Suess & Suess (No 2)

Case [2024] FedCFamC1F 515

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Suess & Suess (No 2) [2024] FedCFamC1F 515

File number(s): PAC 3016 of 2022
Judgment of: BERMAN J
Date of judgment: 1 August 2024
Catchwords: FAMILY LAW – COSTS – Circumstances justifying an order – Where the Court found the financial agreement was binding pursuant to s 90G(1B) of the Family Law Act 1975 (Cth) – Where the wife’s Initiating Application was dismissed – Where the husband now seeks costs on an indemnity basis – Where the Court finds the wife was wholly unsuccessful – Where the Court finds that the wife’s case was arguable – Consideration of indemnity or scale costs – Costs awarded on a party/party basis.
Legislation:

Family Law Act 1975 (Cth) ss 78, 79, 117, 90K, 90G

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31

Hoult & Hoult (2013) FLC 93-546

Jackamarra & Krakouer [1998] HCA 27

Kohan & Kohan (1993) FLC 92-340

Licul v Corney (1976) 180 CLR 213

Prantage & Prantage (2013) FLC 93-544

Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151

Robinson & Higginbotham (1991) FLC 92-209

Suess & Suess [2024] FedCFamC1F 175

Tudor & Tudor (1992) FLC 92-273

Division: Division 1 First Instance
Number of paragraphs: 85
Date of hearing: 9 July 2024
Place: Adelaide via MS Teams
Counsel for the Applicant: Mr Dura SC
Solicitor for the Applicant: Walkden Law and Mediation
Counsel for the Respondent: Ms Clarke
Solicitor for the Respondent: LCI Legal

ORDERS

PAC 3016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SUESS

Applicant
AND:

MR SUESS

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1.Ms Suess (“the wife”) pay to Mr Suess (“the husband”) his costs fixed in the sum of ONE HUNDRED AND TWO THOUSAND FIVE HUNDRED AND SEVENTY-SEVEN DOLLARS AND SIXTY NINE CENTS ($102,577.69).

2.The balance of the settlement sum payable to the wife in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) be retained by the husband in part satisfaction of order 1 herein.

3.The balance of TWO THOUSAND FIVE HUNDRED AND SEVENTY SEVEN DOLLARS AND SIXTY NINE CENTS ($2,577.69) be payable to the husband within twenty eight (28) days of this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or…

Continue reading Suess & Suess (No 2)

Sign in free to access the full text

Details
AGLC
Suess & Suess (No 2) [2024] FedCFamC1F 515
Case
[2024] FedCFamC1F 515
Decision Date

CaseChat Overview and Summary

The case of Suess & Suess (No 2) involved a dispute between Ms Suess (the wife) and Mr Suess (the husband) regarding the interpretation and enforcement of a financial agreement. The matter was heard and determined by Berman J in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the husband was entitled to costs on an indemnity basis following the dismissal of the wife’s application, which sought an outcome in respect of certain paragraphs of the Amended Application. The court was required to consider whether the wife's case was frivolous, arguable, and if the circumstances justified an order for costs.

The court found that the wife was wholly unsuccessful in her application, but her case was arguable. It was acknowledged that the wife had a reasonable basis to question the valuation and disclosure of certain assets, given the less rigorous approach taken by the parties in negotiating their financial agreement compared to a court-determined order. However, the wife's former solicitor's deficient professional conduct further complicated the matter. Given the arguable nature of the wife's case and the significant costs incurred by the husband, the court concluded that it would be unjust and inequitable to award costs on an indemnity basis. Instead, the court opted to assess costs on a party/party or scale basis, considering the husband's significant solicitor/client costs. The court also took into account the remaining settlement sum of $100,000 owed to the wife, directing that part of this sum would be used to satisfy the husband's costs.

In light of the above considerations, the court ordered that Ms Suess pay Mr Suess $102,577.69 in costs, with $100,000 of this amount being retained by the husband from the settlement sum payable to the wife. The remaining $2,577.69 was to be paid by the wife within 28 days of the order. This decision balanced the need to recognise the arguable nature of the wife's case with the significant costs incurred by the husband, ensuring a fair and equitable outcome.

Orders

Orders of the court

PAC 3016 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SUESS

Applicant

AND:

MR SUESS

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1. Ms Suess (“the wife”) pay to Mr Suess (“the husband”) his costs fixed in the sum of ONE HUNDRED AND TWO THOUSAND FIVE HUNDRED AND SEVENTY-SEVEN DOLLARS AND SIXTY NINE CENTS ($102,577.69).

2. The balance of the settlement sum payable to the wife in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) be retained by the husband in part satisfaction of order 1 herein.

3. The balance of TWO THOUSAND FIVE HUNDRED AND SEVENTY SEVEN DOLLARS AND SIXTY NINE CENTS ($2,577.69) be payable to the husband within twenty eight (28) days of this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The wife was wholly unsuccessful in seeking an outcome in respect of paragraphs 1 to 4 inclusive of the Amended Application.CONCLUSION I do not find that the wife’s application was frivolous, or she intended to “chance her hand”. In the decision of Jackamarra & Krakouer [1998] HCA 27, the High Court considered the meaning of “an arguable case” and found favour with the proposition that “once it appears that there is a real question whether a fact or law and that the rights of the parties depend on it, then it is not competent for the Court to dismiss the action”. I consider that the wife was wholly unsuccessful notwithstanding that her case was arguable. It is a relevant countervailing factor that there was likely to have been property either not disclosed or not brought to account that justified a reasonable enquiry by the wife. It is now an unfortunate observation that the wife’s former solicitor, Ms B, was of little assistance to her highlighted by Ms B’s own admission that her professional conduct was deficient. No attempt was made by either of the parties, or those that assisted in negotiating the terms and conditions of the financial agreement, as to any valuation rigor. It is a telling observation to compare the level of enquiry that would have been made in respect of a court determined order pursuant to s 79 and the less disciplined approach adopted by the parties in respect of their financial agreement. It is appropriate for an order to be made in favour of the husband’s application for costs limited to the costs incurred as reasonably required in preparation for the trial. In that regard, I consider that costs should be payable on a party/party or scale basis as opposed to indemnity costs. The wife’s case was arguable and whilst I accept that the husband has incurred costs on a solicitor/client basis representing a significant difference to costs assessed on scale, the justice and equity of the circumstances of the parties is such that I should reject the husband’s application for costs to be assessed on an indemnity basis. I make reference to the itemised costs schedule annexed to the husband’s affidavit of 12 April 2024. I propose to assess the costs payable by the wife by reference to the following invoices: Given that the husband retains a further settlement sum payable to the wife in the sum of $100,000 I consider it a proper outcome that the husband’s costs are paid in part from that amount. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.