Pember and Bryson

[2017] FamCA 831

FAMILY COURT OF AUSTRALIA

PEMBER & BRYSON [2017] FamCA 831

FAMILY LAW – COSTS – Costs order made.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Pember

RESPONDENT: Ms Bryson

FILE NUMBER: BRC 8546 of 2010

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 13 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Tucker, Tucker & Cowen

SOLICITOR FOR THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT ON A FINAL BASIS THAT

1. Pursuant to s 105 of the Family Law Act 1975 (Cth) and Rule 20.07 of the Family Law Rules 2004, and by way of enforcement of Clause 1.1.1 (a) of the Order made by consent on 17 December 2014 (amending the Order made by consent on 13 February 2014), such that by this order the Liquidator of C Pty Ltd (in liquidation) is hereby authorised to pay any dividends payable to either Ms Bryson, or Mr Pember pursuant to the Assignment of the Respondent’s rights as a creditor of C Pty Ltd, from C (in liquidation) as follows:

   (a)firstly, the sum of $370,000.00 (or any part thereof proportionately until that amount has been paid in total) to Tucker and Cowen Solicitors ($120,000.00) and the Liquidator of ACN … Pty Ltd (in liquidation) ($250,000.00), on a pro rata basis;  and

   (b)second, the sum of $25,000.00 to Ms E Pember;  and

   (c)thirdly, the sum of $255,000.00 (or any part thereof until that amount has been paid in total) to the Trust Account of Attwood Marshall Lawyers (to the account of Mr Pember);  and

   (d)finally, any further amount payable, equally in the proportions of 50 per cent each to, or at the direction of, Mr Pember and Ms Bryson respectively.

AND IT IS FURTHER ORDERED THAT

1. The Respondent pay the Applicant’s costs and incidental to the appearance on 6 September 2017.

AND IT IS FURTHER ORDERED THAT

1. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

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 Pember & Bryson 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8546 of 2010

Mr Pember

Applicant

And

Ms Bryson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have, today, finally made orders by consent by way of enforcement, enforcing orders that were previously made by consent by the parties originally on 13 February 2014 and, subsequently, by way of variation of those final orders – again, by consent, on 17 December 2014. 

2. Reference to the record in this matter will establish that I earlier heard, as part of the Applicant’s application for enforcement, argument in relation to the interpretation, as it were, of the relevant clause of the existing consent order.  The reasons expressed for my determination were delivered on 29 July 2016. 

3. The parties then more recently appeared before me on 6 September 2017.  At that time, whilst Ms Bryson placed on the record that she was agreeable to orders, she also told me that, whilst she was hoping for an outcome that day, she was still wishing to argue the quantum.  The quantum is, in fact, the same amount in respect of which I have just made orders today. 

4. In this jurisdiction, the issue of costs is governed by the terms of s 117 of the Act.  Unlike other civil jurisdictions, in this jurisdiction the starting point, as prescribed by s 117(1) of the Act, is that each party bear their own legal costs. 

5. However, the Court is provided with the discretion to make an order in relation to the payment of costs if satisfied that the circumstances justify the making of the same. 

6. In this case, the Applicant seeks an order for costs in the manner articulated by Mr Tucker, who appears on his behalf. 

7. In essence, by way of very brief summary, the submissions made by Mr Tucker are really that the conduct of Ms Bryson has contributed to the costs and that, to use his terms, her conduct has either been unreasonable or, perhaps more pejoratively, deplorable.  The submission really, seemed to me, focused very much upon the contention that costs have been incurred as a consequence of Ms Bryson’s flip-flopping or waxing and waning vis à vis her consent to the terms of an order. 

8. In opposing the making of an order for costs, Ms Bryson made significant submissions.  These are, obviously, contained on the record.  In essence, she submitted that, whilst the Applicant initially sought an order by way of enforcement for the payment of a sum of in the vicinity of $830,000.00, the parties have compromised in relation to the payment of the sum of $650,000.00.  Her submission is also to the effect that the Application in a Case filed in June of this year was unnecessary and sought relief not open to the Court; it was incapable of success and in that sense was unnecessary. 

9. I very much gained the impression from Ms Bryson’s submissions, unsupported by sworn evidence, that she contended that she was unclear as to matters until after her last appearance in September. 

10. However, reference to the record of the evidence before me clearly establishes that the invoices exhibited to the Applicant’s affidavit filed 12 August 2016 were provided by him to her before that.  Reference, also, to the evidence before me – in particular, the affidavit the Applicant filed 13 June 2017 – establishes that, on a number of occasions between 9 October 2016 and 28 November 2016, Ms Bryson expressed her agreement vis a vis the quantum which now finds itself recorded in the order I have made. 

11. That position, of course, was affected, as I have said, by her contentions to me as recorded in the Transcript of the appearance on 6 September 2017. 

12. I am satisfied that the circumstances of the case justify the making of an order for costs that Ms Bryson pay the Applicant’s costs.  The question is of what and how.  It seems to me that the circumstances justify the making of an order that Ms Bryson pay the Applicant’s costs of and incidental to the appearance on 6 September 2017. 

13. I have arrived at that decision because I consider that the costs thrown away in that appearance were as a consequence completely of Ms Bryson’s determination to seek an adjournment of the matter – to which I acceded. 

14. I have taken into account, of course, the submissions made by, or on behalf of, each of the parties in arriving at that conclusion.  I have also taken into account the terms of the order I have made by consent this morning. 

15. For those very short reasons, which I consider sufficient in the circumstances of the discretionary decision as to costs, an order will issue in those terms. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 October 2017.

Associate: 

Date:    13 October 2017