Tian and Fong (Costs)
[2011] FamCAFC 29
•24 February 2011
Family Court Of Australia
| TIAN & FONG (COSTS) | [2011] FamCAFC 29 |
| FAMILY LAW - COSTS – Costs of the appeal – Where the Husband was wholly unsuccessful in the appeal proceedings – Where the Husband should pay the Wife’s costs of the appeal proceedings but not on an indemnity basis – Costs awarded on a party and party basis |
| Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 1 |
| Federal Proceedings (Costs) Act 1981 (Cth) Family Law Act 1975 (Cth) |
| APPELLANT WIFE: | MS TIAN |
| RESPONDENT HUSBAND: | MR FONG |
| FILE NUMBER: | MLC | 923 | of | 2008 |
| APPEAL NUMBER: | SA | 89 | of | 2009 |
| DATE DELIVERED: | 24 February 2011 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | Written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 October 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 856 |
Representation
| COUNSEL FOR THE APPELLANT WIFE: | Mr D. Mort |
| SOLICITOR FOR THE APPELLANT WIFE: | Westminster Lawyers |
COUNSEL FOR THE RESPONDENT HUSBAND: | Ms M. Vohra |
| SOLICITOR FOR THE RESPONDENT HUSBAND: | Robinson Gill Lawyers |
Orders
The Respondent Husband pay the Appellant Wife’s costs of the appeal proceedings determined by judgment pronounced on 15 December 2010.
The costs payable pursuant to Order (1) hereof are to be as agreed between the parties or as otherwise determined under the Rules of Court and in that regard time be extended for the filing of a Bill of Costs for a period of 60 days from the date of these Orders.
The costs referred to in Order (1) hereof be assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Tian & Fong (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 89 of 2009
File Number: MLC 923 of 2008
| MS TIAN |
Appellant Wife
And
| MR FONG |
Respondent Husband
Reasons For Judgment
Introduction
Before me for determination is an application for costs in relation to the successful appeal by Ms Tian (“the Wife”) against a property settlement order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Federal Magistrate O’Sullivan on 8 October 2009. The Respondent to the appeal and to this application is Mr Fong (“the Husband”).
The Wife seeks the following orders:
(1) Within 30 days, the Respondent Husband pay to the Appellant Wife’s solicitors, Westminister Lawyers all her legal costs, fees and disbursements incurred with them on an indemnity costs basis as and from 8 October, 2009, including the Appellant Wife’s Application for costs in respect of the Appeal.
(2) Alternatively to (1), the Respondent Husband pay the Wife’s costs on a party/party basis.
(3) Alternatively to (1) and (2), the Appellant Wife be granted a costs certificate pursuant to the provisions of a s 8 and s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorize a payment under that Act to the Appellant Wife as to the costs incurred by the Appellant Wife in relation to the appeal.
(4) Costs payable pursuant to this order are to be as agreed between the parties or as otherwise determined under the Rules of this Court and in that regard time be extended for the filing of a Bill of Costs for a period of sixty (60) days from the date of there Orders.
(5) Pending the Respondent Husband’s full compliance with these Orders, the Respondent Husband be and is hereby restrained from lodging any Caveats or other charges of whatsoever nature and kind against the real property situate at and known as [property B].
The Husband submits that I should not depart from the rule in s 117(1) of the Act, namely that each party to the proceedings under the Act shall bear his or her own costs. Further, that a costs certificate be granted in respect of the costs incurred by him in responding to the appellant’s appeal and the rehearing pursuant to s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).
Background
On 8 October 2009 the Federal Magistrate made the following property settlement order:
15. That within 60 days of these orders the wife do all acts and things and sign all document as may be required to transfer to the husband her right, title and interest in the real property situate at and known as [property B], (“the real property”).
16. That contemporaneously with the transfer:
a.the wife vacate the real property and leave it in a good and undamaged condition;
b.the husband pay the wife the sum of $44,463.00 being the monies in the Colonial MISA Account in his name (“the payment”); and
c.the husband do all acts and things and pay such monies as may be required to discharge the mortgage with the CBA Colonial Home Loan Account in the parties’ joint names and the wife sign any necessary documents to give effect to this order and the husband indemnify the wife against all payments and liabilities pursuant to the mortgage.
17. That in the event the mortgage secured against the real property cannot be refinanced within 30 days by the husband then, subject to the payment being made, the wife transfer to the husband her interests in the real property to be held on trust for sale and the real property be sold by public auction and the proceeds of sale be applied as follows:
a.firstly to pay the costs, commissions and expenses of the transfer and auction;
b.secondly to discharge the mortgage secured against the real property;
c.thirdly the balance to the husband.
