Seidler and Seidler

[2013] FamCA 307

FAMILY COURT OF AUSTRALIA

SEIDLER & SEIDLER [2013] FamCA 307

FAMILY LAW – COSTS – Offer of settlement – Where the offer was rejected – Where the terms of the offer were almost identical to the final orders made by the Court.

Family Law Act 1975 (Cth) s 117(1), s 117(2)(a)-(g).

APPLICANT: Ms Seidler

RESPONDENT: Mr Seidler

FILE NUMBER: TVC 1240 of 2007

DATE DELIVERED: 25 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Ross
Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT: Mr Page of Senior Counsel

SOLICITOR FOR THE RESPONDENT: Morton & Morton

Orders

1. The husband pay the wife’s costs in the proceedings, calculated by reference to the Family Court Schedule of Costs, as agreed or assessed, from the 17th day of June 2011.

2. There be no order as to the costs of the hearing today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seidler & Seidler  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 1240 of 2007

Ms Seidler

Applicant

And

Mr Seidler

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Today I am asked to decide an application by the wife, in property proceedings that have been heard and determined by the Court, for the husband to pay her costs in connection with the proceedings. The wife’s application is made in a number of alternative forms which I would describe as a ‘trickle down’ type of application. In the first instance, she asks for costs on an indemnity basis, ultimately trickling down, in the alternative form, to an application for costs as agreed by the parties or assessed by the Court according to scale. 

2. In addition, the ‘trickle down’ nature of her application also relates to the time from which a costs order would apply. At its highest, the wife’s application seeks costs of and incidental to the entire proceedings. In the final alternative, she asks the Court to make an order that the husband pay her costs at least from a time much closer to the dates on which the trial took place in the matter.

3. The matter was heard over two days by me in June 2011. Final judgment was handed down nearly a year later in 2012 and the terms of the orders in their final form took some time thereafter to actually finalise and be pronounced. The parties were given the opportunity, after my reasons were published, to agree on the terms of the final orders. They were unable to do so and eventually asked me to make orders as determined appropriate. 

4. The factual basis upon which the wife’s application for costs is essentially founded is that the parties, from very early after their separation, had agreed to divide a reasonably substantial pool of property equally between them.  However, for a number of years, notwithstanding principal agreement that they divide their property equally between them, they were unable to actually achieve a settlement because they could not agree on the mechanics of the division and the actual value of items making up the pool of property being divided. 

5. The settlement negotiations aimed at achieving an equal division between the parties essentially broke down in or around 2010 when the husband said that he no longer maintained that the property should be divided between them on an equal basis and that he was going to press his application to the Court for a 70/30 division in his favour. 

6. On 6 June 2011, the wife filed an Amended Response to the husband’s Initiating Application in which she set out the orders that she was asking the Court to make.  On 9 June 2011, a few weeks before the trial commenced, the wife filed her trial affidavit in which she again set out in particular terms the exact nature of the orders that she sought to effect what she was asserting was an equal division of the property. 

7. On 9 June 2011, the wife’s solicitor, Ms Murray, also caused an offer of settlement, which she describes as “an open offer of settlement”, to be forwarded to the husband’s solicitors who were acting for him then. They are not the same solicitors who are now acting for him. In that offer of settlement, the orders that the wife sought in her Amended Response were set out and an offer made to the husband to settle on those terms. 

8. Settlement was not achieved and when the trial commenced before me the wife asked for orders from the Court in those terms. When the trial commenced before me the husband asked for orders granting him 55% of the property. He contended that the property pool included some items of property that the wife did not accept. Ultimately, those arguments were decided against the husband.

9. Ms Murray has sworn and filed an affidavit in support of this costs application. She deposes to the opinion that the terms of the orders that the Court ultimately made are almost identical to the orders that the wife sought in her Amended Response I have just referred to.  Mr Page of Senior Counsel has not taken issue at all with that opinion proffered by Ms Murray.  I accept that is the case.

10. I am indeed mindful that s 117(1) of the Family Law Act sets out the general principle that in proceedings under the Act each party to the proceedings shall bear his or her own costs.  However, that is clearly subject to the Court being granted the discretion, where it considers that there are circumstances that justify it in doing so, to make such orders as to costs that the Court considers just.  In making such a determination, the Court is, via s 117(2A) mandated to have regard to a number of things that are set out in (a) through to (g) therein.

11. Having regard to all of the evidence in this case as it falls to be considered pursuant to s 117(2A)(a) through to (g), I have arrived at the determination that in this case an order of costs against the husband is indeed just.

12. As fell from me during discussions with senior counsel for the husband this morning, getting a final result better than an offer or at least equal to the position that has been offered prior to trial is what ultimately I find to be the most significant point influencing me to make an order for costs in this case. Prior to the trial, the wife offered to settle the proceedings on particular terms. Those terms were almost identical to the terms of the orders ultimately made in the case.   The money the wife spent from shortly after having made such an offer until the orders were made was money that she would not have to have spent had the husband accepted her offer.

13. Accordingly, allowing for a week after the offer was sent to the husband’s solicitors as representing the time that I consider a reasonable period within which the husband should have been able to take and consider advice as to the merits of the wife’s offer, I will order that the husband pay the wife’s costs of and incidental to the proceedings from that date to be agreed or assessed by reference to the Court’s scale of costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 February 2013.

Associate: 

Date:  29 April 2013