Spinner & Bader (No. 2)

Case [2021] FamCA 453

FAMILY COURT OF AUSTRALIA

Spinner & Bader (No. 2) [2021] FamCA 453

File number(s): MLC 6810 of 2015
Judgment of: MACMILLAN J
Date of judgment: 29 June 2021
Catchwords: FAMILY LAW – COSTS – where the husband seeks that the wife pay his costs on an indemnity basis – where the wife opposes the husband’s application – where the parties’ are each entitled to half of the net proceeds of sale of the former matrimonial home – where the wife was wholly unsuccessful – where the way in which the wife conducted her case lends weight to the husband’s case as to her lack of bona fides – where there are circumstances which justify an order for costs – where the wife continued to live in the property and deny the husband his entitlements for over four years – where the husband would not be adequately compensated by an order for party and party costs – where costs ordered are more generous than party and party but fall short of indemnity costs – where the wife is unlikely to accept the husband’s calculations as to the quantum of costs – where it is not appropriate for the husband to incur cost consultants fees – where the wife is ordered to pay the husband’s cost in a fixed sum incidental to the wife’s application pursuant to s79A.
Legislation:

Family Law Act 1975 (Cth) ss 79A, 117

Family Law Rules 2004 (Cth) rr 1.14, 19.18

Federal Circuit Court Rules 2001 (Cth) r 21.02

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Eames & Eames [2018] FamCAFC 204

Fountain Selected Meats (Sales) v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Kohan & Kohan [1993] FLC 92-340

Munday v Bowman [1997] FLC 92-784

Sfankianakis & Sfankianakis [2019] FamCAFC 54

Yunghanns & Yunghanns [2000] FLC 93-029
Number of paragraphs: 44
Date of last submission/s: 16 February 2021
Date of hearing: Written Submissions
Place: Melbourne

ORDERS

MLC 6810 of 2015
BETWEEN:

MS SPINNER

Applicant
AND:

MR BADER

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1.That leave be granted to the husband to rely upon his written submissions filed 28 January 2021.

2.That the wife pay the husband’s costs of and incidental to her application pursuant to s 79A fixed in the sum of $107,200.

3.That the wife pay the husband’s costs of his application for costs fixed in the sum of $2,900.

4.That the total costs payable by the wife to the husband pursuant to paragraphs 3 and 4 of this order in the sum of $110,100 to be paid to the husband out of her share of the net proceeds of sale of the property known as and situate at Property A Suburb H at settlement of the said sale.

5.The husband’s application for costs be otherwise dismissed and removed from the list of cases awaiting hearing.

Note:   The form of the order is subject to the entry in…

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AGLC
Spinner & Bader (No. 2) [2021] FamCA 453
Case
[2021] FamCA 453
Decision Date

CaseChat Overview and Summary

In *Spinner & Bader (No. 2)*, the husband sought an order that the wife pay his costs on an indemnity basis, while the wife opposed this application, arguing that each party should bear their own costs. The dispute arose from the wife's unsuccessful application pursuant to s 79A of the *Family Law Act 1975* (Cth) to vary final property orders concerning the former matrimonial home. The court was required to determine whether circumstances justified an order for costs against the wife, and if so, the appropriate basis and quantum of those costs.

Macmillan J considered the wife's conduct of the litigation, noting that she had been wholly unsuccessful and that her approach lent weight to the husband's case regarding her lack of bona fides. The court found that the wife had continued to live in the property and deny the husband his entitlements for over four years, and that an order for party and party costs would not adequately compensate the husband. While the circumstances did not warrant indemnity costs, the court determined that costs more generous than party and party costs were justified.

The court reasoned that it was not appropriate for the husband to incur further costs through a formal assessment process, given the wife's unlikelihood of accepting the husband's calculations and the potential for further expense. Consequently, the court fixed the costs payable by the wife. The wife was ordered to pay the husband's costs of and incidental to her s 79A application in the sum of $107,200, and the costs of his application for costs in the sum of $2,900, totalling $110,100. These costs were to be paid to the husband out of the wife's share of the net proceeds of sale of the former matrimonial home.

Orders

Orders of the court

MLC 6810 of 2015

BETWEEN:

MS SPINNER

Applicant

AND:

MR BADER

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS THAT:

1. That leave be granted to the husband to rely upon his written submissions filed 28 January 2021.

2. That the wife pay the husband’s costs of and incidental to her application pursuant to s 79A fixed in the sum of $107,200.

