Torney and Duan
[2014] FamCAFC 220
•14 November 2014
FAMILY COURT OF AUSTRALIA
| TORNEY & DUAN | [2014] FamCAFC 220 |
| FAMILY LAW – APPEAL AGAINST A COSTS ORDER – where the appellant was ordered to pay the respondent’s costs of an application seeking relief for the appellant’s alleged failure to comply with provisions in consent orders relating to the distribution of proceeds of sale of a property – where the consent orders were not precise – where the respondent’s solicitor did not inform the trial judge about a letter from the appellant’s solicitor offering to remedy the apparent noncompliance but the appellant’s solicitor did so at a subsequent hearing – where the trial judge failed to consider the letter when confirming the costs order with the result that his discretion miscarried – where despite the high threshold for appellate interference with costs orders it was warranted in this case – where on a redetermination it was decided that there was no justification for departure from the general rule that each party bear his or her own costs – appeal allowed – no order for costs in relation to the appeal. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Harris and Harris (1991) FLC 92-254 Penfold v Penfold (1980) 144 CLR 311 Pennisi v Pennisi (1997) FLC 92-774 Robinson & Higginbotham (1991) FLC 92-209 |
| APPELLANT: | Mr Torney |
| RESPONDENT: | Ms Duan |
| FILE NUMBER: | CAC | 1397 | of | 2010 |
| APPEAL NUMBER: | EA | 146 | of | 2011 |
| DATE DELIVERED:: | 14 November 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | 03 April 2013 04 April 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1476 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Bak |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini & Dunn |
Orders
The appeal be allowed.
Order 3 of the orders made by the Federal Magistrates Court on 24 November 2011 be set aside.
There be no order for costs in relation to the proceedings instituted by the application filed on behalf of the respondent on 18 November 2011.
There be no order for costs in relation to the appeal.
The Court grants to the appellant 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 appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Torney & Duan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 146 of 2011
File Number: CAC 1397 of 2010
| Mr Torney |
Appellant
And
| Ms Duan |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Mr Torney against an order in relation to costs which Federal Magistrate Brewster (as his Honour then was) made on
24 November 2011. The order appealed required the appellant to pay costs in relation to certain proceedings in the sum of $1,440 to the respondent to the appeal, Ms Duan, who is the appellant’s former de facto partner. She opposes the appeal.
I mention at the outset that I am determining this appeal as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The appellant was self-represented for purposes of the appeal. His grounds of appeal as contained in the notice of appeal are not particularly informative, being only as follows: “To correct an error, unfairness or wrongful exercise of judicial discretion.”
However, the appellant’s written summary of argument is of greater assistance. It explains quite well and accurately the history of the proceedings which led to the making of the order now appealed, and in that context explains his complaints about the making of the order.
At the hearing of the appeal, the respondent was represented by her solicitor, who also provided a useful written summary of argument.
The history of this case up until the making of the appealed costs order
Consent orders were made on 3 August 2011 by Federal Magistrate Brewster in property and parenting proceedings between the appellant and the respondent. At that time both parties were represented by solicitors, with the consent orders being stated to have been prepared by the respondent’s solicitor.
Included in those orders was an order for the sale of a property owned solely by the appellant. Order 5 of the orders provided for the distribution of the sale proceeds in the following terms:
5That the [appellant] and [respondent] do all things necessary to cause the proceeds of sale of the Property to be distributed as follows:
(a) To pay all costs commissions and expenses of the sale.
(b) To pay the usual rates adjustments.
(c) To pay the amount required to discharge the Mortgage.
(d) To pay the balance then remaining:
i) $140,000.00 first to the [respondent]; and
ii) the balance if any to the [appellant].
On 18 November 2011, an application was filed on behalf of the respondent seeking that the appellant be restrained from dealing with the proceeds of sale of the property. The supporting affidavit from the respondent’s solicitor, sworn on 18 November 2011, contained the following paragraphs:
4.On Tuesday 15 November 2011 our client contacted our office seeking that we assist her in relation to the collection of her cheque as she had attended the settlements office on Monday 14 November and settlement had not occurred. The home was solely in the name of the husband.
