Strand & Kristensen
[2023] FedCFamC1F 881
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Strand & Kristensen [2023] FedCFamC1F 881
File number: SYC 5380 of 2017 Judgment of: REES J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – COSTS – Where previous orders were made dismissing the Applicant’s Initiating Application – Where previous orders were made for the parties to bear their own costs of the proceedings – Where the Applicant’s Initiating Application was reinstated - Where the Applicant’s Initiating Application was dismissed by consent at final hearing – Where costs are to be assessed from a specific date – Orders for the Applicant to pay the Respondent’s costs incurred from a specific date Legislation: Family Law Act 1975 (Cth), s 117(2A)
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021, Rule 12.13
Division: Division 1 First Instance Number of paragraphs: 25 Date of last submission/s: 14 October 2023 In Chambers: 18 October 2023 Place: Sydney Solicitor for the Applicant: Alexander Maroulis Lawyers Solicitor for the Respondent: Lonsdale & Associates Lawyers ORDERS
SYC 5380 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STRAND
Applicant
AND: MR KRISTENSEN
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS:
1.That the applicant, Mr Strand, pay the costs of the respondent, Mr Kristensen, incurred after 20 August 2021, as taxed or agreed and that:
(a)Such costs be paid within 30 days of the issue of the assessment or of agreement.
(b)This order does not include costs of the preparation of the response to the costs application.
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 a pseudonym Strand & Kristensen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Strand, ("the applicant") and Mr Kristensen, ("the respondent"), settled proceedings relating to the property of their de facto relationship on 31 July 2023, on the basis that all extant applications, except in relation to costs, were dismissed.
The parties were directed to file written submissions and any evidence upon which they relied in relation to costs and I indicated that I would deal with the competing applications for costs in chambers.
The applicant seeks an order that the respondent pay his costs and relies on an affidavit by his solicitor sworn 8 September 2023 and written submissions.
The respondent seeks an order that the applicant pay his costs and that the applicant pay the costs of the second respondent and relies on an affidavit sworn by his solicitor sworn 6 October 2023 and written submissions.
Since neither party has specifically sought indemnity costs and neither has complied with the provisions of Rule 12.13 of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 ("the Rules"), the respective applications will be dealt with as applications for party and party costs.
Each party has made submissions directed to the costs of the whole of the proceedings which were initiated in 2017. Neither has turned his attention to the procedural history.
On 9 August 2021, the matter was listed before Wilson J. On that day, his Honour made the following orders:
1. All prior orders are hereby discharged.
2.Pursuant to Rule 11.02 of the Family Law Rules 2004 this proceeding is dismissed.
3.Pursuant to s 117(1) each party must bear his, her and its own costs of this proceeding.
There was no appeal from those orders.
On 20 August 2021, the applicant filed an application to re-instate the proceedings. On 31 March 2022, a Judicial Registrar made orders, relevantly:
1.The 3rd and 4th Respondents are granted leave to rely on the written submissions annexed to the affidavit of [Ms B Kristensen] filed 24 January 2022.
2.The Initiation application [sic] filed by the Applicant on 21 August 2017, as amended on 4 February 2021, is reinstated.
3.The Applicant is to pay the 3rd Respondents costs of and incidental to the following on a party/party basis as agreed or assessed;
a.Court attendance on 7 July 2021
b.Court attendance on 9 August 2021
c.Preparation of the Response to the Application in a Proceeding filed on 7 September 2021 by the 3rd and 4th respondents.
4.The costs determined in accordance with order (3) are to be paid within 28 days of being agreed or assessed.
The order made by Wilson J on 9 August 2021 in relation to costs remained in force. Thus any application for costs before me can only relate to costs incurred after 9 August 2021. Since the application to reinstate was not filed until 20 August 2021, the respondent's claim for costs starts on that date.
The application falls to be dealt with according to the terms of s117(2A) of the Family Law Act 1975 (Cth), ("the Act"), which is set out below:
(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.
The applicant swore a Financial Statement on 11 July 2023. He deposed to an income of $3,020 per week and expenses of $2,877. He has no assets other than an interest in superannuation of $118,036.
The respondent swore a Financial Statement on 8 July 2023, deposing to an income of $195 per week and expenses of $150 per week. The respondent deposed to assets of $1,200.
It is well settled that impecunity is no bar to the making of an order for costs.
Neither party was in receipt of legal aid.
Whilst each party complains of the conduct of the other, neither has distinguished between the conduct of a party generally and the conduct of the litigation which is the focus here.
Significantly, the applicant has been wholly unsuccessful. His application was dismissed. He received no money. The costs which have incurred as a result of the applicant's prosecution of the application were thrown away.
The matter was listed for final hearing on 31 July 2023. The applicant relies on an offer of settlement made under cover of a letter dated 26 July 2023. By this time, all of the respondent's trial affidavits and the respondent's Outline of Case Document had been filed.
Under the heading, "Calderbank Offer" the letter stated,
The Applicant proposes that that the proceedings between the Applicant and the First Respondent (not the Second respondent) be discontinued with no Costs Order against each party.
That offer was not accepted.
In written submissions, the solicitor for the respondent makes reference to an offer made on 30 May 2021 to the effect that the application be withdrawn and each party pay his own costs. However, the letter of offer was not referred to or annexed to the solicitor's affidavit.
After 31 March 2022, considerable costs were incurred by the respondent as a result of the application's being reinstated and pursued. Those costs were wasted when the application was dismissed. The applicant was therefore wholly unsuccessful and he should pay the respondent’s costs.
Because I have been provided with no information on which to make any meaningful assessment of what those costs should be, the costs, unless agreed, will be assessed.
In the event that the second respondent seeks an order for costs, then he must make an application himself.
Because neither solicitor had turned his or her mind to the orders made by Wilson J on 9 August 2021, the bulk of the submissions and the evidence before me was directed to events occurring before that date and therefore of no assistance in determining the issue before me. It is not appropriate that the costs of the preparation of the application for costs be included in the assessable costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 18 October 2023
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