S & W & H (Costs)

[2006] FamCA 431

[2006] FamCA 431

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                Appeal No EA136 of 2005
AT SYDNEY  File No SYF5191 of 1993

BETWEEN:

S
Applicant Wife
- and -

W
- and -
H

11^TH and 12^th Respondents

REASONS FOR COSTS JUDGMENT

CORAM:  BRYANT CJ, KAY & COLEMAN JJ
DATE OF HEARING:                 By way of written submissions
DATE OF JUDGMENT:             1 June 2006

SUBMISSIONS RECEIVED FROM:

The Applicant Wife in person.

Mallesons Stephen Jaques, Solicitors, Level 60, Governor Phillip Tower, 1 Farrar Place, Sydney NSW 2000, appeared on behalf of the Respondent Husband.

S & W & H
EA136 of 2005
CORAM:  BRYANT CJ, KAY & COLEMAN JJ
DATE OF HEARING          By way of written submissions
DATE OF JUDGMENT:     1 June 2006

Catchwords:           COSTS – Third parties – Failed attempt to obtain leave to appeal against dismissal of an application to enjoin judgment creditors from enforcing judgment via bankruptcy proceedings – $3,000 costs order in favour of respondents appropriate.

1. In this matter on 3 May 2006 we dismissed the wife’s application for leave to appeal against orders refusing to allow the wife to join the respondents to the application as parties in property proceedings against her former husband.

1. At the time we delivered our judgment the wife had already left the precincts of the court and it became necessary for us to make directions concerning the respondents’ application for costs.  We directed that the respondents advise the applicant and the Court, in writing, within seven days of the sum sought for costs of the application, we granted the applicant liberty to file and serve any written submissions on the costs issue within 14 days of the receipt of the respondent’s advise, and we otherwise reserved the question of costs.

1. Although it appears that the time limits may not have been strictly adhered to, we have now received submissions from the solicitors for the respondents dated 10 May 2006 and an answering submission from the wife dated 18 May 2006. 

1. The respondents’ solicitors assert that their clients’ costs and disbursements total $13,637 which includes counsel’s fees of $4,576.  They indicate that they seek only an order for costs in the amount of counsel’s fees.

1. In her submissions in response the wife does not particularly direct us to any matters that are relevant for us to pay attention to in accordance with the provisions of s 117 of the Family Law Act1975 (Cth) but rather seeks to raise a number of matters that she hopes to ventilate in the principal proceedings.  The ventilation of those matters at this time does not assist us in determining the appropriateness or otherwise of an order for costs and its quantum arising out of the unsuccessful application for leave to appeal that we dealt with on 3 May 2006.

1. As we have already mentioned issues of costs are governed by s 117 of the Family Law Act1975 (Cth). That section empowers the court to make an order for costs if the court is of the opinion that there are circumstances that justify it so doing. The court is obliged by the provision of s 117(2A) to have regard to a number of matters set out in the legislation. In this case, given that the wife was wholly unsuccessful in her attempt to join the respondents to the application to proceedings between husband and wife so as to frustrate the respondents’ enforcement of a costs judgment obtained in the Supreme Court of New South Wales, we are of the view that it is appropriate that a costs order be made in their favour. This is notwithstanding the likely relative financial circumstances of both the wife and the applicants for costs.

1. We have not been given any breakdown of the calculation of counsel’s fees in the sum of $4,576 nor of the breakdown of the balance of the costs and disbursements incurred on behalf of the respondents.  It appears that there were two procedural hearings in the hearing before us.  We are not aware whether counsel attended at the procedural hearings.  We note that one counsel was retained to represent both respondents.  Having regard to the scale of costs contained in Schedule 3 to the Family Law Rules, we are of the view that an order for costs in favour of the respondents in the sum of $3,000 is appropriate.

1. The formal order of the court will be that the applicant wife pay $3,000 towards the respondents’ costs of and incidental to the application filed 4 October 2005 and dismissed on 3 May 2006.

I certify that the 8 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate