Sutton & Sutton & Anor
[2013] FamCAFC 176
•5 November 2013
FAMILY COURT OF AUSTRALIA
| SUTTON & SUTTON AND ANOR | [2013] FamCAFC 176 |
| FAMILY LAW – APPEAL – COSTS CERTIFICATES – where the wife appealed against property settlement orders and the husband sought leave to appeal against orders staying those property settlement orders in part – where both appeals were heard by the Full Court and judgment was reserved – where the parties subsequently reached agreement and filed Minutes of Order which the Full Court now makes to finalise the two appeals – where the wife, the husband and the husband’s partner (who was the second respondent in the substantive appeal) each seek a costs certificate in the substantive appeal, and the wife and the husband each seek a costs certificate in the stay appeal – where the Full Court was satisfied the discretion to grant costs certificates should be exercised in favour of the wife and the husband in both appeals, given each were required to undertake significant work in the appeals and incurred legal costs as a result – where the Full Court declined to grant the husband’s partner a costs certificate as the wife did not appeal against the order dismissing her application pursuant to s 106B of the Family Law Act 1975 (Cth) to set aside a property transfer by the husband to his partner and thus, the written and oral submissions made on behalf of the husband’s partner were unnecessary. |
| Family Law Act 1975 (Cth) ss 106B and 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9 |
| B & B (Costs Certificates) (2007) FLC 93-339 |
| APPELLANT/FIRST RESPONDENT: | Ms Sutton |
| FIRST RESPONDENT/APPELLANT: | Mr Sutton |
| SECOND RESPONDENT: | Ms Dixon |
| FILE NUMBER: | SYC | 1584 | of | 2010 |
| APPEAL NUMBERS: | EA | 79 | of | 2012 |
| EA | 123 | of | 2012 |
| DATE DELIVERED:: | 5 November 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 8 July 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 June 2012 30 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 454 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/ FIRST RESPONDENT: | Mr Campton |
| SOLICITOR FOR THE APPELLANT/ FIRST RESPONDENT: | E H Tebbutt & Sons |
| COUNSEL FOR THE FIRST RESPONDENT/APPELLANT: | Mr Kearney SC |
| SOLICITOR FOR THE FIRST RESPONDENT/APPELLANT: | Barkus Doolan Kelly |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE SECOND RESPONDENT: | Meyer Partners Family Lawyers |
UPON NOTING that paragraph 1 of the orders made by Justice Rees on 15 February 2013 was expressed to be until further order and will no longer operate upon the making of these orders
IT IS ORDERED BY CONSENT
That the Appeal No. EA 79/2012 be allowed.
That the Appeal No. EA 123/2012 be allowed.
That the orders of Coleman J made 8 June 2012 be varied as follows:
(a) That orders 3, 4 and 5 be deleted and substituted with the following:
3. That within 28 days of the date of these orders and simultaneously, the husband and wife do all acts and things and sign all documents necessary to give effect to the following:
3.1the husband to transfer to the wife the whole of his right, title and interest in and to the property known as [Property 1, C Street, Suburb N];
3.2the wife discharge the mortgage secured upon the title to the property known as [Property 1, C Street, Suburb N] and cause the husband to be released from any personal covenant or guarantee given to the lender in respect of same;
3.3the wife discharge the mortgage secured upon the title to the property known as [Property 1, C Street, Suburb N] and cause the husband to be released from any personal covenant or guarantee given to the lender in respect of same;
3.4the husband pay or cause to be paid to the wife the sum of $400,000 from the funds held in the trust account of the husband's solicitor such that the husband is otherwise solely entitled to the balance except as otherwise provided for in orders 4 and 5 hereof.
4.That pending completion of the transfer of [Property 1, C Street, Suburb N], the husband pay all mortgage instalments, council and water rates with respect to the said property, save that in the event that the wife defaults on her obligations pursuant to order 3 hereof, that the husband’s responsibility to meet same is terminated as and from the date 28 days from the date of the making of these orders and the wife shall be responsible for and indemnify the husband in respect of the mortgage, insurances, water and council rates for the said property. On receipt of the transfer of [Property 1, C Street, Suburb N], the husband will present to the wife all notices necessary or required to show the said payments in respect of the properties have been made to that date. In the event that the husband has failed to make any of the due payments, then those funds shall be paid forthwith from the balance of funds held in the trust account of Barkus Doolan on behalf of the husband.
5.That pending completion of the transfer of [Property 1, C Street, Suburb N], the husband pay all mortgage instalments, council and water rates with respect to [Property 2, C Street, Suburb N], save that in the event that the wife defaults on her obligations pursuant to order 3 hereof, that the husband’s responsibility to meet same is terminated as and from the date 28 days from the date of the making of these orders and the wife shall be responsible for and indemnify the husband in respect of the mortgage, insurances, water and council rates for [Property 2, C Street, Suburb N]. The husband will present to the wife all notices necessary or required to show the said payments in respect of the properties have been made to the due date. In the event that the husband has failed to make any of the due payments, then those funds shall be paid forthwith from the balance of funds held in the trust account of Barkus Doolan on behalf of the husband.
(b) Addition of an order 15:
15. That in respect of [Company M]:
15.1the wife shall forthwith do all acts and things and sign all documents necessary and deliver to the husband documents as required so as to:
(iii)15.1.1 resign from any office held by her in [Company M];
(iv)15.1.2 transfer to the husband all of her shareholding in [Company M].
