Toft & Royce (No 2)

[2013] FamCA 837

FAMILY COURT OF AUSTRALIA

TOFT & ROYCE (NO 2) [2013] FamCA 837

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Toft

RESPONDENT: Ms Royce

FILE NUMBER: MLC 1819 of 2013

DATE DELIVERED: 29 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. That the wife pay the husband’s costs fixed in the sum of $6776.64.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1819  of 2013

Mr Toft

Applicant

And

Mr Royce

Respondent

REASONS FOR COSTS JUDGMENT

1. On 28 May 2013, I made orders including that the husband and wife arrange for release to the husband of $400,000 by way of partial distribution of property. These orders arose out of a contested interlocutory hearing during which the wife opposed the husband having anything from a sum of $1.445 million that was sitting in a solicitor’s trust account.

2. Pursuant to an order that either party could apply for costs arising out of the hearing, the husband has made that application.

3. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless the Court is satisfied that there are circumstances that justify a departure from that principle and if the Court so finds, it must contemplate the matters set out in s 117(2A).

4. The circumstances that led to those interlocutory proceedings and, more importantly, them not being resolved between the parties both of whom had legal representation was as follows:

   ·    The wife sought that the funds remain in trust until final settlement.

   ·    The wife sought the husband not have any access to funds and rejected the husband’s proposal that she should have a similar amount or any distribution at all.

   ·    The parties married in 1989 and were together until April 2005.

   ·    The wife alleged that the husband had not made disclosure of documents and the husband denied that assertion. 

   ·    The wife asserted that the husband had “undisclosed international accounts”.

   ·    The husband was unemployed and living with his partner in rented accommodation. 

   ·    The wife was engaged in home duties and received a carer payment.

   ·    Each party had access to cash distributions after separation. 

   ·    Each party had significant health problems.

   ·    Neither party would argue for a significant credit for their initial contributions. 

   ·    During the marriage, both parties worked or fulfilled roles within the family. 

5. I found that the Court would be able to make later adjustments to achieve a just and equitable outcome because there was at least $1 million and the wife conceded that the husband would get 40 per cent of at least that or thereabouts.

6. I found that $400,000 was a just and equitable outcome because of that and there was no reasonable argument as to why the husband could not have what is effectively his money.

7. The husband submitted:

   ·    The financial circumstances of the parties were comparable;

   ·    The wife acted unreasonably;

   ·    The wife had been wholly unsuccessful;

   ·    An offer in writing had been made before proceedings were issued;

   ·    His costs were $6776.

8. The wife replied:

   ·    The financial circumstances of the parties were not comparable;

   ·    Her conduct was not “so unreasonable” as to warrant a costs order and the Court had exercised its discretion after an examination of the material before it;

   ·    It was not correct to say the wife had been wholly unsuccessful because the husband had sought $460,000;

   ·    No offer had come to the attention of the solicitors for the wife.

9. The last dot point caused a flurry of activity by affidavit with indications that correspondence had been sent. In my view, it does not matter because, on any view, even if the proceedings had not been foreshadowed by the husband as he alleged (and I think they probably were), there was ample time for the wife to contemplate the course being proposed by the husband.

10. I find there are justifiable circumstances here to depart from the primary principle. Here, because of the matters set out in paragraphs 5 and 6 above, the wife’s stance was difficult to justify and on the basis of her position that no money should be released, the litigation had to proceed from the husband’s perspective.

11. I turn then to the matters in s 117(2A). Even though there is an argument about the comparability of the parties’ circumstances, two important things are obvious. First, neither party is impecunious and there is money for each of them out of this long marriage. Secondly, each has engaged legal representation and was willing to spend money from whatever entitlement each may have had.

12. In relation to the conduct of the proceedings, each had filed their material appropriately and as I understand it, each had complied with court orders. There was an argument about disclosure but no application was made in respect of that.

13. It was not suggested that there were any legal aid considerations here.

14. As for the wife being wholly unsuccessful, I agree with the husband. Whilst he did not receive $460,000 as he had argued, the wife’s position was that he should receive nothing until trial. In that regard, she was wholly unsuccessful.

15. Thus, the costs that the husband has incurred have been an expense that could have been avoided. An order for costs is not a punishment for the unsuccessful party but rather as compensation for the party who has unnecessarily had to participate. I find that is what occurred here.

16. An order for costs is appropriate.

17. The husband sought scale costs and the submission of the wife in reply noted that she did not take issue with the quantum.

18. I make an order for $6776.64 accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 October 2013.

Associate: 

Date:  29 October 2013