3. That the wife pay the husband’s costs of his application for costs fixed in the sum of $2,900.

4. That the total costs payable by the wife to the husband pursuant to paragraphs 3 and 4 of this order in the sum of $110,100 to be paid to the husband out of her share of the net proceeds of sale of the property known as and situate at Property A Suburb H at settlement of the said sale.

5. The husband’s application for costs be otherwise dismissed and removed from the list of cases awaiting hearing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This matter has a lengthy and complicated history including the husband’s numerous applications for enforcement of the final property orders made 26 August 2016 and the wife’s various applications to set aside those final property orders, the last of those applications being her Further Amended Initiating Application filed 5 June 2020. On 24 December 2020 I made orders dismissing the wife’s application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) and published my reasons (“the reasons”). I also made orders with respect to the parties filing submissions in support of any application for costs. The husband seeks an order that the wife pay his costs of and incidental to her application pursuant to s 79A. The wife opposes that husband’s application and it is her case that they should each bear their own costs. BACKGROUND The substantive background to this matter is outlined in detail in the reasons, including the proceedings brought by the husband to enforce the final orders, however for the purposes of this costs judgment a short history is necessary. On 26 August 2016 final orders were made by consent (“the final orders”). The effect of these orders was to divide the matrimonial assets equally between the parties. The most significant asset was the former matrimonial home at Property A Suburb H (“Property A”). The Property A was valued at approximately $3,000,000 and was unencumbered. The second asset of any significance was the business known as P Business (“the business”) which had been valued by Mr F. In his valuation dated 11 March 2016, Mr F valued the business firstly on the basis of its net tangible assets in the event that the parties were unable to renew the lease for the business premises, a figure of $112,000, and between $286,000 and $357,000 being the net tangible assets and goodwill based upon the lease having been renewed. Both parties relied upon Mr F’s affidavit filed on 1 March 2019 for the purposes of the hearing before me. The parties also had some superannuation entitlements. On 1 March 2019 the wife filed an Amended Application in a Case seeking leave pursuant to s 79A of the Act to vary paragraphs 2-3, 5-6, 9 and 12-14 of the final orders and upon leave being granted that the Property A be sold and the net proceeds of sale be divided as to 80/20 per centum in her favour instead of 50/50 as per the final property orders. On 21 October 2019 the wife’s Amended Application in a Case was dismissed and the wife was ordered to file and serve an Initiating Application in relation to any relief she sought pursuant to s 79A of the Act together with an affidavit setting out with particularity the evidence based upon which she said the final property orders should be set aside. On 6 November 2019 the wife filed an Initiating Application and an Affidavit in support of that application as she was ordered to do. In that application the wife sought orders inter alia for the variation of paragraphs 5 and 9 of the final orders pursuant to s 79A(1)(b) and/or (c) of the Act her case being that the Property A be sold and that she be entitled to 80 per centum of the net proceeds of sale. The wife filed an Amended Initiating Application on 17 April 2020 in which she sought orders setting aside paragraphs 5 and 9 of the final orders, the sale of the Property A and that she be entitled to 75 per centum of the proceeds. In her Further Amended Initiating Application filed on 5 June 2019 the wife sought orders setting aside 9 and 12-15 of the final orders. Husband’s Application to file his Written Submissions out of time

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The husband also seeks an order for the costs of his application for costs. The wife having opposed any order for costs has been wholly unsuccessful albeit the costs ordered are not indemnity costs. Whilst in my view the circumstances are not of the exceptional kind as to warrant an order for all of those costs on an indemnity basis it is in my view also reasonable, if not necessary, given the history of the matter that counsel who appeared at the hearing should be instructed to prepare the submissions in support of the application for costs. In these circumstances the cost of briefing counsel to prepare the submissions would in my view be minimal. In all of the circumstances I propose to allow counsel’s fees in the sum of $2,400 and a further amount of $500 on account of the solicitor’s costs, a total of $2,900. CONCLUSION I am satisfied that in this case, particularly given the way in which the wife has conducted the litigation even now repeating arguments the Court has rejected that I should fix the costs. I have no confidence that the wife would accept the husband’s calculations as to the quantum of his costs and that the assessment process would only add to the costs the husband has already incurred. Nor do I consider that in all of the circumstances of this case that the husband should be required to incur the costs of having the file assessed by a costs consultant and propose to accept the estimate of costs provided by the husband’s solicitor. In these circumstances I propose to make orders that the wife pay the husband’s cost of and incidental to the wife’s application pursuant to s 79A fixed in the sum of $107,200 and the costs of his application for costs fixed in the sum of $2,900. The costs will be paid to the husband out of the wife’s share of the net proceeds of sale of the Property A.

Ratio Decidendi

Legal Principle Established

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