18. That pending the transfer in paragraph (16) hereof the wife have the sole use of the real property and during such sole right and occupation she pay all instalments of the mortgage and all rates, taxes, utilities and outgoings of the property as they fall due.
19. That any monies required by Pearsons Barristers and Solicitors to remove the caveat over the real property with respect to legal fees owed to that firm by the wife, if any, be deducted at first instance by the husband from the payment.
20. That pursuant to section 106A of the Family Law Act1975 (“the Act”) a Registrar be appointed to execute any document required to give effect to these orders should the wife fail to do so.
21. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
a.Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in their respective possession.
b.Monies standing to the credit of the parties in any joint bank account are to become the property of the husband.
c.Insurance policies remain the sole property of the owner/beneficiary named therein.
d.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
e.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
On 4 November 2009 the Wife filed a notice of appeal. A further amended notice of appeal was then filed on 11 June 2010. In the further amended notice of appeal there were six grounds of appeal.
On 11 June 2010 the Wife filed an application in an appeal. The Wife sought leave to adduce further evidence in the appeal as detailed in an affidavit also filed on 11 June 2010.
The hearing was before me on 6 July 2010. During the hearing before me it was made clear that there were issues as to the extent and value of the net assets, as to the contributions of both parties and as to the Federal Magistrate’s consideration of the matters in s 79(4)(d), (e), (f) and (g) of the Act.
On 15 December 2010 I pronounced judgment in relation to the appeal and made the following orders:
(1) The appeal be allowed.
(2) The order made on 8 October 2009 pursuant to s 79 of the Family Law Act 1975 (Cth) by Federal Magistrate O’Sullivan be set aside.
(3) The applications for property settlement be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate O’Sullivan.
I also made directions for the filing of written submissions in relation to costs.
In my reasons for judgment under “Discussion”, I focused on three main issues namely, “Matters in s 75(2) and s 79(5) of the Act and the TAC Claim”, “The Shanghai property” and “Loans from family”. In regards to the matters in s 75(2) and s 79(5) of the Act and the TAC Claim I said:
196. The Wife submitted that there was no enquiry in terms of the likelihood of success of the Husband’s TAC claim; his range of entitlement, if successful; and the quantum associated with such entitlements. It was submitted that therefore, the Federal Magistrate erred in determining the issue of an adjournment pursuant to s 79(5) of the Act without a proper basis for so doing. I accept these submissions and I do not accept that it is an answer to say that the Wife could have cross-examined Mr [C]. First, the Wife was an unrepresented party. Second, the Husband had an obligation to make a full and frank disclosure of all relevant matters.
197. I also accept, in the circumstances of this case, that given the Wife was unrepresented, and she required the assistance of an interpreter, the Federal Magistrate should have explained to the Wife what he was required to consider in relation to an application pursuant to s 79(5) of the Act, the relevance of evidence as to the likelihood of outcome of the Husband’s TAC claim and the quantum of the Husband’s entitlement.
198. It was clearly open to the Federal Magistrate to find that there was likely to be a significant change in financial circumstances given the Husband was pursing his TAC claim. It was also relevant that the Husband failed to adduce evidence as to the likelihood of success of his claim, the range of entitlement, if successful, and the quantum associated with such entitlements and also given the interim orders the Husband sought. The outcome of the TAC application was clearly relevant given his Honour’s findings in relation to the matters in s 75(2) of the Act. In my view, it was established that an order made adjourning the hearing, if that significant change occurred, was more likely to do justice as between the parties than an immediate order. In my view, the Federal Magistrate was in error in refusing to adjourn the hearing to await the outcome of the TAC claim, particularly given what was sought by the Husband.
199. Other complaints were made by the Wife in relation to how the Federal Magistrate dealt with the matters in s 75(2) of the Act which I need not consider. I propose to allow the appeal and remit the applications for property settlement to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate O’Sullivan.
Notwithstanding my decision to allow the appeal based on the first issue, I also briefly concluded on the other two issues. In regards to the Shanghai property, I said:
221. In summary, at the hearing, the Husband’s legal representatives did not take the opportunity to cross-examine the Wife’s father and the Federal Magistrate refused her request that her father’s documents evidencing the purchase and acquisition of the Shanghai property be admitted into evidence.
222. In my view, the failure to cross-examine the Wife’s father was significant. I am not going to repeat all of the submissions made to me by both parties on this issue. It is sufficient to observe that I am satisfied, in the circumstances of this case, the Federal Magistrate wrongly failed to acknowledge any adverse inference that could be drawn from the failure to cross-examine the Wife’s father. The Wife’s father was given no opportunity to respond to allegations, explain any contradictions or respond to any attack. Further, he was not given the opportunity to rely on corroborative evidence (documentary evidence) or otherwise contradict any inference(s): see Browne v Dunn (1893) 6 R 67.
223. There was nothing unreasonable about the Wife’s father’s evidence. What he was saying was inherently probable, however, by election, it remained untested. Furthermore, the Federal Magistrate failed or neglected to deal with such uncontradicted evidence in his reasons. I accept that it would have been reasonable for the Wife, as a litigant in person, to expect that his Honour would give her father’s evidence some weight given his comments.
224. It was also submitted by the Wife that to support his conclusion about why the Shanghai property was included in the net assets of the parties the Federal Magistrate observed that: “There was no application made to the Court by any other party claiming an equitable interest in that property and I am left with the conclusion it should be taken into account as property of the wife”. The Wife submitted that it was open on the evidence to conclude that her father had an equitable interest in the property; or alternatively, her share was held on trust for her father. It was submitted that there was no need for any third party to make any application in respect of the Shanghai property, as his Honour was not making any orders in respect of the property per se and therefore not affecting anyone’s interest. I accept these submissions.
225. In conclusion, I am of the view it has been established that the Federal Magistrate was in error by including the Shanghai property as an asset of the parties. His Honour also failed to give any or any adequate reasons as to his treatment of evidence to justify including the Shanghai property in the net assets of the parties. His Honour made a number of errors of fact and law.
In regards to the issue of the “Loans from family” I said:
230. In my view, the Federal Magistrate was in error in finding that there was corroborating evidence of the loans the Husband obtained from members of his family, that there was documentary evidence of such loans and that there was evidence indicative of loans. His Honour never identified the corroborating evidence be it documents or otherwise. In fact, there was no corroborating evidence of loans to the Husband from his family. It is also relevant that the Husband’s sister, who was said to have lent $25,000.00 to the Husband in 2001 and subsequently $55,000.00, did not give evidence. There are other aspects of the evidence that his Honour failed to consider such as what the Husband deposed in his financial statement filed on 4 February 2008.
231. In contrast, the Wife’s father travelled from overseas to attend Court and to give evidence inter alia about his loan to the Wife of $50,000.00. The Wife’s father attended Court on the adjourned date, armed with documents that were not called upon or permitted for use in the proceedings.
232. On behalf of the Husband it was submitted that the Federal Magistrate made findings adverse to the credit of the Wife, that she was cross-examined about her disbursement of the loan of $20,000.00 and her evidence was contradicted.
233. In my view, the evidence of the Wife’s father was wrongly disregarded by the Federal Magistrate, without proper or adequate reason. I accept that his Honour was prepared to accept the Husband’s version in terms of his alleged loans without applying like considerations to the Wife and his reason for doing so is not apparent.
234. In my view, the Federal Magistrate made various errors of principle in relation to his acceptance of the loans to the Husband by members of his family and his failure to accept that the Wife owes $55,000.00 to her parents. His Honour failed to have proper regard to the evidence. His Honour failed to have regard to the consequences of the absence of cross-examination of the Wife’s father. His Honour failed to have regard to the absence of evidence from the Husband’s sister. His Honour also failed to give any or any adequate reasons for his finding that the payment by the Husband of approximately $140,000.00 to his father and his sister was in repayment of loans and therefore should be excluded from the net assets. His Honour also failed to give any or any adequate reasons for his finding that the loans to the Wife should be excluded.
For my concluding remarks I said: “For reasons I have given I am going to allow the appeal and remit the application to the Federal Magistrates Court for redetermination. I also propose to admit the further evidence”.
On 21 December 2010 my Associate received an email from the solicitors for the Wife requesting an extension of time to file an application for costs for both parties. I note that the solicitors for the Wife said: “Our client has incurred costs of $55,967.49 in pursuing her Appeal and in the circumstances we request his Honours indulgence in granting her an extension of time as sought”. Upon consideration of this request I allowed an extension up until 24 January 2011.
On 24 January 2011 an application for costs was filed by the Wife. In support of the Wife’s application I received extensive written submissions. The Wife seeks to rely upon the reasons for judgment of 15 December 2010, an affidavit of the Wife filed on 11 June 2010, correspondence referred to in paragraph 6 of the Wife’s affidavit and additional correspondence. Both sets of correspondence were annexed to the written submissions filed on 24 January 2011.
On 8 February 2011 submissions were filed by the Husband. As I have already observed, the Husband seeks that pursuant to s 117(1) of the Act each party to the proceedings bear their own costs.
On 14 February 2011 the Wife filed submissions in reply to the Husband’s submissions of 8 February 2011.