15.2 that the husband thereafter indemnify and keep indemnified the wife against all or any manner of actions, suits, cause of action, arbitration, debts, costs and demands whatsoever arising from any acts or things done by the husband as a shareholder, director, office holder or employee of [Company M] or any other company of which the husband and wife were directors or shareholders during the marriage, and any guarantees which have been given by the wife relating to [Company M] in respect of any financial liability of the husband or any other company of which he has been a director and/or shareholder.
That in respect of the orders of Coleman J made 30 August 2012:
(a) paragraph 3 of those orders be discharged forthwith;
(b)paragraph 1 of those orders be discharged on compliance by the husband with paragraph 3, 4 and 5 of the orders of Coleman J made 8 June 2012 (as varied by paragraph 3 of these Orders made by the Full Court).
AND IT IS FURTHER ORDERED
In accordance with s 117(1) of the Family Law Act 1975 (Cth) each party bears his or her own costs.
In appeal number EA 79 of 2012 the Court grants to the wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect to the costs incurred by the wife in relation to the appeal.
In appeal number EA 79 of 2012 the Court grants to the husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect to the costs incurred by the husband in relation to the appeal.
In appeal number EA 123 of 2012 the Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect to the costs incurred by the husband in relation to the appeal.
In appeal number EA 123 of 2012 the Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect to the costs incurred by the wife in relation to the appeal.
The application by the second respondent for a costs certificate in appeal number EA 79 of 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sutton & Sutton and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 79 & 123 of 2012
File Number: SYC 1584 of 2010
| Ms Sutton |
Appellant/First Respondent
And
| Mr Sutton |
First Respondent/Appellant
And
| Ms Dixon |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 26 June 2012 Ms Sutton (“the wife”) appealed against orders for property settlement made by Coleman J on 8 June 2012.
By Notice of Appeal filed on 27 September 2012 Mr Sutton (“the husband”) sought leave to appeal and if leave was granted, to appeal against orders also made by Coleman J on 30 August 2012 staying certain of the orders made on
8 June 2012, but refusing to stay other orders made on that day, and setting out conditions for the continued operation of the stay that was granted.
Both appeals were heard by this court on 8 July 2013 and judgment was reserved. Subsequently the parties reached agreement and filed two sets of Minutes of Order, one set disposing of the appeals and the other set attempting to finalise outstanding costs applications in the first instance proceedings. This court of course could only make the orders sought in relation to the appeals, but unfortunately the Minutes of Consent Order were not in a form that could be made by this court and there were also a number of obvious errors in those orders. After two attempts to have the solicitors correct the errors and alter the format, although they are still not entirely accurate, we propose to make orders by consent finalising the two appeals but making one minor adjustment to the orders as sought.
As to the issue of costs, at the hearing of the appeals the wife sought that the husband pay costs if she was successful, the husband sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) in the event that the substantive appeal was successful and either a costs order against the wife or a costs certificate if the stay appeal was successful, and the husband’s partner Ms Dixon (“the second respondent”) sought a costs certificate if the substantive appeal was successful (she took no part in the stay appeal albeit she was named as a respondent). Given that the Minutes of Consent Order provide for both appeals to be allowed, no party now seeks a costs order but rather, the wife, the husband and the second respondent each seeks a costs certificate in the substantive appeal, and the wife and the husband each seek a costs certificate in the stay appeal. Appropriately, the granting or not of costs certificates has been left to this court to determine.
The applications for costs certificates
The relevant sections of the Costs Act are s 9 for an appellant and s 6 for a respondent. As was identified in B & B (Costs Certificates) (2007) FLC
93-339, there are three matters which by reference to s 9 and s 6 of the Costs Act must be satisfied before a costs certificate can issue, namely:
a)the existence of a Federal appeal;
b)that the appeal has succeeded on a question of law; and
c)that the court concerned should have heard the appeal.
In addition, pursuant to s 9(1)(b) of the Costs Act, for a costs certificate to issue to an appellant, each party to the appeal has to bear his or her own costs.
As to the latter issue, that is satisfied here. In neither appeal does any party now seek an order for costs, and there is no basis for this court to displace
s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) by exercising the discretion under s 117(2) of the Act. We are satisfied that it is appropriate to make an order that each party bear their own costs pursuant to s 117(1) of the Act, as the parties have now effectively agreed.
Turning to the three matters arising from both s 9 and s 6 of the Costs Act, it is beyond doubt that the first and third of those matters are satisfied here. With the second matter it is apparent from the consent orders that both appeals are being allowed on a question of law. Having revisited the two sets of reasons for judgment of the trial Judge, and the grounds of both appeals, and reflected on the written and oral submissions of the wife and the husband, we are satisfied of that.
In these circumstances the only question that remains is whether the discretion that this court has in deciding whether or not to grant costs certificates should be exercised in favour of all parties.
There is no doubt that the discretion to grant costs certificates should be exercised in favour of the wife and the husband in both appeals. The wife of course was the appellant in the substantive appeal and the first respondent in the stay appeal, and the husband was the appellant in the stay appeal and the first respondent in the substantive appeal. They were required to each undertake significant work in these appeals and necessarily incurred legal costs as a result. However, that cannot be said about the husband’s partner as second respondent to the wife’s appeal. Although she filed a written summary of argument and her counsel appeared at the hearing and made oral submissions, we consider that this was entirely unnecessary. There was no appeal by the wife against the order dismissing her application pursuant to s 106B of the Act to set aside the transfer by the husband to the second respondent of a one half interest in the property situated at Suburb A, and thus the most she could do was support the husband in opposing the appeal, which she did. However, it is certainly not for the taxpayer to meet the costs of that involvement.
We propose to grant costs certificates to the wife and the husband but not to the second respondent.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Murphy JJ) delivered on 5 November 2013.
Associate:
Date: 5 November 2013
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