5.On Tuesday 15 November I telephoned [Mr T], the conveyancing lawyer and said words to the effect “You do have a copy of the August 2011 Orders don’t you?” He said “I do”. I said “Our client wants us to attend settlement and collect the cheque on her behalf.” He said “You had better write to me.” He said “I am not authorised by my client to discuss settlement with you.” I said words to the effect “You cannot aid and abet the breach of a Court Order.” I said “Is settlement happening tomorrow?” He said words to the effect “There are the usual conveyancing type issues happening but I am hoping it will settle this week.”
6.I then caused a letter to be forwarded to [the conveyancing solicitors]. Annexed hereto and marked with the letter ‘B’ is a copy of the letter.
That letter from the respondent’s solicitor to the conveyancing solicitor, which was dated 15 November 2011, read:
…
We advise we have once again been instructed by [Ms Duan].
We are instructed by our client that settlement is due to occur sometime this week.
We will be attending settlement.
We note that you have a copy of the Orders of 3 August 2011 which require the husband to cause the proceeds of sale of the property to be paid via a payment of $140,000 to the wife prior to him receiving any proceeds.
Please draw a bank cheque payable to [Ms Duan] at the time of settlement for us to collect at settlement.
We look forward to hearing from you as to the date for settlement.
…
The solicitor’s supporting affidavit continued:
7.Having received no response, on Thursday 17 November I again rang [Mr T] and said “You haven’t responded to my letter.” He said “The instruction from my client was that I was not to respond to your letter.” I said words to the effect “I presume settlement hasn’t happened?” He said “Yes, settlement did happen yesterday.” I said “Do you have on your file cheque payable to my client?” He said “No.” I said “Are you holding funds in your trust account?” He said “No. I’m not holding them in my trust account.” He then said “I cannot tell you any more.” He said words to the effect “The client spoke to [law firm N].”
8.I then rang [law firm N] [the solicitors who had represented the appellant when the consent orders were made] and had a conversation with [Mr S]. At the end of that conversation I said to [Mr S] “Would you please contact your client and tell him if a bank cheque made payable to our client in the sum of $140,000 is not at our office by close of business today, then I anticipate receiving instructions to make an urgent enforcement application.” [Mr S] said to me “And should I tell him that you will be applying for costs?” I replied “Yes.”
9.No cheque was received at my office by close of business Thursday 17 November.
10.On Friday 18 November my client telephoned our office and said words to the effect “I rang [Mr Torney] and he said he will give me the money when he is ready.”
…
The solicitor attached to her affidavit copies of letters, all dated 18 November 2011, which she had sent to the conveyancing solicitors, the solicitors who had acted for the appellant when the consent orders were made, and the real estate agents involved in the sale of the property. Copies of the respondent’s application and solicitor’s supporting affidavit, which were stated to be “about” to be filed at the Federal Magistrates Court (as it then was), were also enclosed with each of those letters.
There was no reference in the solicitor’s affidavit to a letter dated
18 November 2011 which was faxed to her at apparently 19 minutes past 2pm on that same day from the solicitors who had represented the appellant when the consent orders were made, and which was apparently in response to the letter sent to them earlier that day by the respondent’s solicitor enclosing the application and supporting affidavit. The faxed letter was ultimately provided to the Federal Magistrate on the day when he made the order now appealed. Its contents will be set out later.
There was a hearing of the respondent’s application (filed 18 November 2011) before Federal Magistrate Brewster on 21 November 2011. There was no appearance by, or on behalf of, the appellant. The solicitor appearing for the respondent told his Honour that he had that morning spoken to the solicitor, who had acted for the appellant when the consent orders were made, and that that solicitor had said that he did not have instructions to appear at the hearing. The following discussion then ensued between his Honour and the respondent’s solicitor:
HIS HONOUR: What about the [conveyancing solicitors]…?
…
MR BAK: ... They don’t submit an appearance but have indicated they will comply with any order made by the court and ‑ ‑ ‑
HIS HONOUR: Well, what if I – do you know if – and then there’s the real estate agents as well.
MR BAK: Yes, we’ve spoken to them as well, and they say they no longer hold any moneys on the husband’s behalf, so they’re not helpful.
HIS HONOUR: Do we know if a cheque has been presented?
MR BAK: Yes.
HIS HONOUR: It has?
MR BAK: Yes, it has. [The solicitor who acted for the appellant when the consent orders were made] … tells me that his client informs him – I realise we’re getting a fair way down the hearsay chain.
HIS HONOUR: That’s okay.
MR BAK: Something will [be] delivered to our offices soon, but not as yet, and hope springs eternal.