Relevant Principles
General
Section 117(1) of the Act provides that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs”.
Section 117(2) of the Act provides that if in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so it may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (per Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311 Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
In Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 (9 September 2010) the Full Court observed at paragraph 67:
We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
There are various machinery provisions within Part 19 of the Family Law Rules 2004 (Cth) (“the Rules”). Part 19 regulates the costs between parties for applications in family law cases.
Rule 19.01 of the Rules deals with the application of Part 19 and provides:
(1) Subject to subrule (3), this Chapter:
(a) applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and
(b) creates a duty for lawyers to give information about costs to their clients.
(2) A party may only recover costs from another party in accordance with these Rules or an order.
Note A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.
(3) This Chapter does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.
Rule 19.02 of the Rules provides that interest is payable on outstanding costs at the rate mentioned in r 17.03.
Rule 19.08 of the Rules provides:
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a)at any stage during a case; or
(b)by filing an Application in a Case within 28 days after the final order is made.
(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Part 19.5 of the Rules deals with the calculation of costs. Rule 19.18 provides:
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Rule 19.11 of the Rules provides:
(1) Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.
(2) If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party’s lawyer, the party’s lawyer must give the party written notice of the order and an explanation of the reason for the order.
Rule 19.19 of the Rules provides:
(1) This rule sets out the maximum amount of party/party costs a person may recover:
(a) if the court orders that costs are to be paid and does not fix the amount; and
(b) if a person is entitled to costs under these Rules.
(2) The maximum amount of costs that a person may recover under this rule is as follows:
(a) for fees — an amount calculated in accordance with Schedules 3 and 4;
(b) for an expense mentioned in Schedule 4 (other than item 101) — the amount specified in Schedule 4 for that expense;
(c) for any other expenses — a reasonable amount.
Note This Division provides that, if an account payable by a person is not in an itemised form, the person has the right to request an itemised account (an "itemised costs account"). The person may then dispute the itemised costs account by following the procedures set out in this Division. A person may apply to extend the time for taking any action required under these Rules (see rule 1.14).
Indemnity Costs
The Family Court has jurisdiction to make orders for indemnity costs: McAlpin and McAlpin (1993) FLC 92-411 per Full Court (Nicholson CJ and Maxwell J, Baker J dissenting); Kohan and Kohan (1993) FLC 92-340 per Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman (1997) FLC 92-784 per Holden J; Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, Mullane J dissenting) and Limousin v Limousin (Costs) (2007) 38 Fam LR 478 per Full Court (Kay, Coleman and Boland JJ).
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at
256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
Relevant Statutory Considerations In Relation To Costs
Section 117(2A)(a) of the Act provides that in considering what order, if any should be made under s 117(2), the court shall have regard to the financial circumstances of each of the parties to the proceedings
The Wife contended that “the Husband has the capacity to meet a costs order”. She submitted:
The Husband and the Wife filed Financial Statements on 4 February, 2008 and 4 March, 2008 respectively. At that time the Husband was receiving $360 per week from TAC; the Wife’s income was $175 per week. She was not receiving any child support and this remains the position. Since the hearing at first instance the Husband has received $100,000, by way of TAC balance settlement monies. He also has funds in the Colonial MISA Account. At trial the balance was $44,463.
In response to the submissions of the Wife in relation to the financial circumstances of the parties, the Husband submitted that he was obliged to pay costs of the family law proceedings of $67,000.00 and as such received only $100,053.54 from the personal injuries damages claim. He further submitted:
Due to the wife’s repeated application for adjournments the husband bore the significant expense of a part-heard and delayed trial. The adjournments were, she maintained, for her to obtain legal representation which she did not do. These delays also occurred in the context of the husband seeking children’s orders and having no time with his daughter in the interim. The husband was ultimately successful in his application for children’s orders which were not the subject of appeal and which took up significant time during the trial given the wife’s opposition to him spending any time with their daughter at all.
It is submitted that no circumstances exist in this matter that would justify the Court in making an order for costs pursuant to s 117(2). Alternatively, in the event that the Court makes a costs order against the respondent pursuant to s117(2), that order should be on a party and party basis as the circumstances do not warrant an order on an indemnity basis. There has been no deliberate wrong doing on the part of the Respondent in the conduct of the trial or the appeal. Indeed it is the Appellant whose conduct in the proceedings before the Federal Magistrate caused delays and significant difficulties for the Court.
I observe that I said:
3. For the purpose of the property settlement proceedings, the Federal Magistrate found at [193] of his reasons for judgment that the parties had net assets of $427,402.00. There were issues as to the extent and value of the net assets.
