Quirk and Lake

[2017] FamCA 500

FAMILY COURT OF AUSTRALIA

QUIRK & LAKE [2017] FamCA 500

FAMILY LAW – COSTS – Application by the wife for costs pursuant to s 117(2A) of the Family Law Act – Where the husband was wholly unsuccessful in his application to restrain the wife’s solicitors from acting – Where there is no evidence of the husband’s financial circumstances – Order made for the husband to pay the wife’s costs of the interim application, and her costs in relation to the costs application, on a party and party basis.

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

APPLICANT: Ms Quirk

RESPONDENT: Mr Lake

FILE NUMBER: 3702 of 2010

DATE DELIVERED: 17 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diamond Conway

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Orders

IT IS ORDERED

1. That within 30 days of assessment or agreement, the husband pay the wife’s costs of the application to restrain her solicitors from continuing to act, and her application for costs of those proceedings, on a party and party basis as assessed or agreed.

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 Quirk & Lake 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 SYDNEY

FILE NUMBER: SYC 3702 of 2010

Ms Quirk

Applicant

And

Mr Lake

Respondent

REASONS FOR JUDGMENT

1. The substantive proceeding in this matter includes an application by Ms Quirk (“the wife”) to set aside a Financial Agreement into which she entered with Mr Lake (“the husband”) on 6 September 2010. Those proceedings have not yet been determined.

2. On 4 August 2016, the husband filed an Application in a Case seeking to restrain the wife’s solicitors from continuing to act for her. That application was opposed by the wife and heard on 31 November 2016. Judgment was delivered on 2 November 2016 dismissing the husband’s application.

3. The wife now seeks an order that the husband pay her costs of the application. He opposes that application.

4. Both parties have filed written submissions in relation to costs. The wife has filed affidavits from herself and a solicitor. The husband filed no evidence.

5. The application is governed by the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), the relevant provisions of which are set out below:

   (2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)  such other matters as the court considers relevant.

1. No reliance is placed by either party on subsections (2A)(b) or (2A)(d).

The financial circumstances of the parties

1. The wife is not employed. She has no assets of significance. The husband has not put any financial information before the Court in relation to this application. The wife asserts that he is employed and owns real estate. The written submissions filed by counsel for the husband do not address this issue. It can be assumed, in the absence of evidence from the husband, that his financial position is superior to that of the wife.

The conduct of the proceedings

1. Extensive submissions were filed by counsel for the husband about the wife’s conduct of the substantive proceedings. That is not the conduct which is relevant here. The only conduct that could be relevant to this application is the conduct of the respective parties in relation to the Application in a Case filed by the husband on 4 August 2016.

2. However, counsel for the husband submits that the assurance given by counsel for the wife that the solicitor would not be called to give evidence on behalf of the wife in the substantive proceedings was given only on the morning of the hearing of the application for the wife’s solicitors to be restrained from acting.

3. At the time of the hearing of the Application in a Case, the wife’s solicitor had not sworn and filed an affidavit in support of her case. He was not a witness in the proceedings. Had he been a witness, the Application in a Case might have had a different outcome. The time for the husband to bring the Application in a Case was when it became clear that the wife intended to rely on the evidence of her solicitor.

Whether a party was wholly unsuccessful

1. The husband’s Application in a Case was dismissed. He was wholly unsuccessful.

Offers of settlement

1. There is no evidence of any offer of settlement from either party in relation to the issue in the Application in a Case, that is, the application to restrain the wife’s solicitor from continuing to act.

2. On 9 November 2016, the wife’s solicitors wrote to the husband’s solicitors offering to compromise her claim for costs and accept $8,500 in lieu of her actual costs incurred of $10,625.45. Those costs were calculated in accordance with a costs agreement between the wife and her solicitors and accordingly must have been solicitor/client costs or indemnity costs. There is no application before the Court for indemnity costs and no offer of settlement quantifying party and party costs.

Other relevant matters

1. The parties were offered the opportunity to have the matter determined in chambers without the need for any further appearance. The husband asked for the matter to be heard in open court and the matter was accordingly listed, thus increasing the costs incurred by the wife. Counsel for the husband did no more than rely on the written submissions and no new matters. For the same reasons, he should pay the wife’s costs of the costs application.

Conclusion

1. The husband has been wholly unsuccessful. His financial position is superior to that of the wife. He should pay her costs on a party and party basis as assessed or agreed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 July 2017.

Associate:

Date:  17/7/2017