HIS HONOUR: Something? Like a cheque perhaps?
MR BAK: Better that than anything else.
…
HIS HONOUR: All right. [The conveyancing solicitors]. Do you know if they’ve sent the proceeds of sale to their claim [sic]?
MR BAK: They have. So neither ‑ ‑ ‑
HIS HONOUR: And that cheque has been presented?
MR BAK: That’s right. So the husband has the money. The conveyancing solicitor have released the principal, and the ‑ ‑ ‑
…
HIS HONOUR: What do you want me to do today?
MR BAK: Well, I would move on orders as sought in my client’s application in a case.
HIS HONOUR: Yes. Let’s just have another look at those.
MR BAK: Does your Honour have that document? Orders 1, 2 and 5.
HIS HONOUR: [The conveyancing solicitors] know about order 2, do they?
MR BAK: Everyone has – yes, they have, your Honour, and they quite explicitly say that they will submit to that order if the court considers it appropriate. That’s the reason they’re not here.
HIS HONOUR: So you want orders 1 and 2?
MR BAK: Yes.
HIS HONOUR: I suppose orders – and order 5, did you say?
MR BAK: Yes.
HIS HONOUR: Yes. Okay. I will do that.
MR BAK: And could the matter then stand to later this week, if there’s a convenient time?
HIS HONOUR: Yes. That’s not a problem. Thursday or Friday?
MR BAK: Thursday is ideal if there’s capacity then, your Honour.
(Transcript 21 November 2011, pp. 2-4)
His Honour then made the following orders but did not give any reasons in relation to them, with the result that his reasons must be understood from the passage of transcript quoted above:
1. THAT the Husband be restrained from:
(a)Disposing of any of the proceeds of sale described in Order 5 of the Orders dated 3 August 2011;
(b)Withdrawing any sum whatsoever from any bank account, credit card, line of credit or other such facility in his name, either solely or jointly;
(c)Depositing or otherwise transacting with any cheque drawn in his name or to his credit or benefit;
2.THAT [the conveyancing solicitors] forthwith deliver their file in respect of the sale of the property at [suburb D] in the Australian Capital Territory, to the solicitors for the Wife, or alternatively to the Registrar of the Court.
3.THAT the Husband pay the Wife’s costs of this Application. That if the parties are unable to agree as to the quantum of the [sic] those costs the wife has liberty to have the matter listed for a determination of the issue.
4. THAT this matter is adjourned to 24 November 2011 at 10.00am.
5.THAT I direct that the wife’s solicitor serve the husband’s lawyer and [the conveyancing solicitors] with a copy of these orders. This may be done by facsimile.
6.THAT orders 1, 2 and 3 having been made in the absence of the husband and of [the conveyancing solicitors] either may apply on the adjourned date for those orders to be varied or discharged.
When the matter came back before his Honour on Thursday 24 November 2011, Mr S, the solicitor who had represented the appellant when the consent orders were made, appeared as also did Mr Bak, the solicitor who had appeared for the respondent at the hearing on 21 November 2011.
Mr Bak confirmed to his Honour that the respondent had now received her share of the sale proceeds and that therefore the only application was
“that the costs order be preserved and fixed, and an order for interest for the days that the money that remains outstanding, and that interest total $161.”
Mr S informed his Honour that the appellant was seeking that “orders 1, 2, and 3 made … on Monday 21 November be … discharged … and … a costs order against the application [sic].” Mr S then provided his Honour with a copy of the letter which is mentioned at [12] above and which he had faxed to the respondent’s solicitor on the afternoon of 18 November 2011.
Notwithstanding the length of that letter, it is necessary to set out its contents at this stage because it is clear from the transcript of the hearing before his Honour on 24 November 2011 (p. 3, lines 21 to 27) that his Honour had read the letter before hearing further submissions from the appellant’s solicitor and making the orders which he did on that day. Omitting formal parts the letter reads:
We refer to your facsimile of today’s date in relation to Enforcement Proceedings.
We have contacted our client in relation to same and sought instructions with regard to the status of the sale proceeds and his intention with regard to paying your client the amount required by the Orders.