4. The Federal Magistrate found at [234] that the contribution based entitlements should be assessed as to 60 per cent to the Husband and 40 per cent to the Wife. There were issues as to the contributions of both parties.
5. The Federal Magistrate found at [230] that having regard to the matters in s 75(2) of the Act, by reason of s 79(4)(e), there should be no further adjustment to the contribution based entitlement of either party. There were issues as to his Honour’s consideration of the matters in s 79(4)(d), (e), (f) and (g) of the Act.
6. The Federal Magistrate found at [240] that the Wife would have an entitlement of $174,463.00 and at [241] that the Husband an entitlement of $252,939.00 being a disparity of $78,476.00.
No submissions were made in relation to s 117(2A)(b) of the Act and thus I assume that neither party was in receipt of a grant of legal aid.
Section 117(2A)(c) of the Act provides that I should take into account the conduct of the parties to the proceedings in relation to the proceedings. The Wife relies significantly upon this matter and in her written submissions referred to her submissions in support of her claim that the Husband pay costs on an indemnity basis.
The Wife referred extensively to the issues in relation to the evidence before me in relation to two of the main issues, namely the TAC Claim and the Shanghai property. I do not propose to repeat these submissions. I also do not propose to repeat the submissions of the Husband.
In relation to the TAC claim, in summary, the Wife submitted that the Husband failed to make a full and frank disclosure in relation to the progress of the proceedings in the County Court of Victoria and failed to adduce evidence as to the likelihood of success of the claim, the range of entitlement, if successful and the quantum associated with such entitlements. The Husband submitted that any omission to inform the Court and the Wife that his application for a serious injury certificate had been listed for hearing in December was inadvertent. It was submitted by the Husband that his understanding of the procedural details, potential quantum and prospects of his TAC claim were those of a lay person and were further restricted by his limited grasp of the English language. Further, his solicitors in relation to family law matters did not act for him in relation to the TAC claim. It was submitted that the Husband attempted to meet his obligation to inform the court and the Wife and obtained sworn evidence from his solicitor in respect of his TAC claim.
In relation to the Shanghai property the submissions of the Wife are largely a criticism of how the Federal Magistrate dealt with this aspect of the case. However it was submitted that the Husband must take some responsibility because he elected not to cross-examine the Wife’s father. Submissions were also made in relation to attempts to settle the proceedings.
The Husband submitted that no criticism can be levelled at him for his failure to instruct Counsel to cross-examine the Wife's father. It was submitted that any inference that might have arisen from the Husband's decision not to cross-examine the Wife's father was a matter for the Federal Magistrate and should not be the subject of criticism of the Husband.
The Husband also made a number of submissions in relation to the conduct of the Wife. The Husband submitted that many of the issues the subject of the appeal arose due to the Wife’s failure to conduct her case effectively. It was submitted that the Wife was given numerous opportunities to obtain legal representation and indicated her intention to do so to the Court. It was submitted that unfortunately, the Wife chose in the end to remain self represented and the Husband was forced to conduct his case in the face of repeated delays and difficulties arising from the Wife's inability or unwillingness to conduct her case appropriately.
I have considered the submissions in relation to the conduct of the proceedings and I am not persuaded that it is a significant matter. I am only concerned with the costs of the appeal proceedings and I am not satisfied that the conduct of either party in relation to those proceedings would justify an order for costs.
Section 117(2A)(e) of the Act requires that I consider whether any party to the proceedings has been wholly unsuccessful in the proceedings. This is an important matter. The Wife was successful.
Section 117(2A)(f) of the Act requires that I consider 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.
A number of submission were made by the Wife in relation to s 117(2A)(f) of the Act which I am not going to repeat. Again I am of the view that the submissions may be relevant to costs of the proceedings before the Federal Magistrate but are not relevant to the appeal proceedings.
Section 117(2A)(g) of the Act requires that I consider such other matters as I consider relevant. There are no further matters.
Conclusion
In my view, in the circumstances of this case, the only relevant matter is s 117(2A)(e) of the Act. The Husband was wholly unsuccessful in the appeal proceedings and thus the Wife has established a justifying circumstance. I am going to make an order that the Husband pay the Wife’s costs of the appeal proceedings.
I observe that the Wife contended that the costs of her appeal proceedings were $55,967.49. This cannot be correct and such amount must relate to other aspects of the proceedings between the parties. I am going to order that the costs are to be assessed on a party and party basis. I am not persuaded that the circumstances of this case are so special or exceptional such that the costs should be assessed on an indemnity basis.
I observe that the Wife did not seek an order for costs of the costs proceedings.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 24 February 2011.
Associate:
Date: 24 February 2011
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