Thomas & Hamilton

[2008] FamCA 812

FAMILY COURT OF AUSTRALIA

THOMAS & HAMILTON [2008] FamCA 812

FAMILY LAW – COSTS - Application – where first instance decision subject of successful appeal – where offers made

Family Law Act 1975 (Cth)

APPLICANT: Mr Thomas

RESPONDENT: Ms Hamilton

FILE NUMBER: SYF 2071 of 2004

DATE DELIVERED: 26 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 16 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Twigg

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT: Mr Frakes

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. The husband’s application for costs filed on 5 October 2007 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Thomas & Hamilton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2071 of 2004

MR THOMAS

Applicant

And

MS HAMILTON

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed on 5 October 2006 by the husband seeking an order that the wife pay his costs of and incidental to the proceedings for property settlement on a solicitor client basis.

2. On 22 February 2008 the wife filed a response seeking that the husband’s cost application be dismissed and that he pay the wife’s costs of the property proceedings. That application was abandoned in the proceedings before me. The case to be determined, therefore, is that of the husband.

3. On 7 September 2006 I delivered judgment in the property proceedings. That decision was the subject of a successful appeal to the Full Court.

4. The principal basis upon which a costs order is sought is the “offer of compromise” made by the husband in the lead up to the trial and afterwards. Four offers were made by the husband on the following dates: 8 June 2004, 2 August 2004, 15 February 2005 and 7 August 2006. The effect of the successful appeal was that the husband was required to pay the wife a total of $148,062 which was some $81,831 more than I had ordered.

5. In support of his application for costs the husband also filed an affidavit by Ms H. In that affidavit Ms H sets out certain conversations she had with the wife during 2003 where she said the wife had told her, “I’ll have my day in court”. There were other statements attributed to the wife. This evidence then grounds a submission on behalf of the husband that the wife was at no time interested in endeavouring to compromise the proceedings with the husband.

6. The husband also says that as a result of the effluxion of time the wife’s interest in K Pty Ltd (an asset retained by her) has become substantially more valuable than was calculated at the time of the hearing. The principal asset of that company is a property which was valued at $1.4 million for the purposes of the trial. That property was sold following the trial for $4.1 million.

7. It was submitted that the case took longer than it might have been expected to take because of the wife’s argument about the commencement date of cohabitation. This is said to be another reason to make a costs order against her.

8. No submission is made that an offer made by the husband, as referred to in the affidavit of his solicitor, Mr Twigg, sworn on 5 October 2006, represented a better outcome for the wife than that which she ultimately achieved following the Full Court appeal.

9. The last offer made on 7 August 2006 is asserted to have provided a potential result for the wife which was very close to the ultimate result which she received from the Full Court. However, this offer was made after the hearing before me concluded and before judgment was delivered.

10. Each of the parties addressed the relevant provisions in s 117(2A) of the Family Law Act 1975 (Cth). As stated earlier in these reasons, the husband relies particularly on an assertion that the wife was apparently not interested in settling the case. The evidence before me does not establish that was the case after 2003.

11. Had the wife not successfully appealed, it seems that the husband was on strong ground for an order for costs based on his offers of compromise.

12. Although the financial circumstances of the parties have changed significantly following the hearing before me, it is not a matter which in the circumstances of this case, would cause me to exercise my discretion in favour of the husband and make an order for costs.

13. In all of the circumstances I am not satisfied that an order should be made for costs as sought by the husband and accordingly, I dismiss the husband’s application.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:  …

Date:  25 September 2008