Our client instructs that he instructed his conveyancing solicitor to request that the entire net proceeds, after discharge of the mortgage, meeting the costs of sale and so forth, be drawn in his favour. Our client instructs that he deposited that cheque the day after settlement, 17 November 2011, and was advised that the cheque would clear in 3 working days. Our client instructs that it is his intention to draw a cheque in the amount required to your client as soon as the proceeds have cleared in his account, which should be by next Tuesday, 22 November 2011 or Wednesday,
23 November 2011. We have advised our client of your request that any cheque be delivered to your office and our client has indicated his agreement to do so. Our client instructs that if your client does not wish to wait for a bank cheque by mid-next week, he would be happy to write a personal cheque in the required amount and deliver same to your office today. Please advise as to whether this would be suitable and, if so, would you prefer the cheque to be drawn in favour of “Farrar Gesini & Dunn”.We do not know why our client has constructed the settlement in the way that he has. Whilst we acknowledge it is ordinarily the case that a cheque would be ordered or drawn in the required Court Ordered amount at the time that the sale settles. Our client’s interpretation of Order 5 of the
Orders dated 3 August 2011, is that he is to cause your client to be paid the sum of $140,000.00 from the sale proceeds. Our client was not aware that [sic] is usual practice to arrange for payment contemporaneously with the settlement of the sale. Our client did not seek our guidance and advice in this regard and has liaised with his conveyancing solicitor throughout this process. Similarly, our client was not aware that the Order in its current form created any requirement of immediacy of the payment, so long as he caused your client to be paid the required amount from the sale proceeds.We do not have instructions to accept service of your client’s documents in relation to Enforcement Proceedings. Should your client proceed to file these documents, we have advised our client that in light of our advice to you in this letter, that our client is willing to write a personal cheque to your client and deliver same today or, otherwise, arrange to draw upon the settlement proceeds he has banked into his account that should clear by mid next week for a bank cheque in the required amount in favour of your client, then it would be difficult for your client to obtain a Costs Order against our client in any Enforcement Proceedings and, indeed, our client has good prospects of obtaining a Costs Order against your client.
Please confirm whether you wish our client to provide a personal cheque to your office by close of business today in the amount of $140,000.00 and, if so, whether that should be drawn in favour of Farrar Gesini & Dunn or your client. Alternatively, please advise whether your client is willing to wait until mid next week for the sale proceeds to clear in our client’s account, at which time our client will draw a cheque in favour of Farrar Gesini & Dunn or your client for the required amount.
After his Honour had been provided with that letter and there had been a short adjournment, the hearing resumed:
HIS HONOUR: Yes. [Mr S], I will hear from you first.
MR [S]: So your Honour, you’ve had an opportunity to peruse that letter.
HIS HONOUR: I’ve read your material you handed up, yes.
MR [S]: So in accordance with that letter. I understand from the registry that, notwithstanding our letter, the enforcement application was filed subsequent to receiving that. The registry confirms that an enforcement application was filed at 4 pm. The letter was sent at 2.20 pm. The letter clearly explains the delay in the payment and assures payment on the following Monday or Tuesday. My friend’s affidavit concedes that they were, indeed, paid on the Monday. My client attended the office and handed over the cheque, unaware of these proceedings and prior to us even receiving your Honour’s orders, which we received at 5.23 pm on Monday. The cheque had been paid prior to that.
HIS HONOUR: But you – surely, Mr Bak is able to feel – his client is entitled to feel a bit alarmed that your client has instructed the bailiff’s assistant [sic] to pay all the money to him and you’ve have [sic] no instructions to accept any documents on his behalf. In her position I would feel some degree of concern.
MR [S]: I did have instructions, your Honour, and I put forward those instructions.
HIS HONOUR: No, we do not have instructions to accept service of your client’s documents.
MR [S]: Well, I didn’t at that stage, on the grounds that the proceedings were unnecessary given our explanation of when the payment would be made. Your Honour should have – there was a file I produced pursuant to the order from [the conveyancing solicitor]. That file will demonstrate that the proceeds available to my client on the day were only $133,000 at settlement, which is $7000 short of the required amount.
My client was relying upon the release of the deposit from the real estate agent to make up the balance. That deposit couldn’t be released on the date of settlement, which is not usually the case in any event. So I mean, the fact of the matter is my client didn’t have the complete funds to provide until the time he did.(Transcript 24 November 2011, p. 3)
His Honour then indicated to Mr S that he was “against” him, and he proceeded to deliver the following extempore reasons for judgment:
1.It’s very unfortunate the way this matter has proceeded. But, really, there seems to be no reason that I can see why the conveyancing solicitors should not have been directed to pay these monies to the wife.
