the applicant’s costs fixed in the sum of THIRTY THREE THOUSAND DOLLARS ($33,000) inclusive of GST on or before thirty (30) days from the date of this order.

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 the pseudonym Peat & Northup is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

  1. By Amended Application in a Case filed 17 December 2021, Mr Peat (“the applicant”) seeks an order that he be granted leave to file an application for costs out of time and if successful he seeks the following orders against Ms Northup (“the respondent”):

    4.……

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AGLC
Peat & Northup [2022] FedCFamC1F 322
Case
[2022] FedCFamC1F 322
Decision Date

CaseChat Overview and Summary

In the case of Peat & Northup, the applicant, a man, sought a costs order against the respondent, a woman, in relation to a property settlement that had been part of a final hearing in the Family Court of Australia. The applicant was successful in his appeal against the original decision, and sought an order for costs, including leave to bring the application out of time. The respondent opposed the application for costs. The court was required to decide whether the applicant was entitled to an extension of time to bring the costs application and, if so, whether the applicant was entitled to the full amount of costs sought.

The court held that the discretion to extend time was given to enable the court to do justice between the parties and that the applicant must show adequate reason to explain the delay, that there is an issue of significance or substance to be determined, and that there is no hardship caused to the respondent. The court found that the applicant had shown adequate reason to explain the delay and that there was an issue of significance or substance to be determined. The court also found that there was no hardship caused to the respondent as she had money available to her. The court held that the applicant was entitled to an extension of time to bring the costs application. The court also found that the applicant was entitled to some costs but not the full amount sought, and made an order for costs in the sum of $33,000 to be paid within 30 days of the order.

The court ordered that the respondent pay the applicant's costs fixed in the sum of $33,000 to be paid within 30 days of the order.

Orders

Orders of the court

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Background

Background to the litigation

The respondent opposes the costs order sought by the applicant.BACKGROUND The parties were not able to resolve their differences in respect of the parenting arrangements for X born 2007 and Y born 2010. In addition, the parties were in conflict as to settlement of property. Following a final hearing which commenced on 31 August 2020, judgment was delivered on 24 December 2020. The judgment set out the reasons for parenting and property settlement orders. The applicant does not seek a costs order in respect of the child related proceedings. The orders for property settlement and division included the following order by way of a settlement sum payable to the respondent:(12)That in full and final settlement of any claim that either party may have against the other or at any time in the future for settlement of property or alteration of interests in property:-(a)That the husband and wife do all things necessary to distribute the funds in the NAB joint account representing the net proceeds of sale from the [Suburb F] property in the following manner:-(i)To the wife the sum of THREE HUNDRED AND SIXTY FIVE THOUSAND TWO HUNDRED AND TWENTY SEVEN DOLLARS ($365,227);(ii) To the husband the balance. The parties signed documents necessary to close the joint NAB account with the settlement sum being transferred to the respondent. On 23 February 2021, the respondent filed a Notice of Appeal in respect of parenting and property. The Appeal was heard by the Full Court on 21 June 2021 with judgment delivered on 12 November 2021. The respondent was unsuccessful and was ordered to pay the applicant’s costs fixed in the sum of $30,000. The applicant filed his application for costs on 9 March 2021 and sought an order for leave to bring the costs application out of time.EXTENSION OF TIME The applicant concedes that he had 28 days in which to bring his application for costs but did not do so. Rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides as follows:(1)The court may at any time, on the application of a party or on the court’s own initiative, shorten or extend a time that is fixed under these Rules or by procedural order.(2)A party may apply under subrule (1) for an order extending a time even though the time fixed by the rule or procedural order has passed.(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application. The Rules do not set out any threshold test or the matters to be considered in relation to an application for an extension of time. The exercise of the discretion is not automatic. In Gallo v Dawson (1990) 96 ALR 479 McHugh J said:The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. What is required is that the applicant show adequate reason to explain the delay, that there is an issue of significance or substance to be determined and that there is no hardship caused to the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the extent that I do not feel that the pursuit by the respondent of the inclusion of the family settlement trust in the pool fits comfortably with a consideration of the conduct of the parties, it is an easier inclusion in s 117(2A)(g) of the Act, being other matters that the Court may consider relevant.CONCLUSION As discussed, the applicant’s fees in respect of the property component have been assessed at $33,400 with counsel fees totalling a further $16,662.50. Given that I have found that the respondent was unreasonable in her pursuit of the inclusion in the property pool of the family settlement trust, that at the very least she rejected not only the first offer but in particular the second offer in circumstances where no counterproposal was made, I consider that an order for costs should be made but should be tempered by some consideration of the respondent’s financial position as compared to that of the applicant. The component for solicitor’s fees on a party-party basis should be in the sum of $20,000 with a further portion of counsel fees representing the equivalent of three days totalling $10,000. I consider that there was merit in the application for costs being filed in circumstances where the respondent opposed any order for costs and has been unsuccessful. Again, tempering the quantum of costs sought by the applicant in the sum of $4,290, I propose to order a further $3,000 be paid by the respondent. Accordingly, the respondent is to pay the applicant’s costs fixed in the sum of $33,000. I bring to account the financial circumstances of the respondent but note that she has money available to her and as such, I do not consider there is any basis upon which to give an extended time for payment of the costs order. I propose that the sum of $33,000 be paid to the applicant within 30 days of this order. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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