Piovene & Muhlfeld

Case [2024] FedCFamC1F 178

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Piovene & Muhlfeld [2024] FedCFamC1F 178

File number: SYC 4211 of 2023
Judgment of: CAMPTON J
Date of judgment: 21 March 2024
Catchwords: FAMILY LAW – COSTS – Where the applicant and respondent are in dispute as to having been in a de facto relationship – Where the applicant filed an Application in a Proceeding seeking an anti-suit injunction as to proceedings commenced by the respondent in the Supreme Court of NSW in which the applicant was not a party, and seeking the Supreme Court transfer its proceeding to this Court – Where the applicant withdrew that Application on his own motion – Where the respondent makes an application for costs – Costs ordered in fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 90RD, 90SM, and 117

Federal Circuit and Family Court of Australia 2021 (Cth) 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 12.3, and 12.17
Cases cited:

Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Kohan & Kohan [1993] FLC 92-340; [1992] FamCA 17

Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920; [2019] FamCAFC 186

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

Sfakianakis & Sfakianakis (2019) Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance
Number of paragraphs: 36
Date of hearing: 19 March 2024
Place: Sydney
Solicitor for the Applicant: Marsdens Law Group
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

SYC 4211 of 2023

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

MR PIOVENE

Applicant
AND:

MS MUHLDELD

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:

1.Within 28 days from the date of this order the applicant pay the respondent’s costs of and incidental to the Application in a Proceeding filed 31 October 2023 as amended on 9 January 2024 fixed in the sum of $25,000.

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 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 Piovene & Muhlfeld has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CAMPTON J:

  1. These reasons determine an application for costs by Ms Muhlfeld (“the respondent”) after the withdrawal and dismissing of an Application in…

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AGLC
Piovene & Muhlfeld [2024] FedCFamC1F 178
Case
[2024] FedCFamC1F 178
Decision Date

CaseChat Overview and Summary

The matter before the court involved Mr. Piovene as the applicant and Ms. Mühlfeld as the respondent. The dispute centered on whether the parties were in a de facto relationship and on the enforceability of a loan agreement between the respondent and the applicant's son. The court was required to decide whether the applicant's withdrawn application warranted a costs order and, if so, the appropriate amount.

The central legal issue was whether the respondent was entitled to costs for the withdrawn application filed by the applicant. The respondent argued that the applicant was wholly unsuccessful in the proceedings, while the applicant contended that the application was not without merit and that it was withdrawn, not dismissed. The court examined the financial circumstances of the parties, the conduct of the proceedings, and whether the applicant was wholly unsuccessful. The respondent did not provide financial evidence but had the capacity to meet her costs, while the applicant claimed a modest income and no significant savings but owned substantial property. The applicant's application was withdrawn, but the substantive proceeding remained ongoing.

The court found that the respondent was entitled to costs due to the applicant's unsuccessful application and ordered that the applicant pay the respondent's costs in the fixed sum of $25,000. The court considered the applicant's financial position, the lack of merit in the withdrawn application, and the respondent's success in having the application dismissed. The court's decision was based on the criteria set out in section 117(2A) of the Family Law Act 1975 (Cth), focusing on the unsuccessful nature of the withdrawn application and the applicant's financial capacity to meet the costs.

The court ordered that Mr. Piovene pay Ms. Mühlfeld's costs of and incidental to the application filed on 31 October 2023, as amended on 9 January 2024, in the fixed sum of $25,000 within 28 days from the date of the order. The form of the order is subject to review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PIOVENE

Applicant

AND:

MS MUHLDELD

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:

1. Within 28 days from the date of this order the applicant pay the respondent’s costs of and incidental to the Application in a Proceeding filed 31 October 2023 as amended on 9 January 2024 fixed in the sum of $25,000.

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 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.

