Thurston and Loomis and Anor (No. 2)

[2018] FamCA 77

FAMILY COURT OF AUSTRALIA

THURSTON & LOOMIS AND ANOR (NO. 2) [2018] FamCA 77

FAMILY LAW – COSTS – Where the Respondent was previously ordered to pay Intervener’s costs of and incidental to his Application in a Case – Where the Intervener seeks costs in the total sum of $9,071.81 and Respondent asserts it is only reasonable to pay $1,970.59 – Where no agreement was reached between them – Where it is not accepted that all work said to have been done was “of and incidental” only to the Application in Case – Where costs fixed in the amount of $3,344 are to be paid out of Respondent’s entitlement to property – Where the Intervenor seeks that the Respondent pay interest on all unpaid costs from now until their payment – Where it is only found to be appropriate for interest to be paid on the costs order qualified in this judgement – Where the Intervener seeks that the Respondent pay costs in respect of the negotiations and further hearing of submissions in this application for costs – Where the court found that a costs order is not justified in the circumstances.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Thurston

RESPONDENT: Mr Loomis

INTERVENER: ML Lawyer

FILE NUMBER: BRC 1010 of 2012

DATE DELIVERED: 21 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 February 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT:

In Person

SOLICITOR FOR THE INTERVENER:

Mr ML

ML Lawyer

Orders

1. That the quantum of ML Lawyer’ costs to be paid by Mr Loomis pursuant to Orders made on 19 January 2018, is fixed in the sum of $3,344.

2. That interest is payable on that sum of $3,344, at the rate prescribed by the applicable Rules of Court, from 19 January 2018 until the date of payment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston & Loomis & Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1010 of 2012

Ms Thurston

Applicant

And

Mr Loomis

Respondent

And

ML Lawyer

Intervener

REASONS FOR JUDGMENT

1. On 19 January 2018, I made orders and delivered reasons for judgment on an application for costs made by ML Lawyer against Mr Loomis in this matter.

2. I ordered that Mr Loomis pay ML Lawyer’s costs of and incidental to his Application in a Case filed in these proceedings on 25 January 2016 with the quantum of such costs to be fixed by agreement between Mr Loomis and ML Lawyer or, failing agreement, as fixed by me.

3. There has been no agreement.

4. ML Lawyer have filed an affidavit attaching a schedule of the costs they assert they are entitled to, calculated in accordance with the relevant scale of costs provided for in the Family Law Rules (“the Rules”). Mr Loomis has filed an affidavit that attaches that identical schedule but which also includes the amount that he submits that ML Lawyer should reasonably receive. That attachment also included, effectively, submissions he made in respect of why the amounts claimed by ML Lawyer should not be allowed.

5. ML Lawyer claim the sum of $9,071.81. Mr Loomis asserts that they should only reasonably receive the sum of $1,970.59.

My Consideration of the Claim

1. After having heard oral submissions and read the respective material filed and relied upon by ML Lawyer and Mr Loomis, as well as, in particular, having gone through the schedule of claimed expenses and having considered the documents referred to in that schedule as having been read, scanned, and/or produced by ML Lawyer against the reasonableness of the assertion that the work done was “of and incidental” to the unsuccessful Application in a Case of Mr Loomis filed on 25 January 2016, I have determined to make the order for Mr Loomis to pay ML Lawyer’ costs fixed at $3,344.

2. I do not consider it necessary for me to go through each and every item in the schedule of 24 items explaining exactly why it is that I have only allowed part of the amount claimed and why, in particular, I have fixed on the particular quantum that I have in respect of that item.

3. Suffice is to say, in my judgment, that I have not accepted that all of the work said to have been done on each item was “of and incidental” only to the Application in a Case filed on 25 January 2016. Some of it, I am satisfied, related to the application of ML Lawyer in respect of which I already dismissed their application for costs. Some of the work claimed to have been done, I have not considered necessary for ML Lawyer to reasonably respond to Mr Loomis’s unsuccessful Application in a Case. The best example of that was the downloading from the Courts’ Portal the written submissions of Mr Loomis filed in the substantive property proceedings and the claim for reading all of those very lengthy submissions. Only a very small part of those had any relationship to ML Lawyer and Mr ML himself conceded at the hearing of submissions on 16 February 2018 that he wanted to read them because he was particularly “interested” in the case.

4. The fixing of the sum to be paid at $3,344 will take the total of costs Mr Loomis is now liable to pay ML Lawyer pursuant to Orders of the Federal Circuit Court, this Court and the Full Court of this Court to $20,335.

5. Mr ML submits that the Court should also make an order clearly imposing an obligation on Mr Loomis to pay interest on all of the unpaid costs from now until they are paid pursuant to the provisions of the Rules.  

6. That issue, however, is determined in the first instance by s 117B of the Family Law Act as well as the provisions of the Rules. Section 117B provides:

   Interest on moneys ordered to be paid

   (1)Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:

   (a)       the date on which the order is made; or

   (b)       the date on which the order takes effect;

   whichever is later, on so much of the money as is from time to time unpaid.

(2)A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first-mentioned order or may order:

(a)that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or

(b)that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).

1. I do not consider that I am thereby empowered to make any order with respect to interest on the costs orders that the FCC and the Full Court have made, though I am satisfied that I can make an order with respect to interest on the costs order that I am quantifying in this judgment.

2. I can order that interest be paid on the costs I am quantifying from a date specified in the order, being a date other than the date from which the interest would be payable under subsection 117B(1). I consider it appropriate to order that interest be payable by Mr Loomis in accordance with the Rules on the sum of $3,344 from 19 January 2018, being the date I made the order that he pay ML Lawyer’ costs to be quantified. The other costs amounts already ordered to be paid by him will be accruing interest already in accordance with the Rules. The quantification of the interest payable will be a matter for ML Lawyer.

3. Mr ML of ML Lawyer also submitted that I should also order Mr Loomis to pay his further costs of and incidental to the quantification of the costs to be paid pursuant to my Order of 19 January 2018. Mr Loomis opposed that.

4. Having regard to the amount claimed by ML Lawyer compared to the amount ordered by me, and the fact that no offer to compromise for a figure equal to or less than the $3,344 was adduced into evidence (indeed, Mr ML confirmed no offers to compromise had been made by him), I am not satisfied that the circumstances justify a costs order being made in respect of the negotiations and further hearing of submissions in this matter. I will not make any further order in respect of that part of this matter.

5. As was discussed at the hearing of further submissions from the parties as to the final property settlement orders that should now be made, it is anticipated that ML Lawyer’ costs will be ordered to be paid out of Mr Loomis’ entitlement to property when I make the final orders in the substantive proceedings in the near future.

6. In the meantime, I make the orders set out at the commencement of these written reasons.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 February 2018.

Associate: 

Date:  21 February 2018