Background

Background to the litigation

For the reasons that follow, the applicant is to pay the respondent’s costs in the fixed sum of $25,000. BACKGROUND By way of an Initiating Application filed 14 June 2023 in the Federal Circuit and Family Court of Australia (Division 2), the applicant commenced proceedings seeking a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) as to a de facto relationship between he and the respondent commencing in 2010 and terminating on 26 October 2022, and upon such declaration being achieved, relief as to the adjustment of property pursuant to s 90SM of the Act. The respondent contends that no de facto relationship existed. She seeks that the Initiating Application be dismissed. In an Application in a Proceeding filed on 31 October 2023, the applicant sought orders restraining the respondent from enforcing a loan agreement between the respondent and the applicant’s son, Mr B, dated 9 June 2022 (“the Loan Agreement”) secured by way of a mortgage over a property located at C Street, Suburb E (“the Suburb E property”). The applicant’s son is recorded as the legal owner of the Suburb E property. The applicant contends that his son holds the property on trust for him. On 29 November 2023, the respondent commenced proceedings in the Supreme Court of NSW to enforce the Loan Agreement and mortgage. The defendant in those proceedings is the applicant’s son. The applicant is not a party to those proceedings. The applicant’s son is not a party to the proceedings in this forum. On 6 December 2023, the proceedings in this forum were listed for directions hearing before a judicial registrar. On that day the Application in a Proceeding filed 31 October 2023 was listed for hearing on 7 February 2024. On 9 January 2024 the applicant filed an Amended Application in a Proceeding seeking orders restraining the respondent by injunction from enforcement the loan agreement between the respondent and his son, from commencing any other proceedings against the applicant or the applicant’s son in any other jurisdiction for the repayment of the principal sum of the Loan Agreement, and for the Supreme Court of NSW to transfer its proceedings to this Court so that those proceedings may be heard together with these proceedings. On 5 February 2024, the parties signed a consent order for the applicant to be joined as a party to the Supreme Court proceedings. On 7 February 2024, the hearing of the Amended Application in a Proceeding did not proceed. On that day the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1). The interlocutory relief prosecuted by the applicant was subsequently listed for hearing on 16 February 2024 in this forum. On 8 February 2024, the respondent withdrew her consent for the applicant to be joined as a party to the Supreme Court proceedings. On 16 February 2024, the applicant withdrew his Amended Application in a Proceeding and consented to its dismissal. The respondent made an oral application for costs. Orders were made for the parties to file written submissions as to costs and for the matter to be determined in chambers. This is that determination.ORDERS SOUGHT

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

If the respondent establishes there are circumstances justifying a costs order, the next consideration is on what basis costs should be paid. The Full Court has made it clear that it is unnecessary to provide detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.CONSIDERATION The respondent 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, and whether any party has been wholly unsuccessful in the proceedings. As to her own financial circumstances, the respondent did not file a financial statement nor adduce evidence as to her financial position. She has the capacity to meet her legal costs. The applicant submitted that he has a “modest” weekly income of $1,375 and has no significant savings. The respondent identified that the applicant has property of approximately $1.3 million. The respondent submitted that the applicant was “wholly unsuccessful” in the application filed. She submitted that “inherent” in the applicant’s application being withdrawn and dismissed “is the fact that the respondent was wholly successful in her application given that she sought its dismissal from the outset.” The applicant submitted that the proceedings were withdrawn, and therefore not “wholly unsuccessful” referring to Bant & Clayton (Costs) (2016) 56 Fam LR 31. The applicant’s Application in a Proceeding, as amended, was withdrawn by him on 16 February 2024 and dismissed by the Court. This is a relevant factor by reference to s 117(2A)(g) of the Act, rather than a factor pursuant to s 117(2A)(e), as submitted by the respondent. In Anison & Anison (2019) FLC 93-908 the Full Court said as to s 117(2A)(e):37.It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed. In the oft-cited authority in this area of Robinson and Higginbotham earlier referred to, Nygh J (with whom Simpson & Smithers JJ agreed) said: Her Honour then makes a reference to the question of which party was wholly successful but, of course, as counsel for the mother rightly submitted, paragraph (e) deals with a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed. It is not the case that the applicant has been wholly unsuccessful in the proceeding. He was unsuccessful in his Application in a Proceeding as amended. The substantive proceeding remains on foot, with the s 90RD determination awaiting the allocation of a seven-day trial. As to the Application in a Proceeding being withdrawn and dismissed, the applicant submitted that he did not initiate or conduct an unmeritorious interlocutory application for three reasons, being:(a)There is substantial evidence as to the existence of the asserted relationship;(b)There is substantial evidence that the Suburb E property was purchased in the name of his son who holds the property on trust for him; and(c)The respondent commenced the Supreme Court of NSW proceedings with full knowledge of these proceedings, and the outcome of the Supreme Court of NSW proceedings may prejudice the applicant’s rights and entitlements in these proceedings.