…
2.The orders are not precise, but one has to see them against the background of what I understand to be the usual procedure, which is that the conveyancing solicitor divides the proceeds according to the orders. That is not explicit in the orders but even if one started with a blank slate with no general practice, whilst it is not entirely clear, if one were interpreting a statute, for example, and had two alternatives, one would interpret it, in my view, as requiring the balance then remaining up to $140,000 to be paid to the applicant and the balance then remaining, if any, to the respondent. The orders would indicate an initial payment, an initial division of proceeds, to the applicant
3.In my view, the wife was entitled to be concerned that the husband might be going to spend or dispose of some or all of these proceeds and for that reason the steps that she took, in my view, were not unreasonable. And it is really brought about by the husband’s instructions to his conveyancing solicitors. Therefore, I propose to make an order for costs for the sum of $1,400. I have not heard from Mr Bak, but I am not disposed to make an order for interest. And I am confident he will not appeal that part of my decision on the basis I have not given him procedural fairness. I agree that the orders are not entirely clear and whilst the husband should have taken advice as to the steps he should take, the damage that has been done by any delay is minimal. And enforcement of any order is a discretionary matter and I decline to exercise my discretion in the wife’s favour. I do not think I need make any further orders.
…
His Honour then made the order that the appellant pay the respondent’s costs “in relation to these proceedings in the sum of $1,440”. This is the order which is subject of this appeal.
The issues raised on the appeal
A number of the issues raised by the appellant both in his written and oral submissions were directed to the proceedings on 21 November 2011 at which he was not represented and also to the orders made that day in relation to
which no reasons were delivered by his Honour. But, as I explained to the
appellant when I heard this appeal (which is against the order made on
24 November 2011), I cannot be concerned with issues relating to the proceedings on 21 November 2011 because he has not appealed the orders made on that day.
However, I would want the appellant to understand that there would be no utility in an appeal against the orders made on 21 November 2011 (which are set out in [14] above). This is because Orders 1 and 2 of those orders were discharged by his Honour on 24 November 2011; Orders 4, 5 and 6 are of a purely procedural nature and are not longer of any effect; and Order 3 (which is the costs order) has been absorbed, so to speak, in the costs order made on 24 November 2011, and which is subject of this appeal. Put simply, there is now no disadvantage to the appellant in his not having appealed the orders made on 21 November 2011.
As to the proceedings on 24 November 2011 and the order for costs made that day, the principal arguments raised by the appellant in support of his appeal against that order, were that he had in fact on 21 November complied with the order to pay the sale proceeds to the respondent; that the Federal Magistrate had himself acknowledged that the original consent orders were not precise; that the proceedings brought by the respondent had been not only unnecessary, but were also “an abuse of process”; and that the costs order made against him appeared to be “punitive”.
Specifically with reference to the matters contained in s 117(2A) of the Act (which are the matters to which the Court must have regard in considering whether to depart from the general rule in s 117(1) that each party should bear his or her own costs of proceedings under the Act), the appellant asserted that his Honour had made no enquiry regarding his financial circumstances. He also asserted that he had been a responsible litigant whose conduct could not be criticised, and he sought to rely on the offers contained in the letter sent by
his solicitors to the respondent’s solicitors earlier in the afternoon of
18 November 2011 and before the application was filed on behalf of the respondent.
In response, the solicitor for the respondent submitted that it was entirely reasonable and prudent for the respondent to file the application when she did, and that even though by the time of the hearing on 24 November 2011, she had received her share of the sale proceeds, she was entitled to the costs of her application.
Discussion and conclusion in relation to the appeal
No possible criticism could be made of his Honour for the orders which he made on 21 November 2011 given that the only material which he had before him on that day was the affidavit of the respondent’s solicitor (most of the contents of which are set out in paragraphs [8] and [10] above).
The real concern in relation to this matter arises in relation to the letter faxed by the appellant’s solicitor to the respondent’s solicitor on 18 November 2011. It will have been seen from the passage of transcript set out in [19] above, that at the hearing on 24 November 2011 the solicitor for the appellant asserted that the court registry had confirmed that the application was filed at 4pm on
18 November 2011, while the letter had been sent at 2.19pm (as is verified by a facsimile date). No attempt was made by the respondent’s solicitor before his Honour at the hearing on 24 November 2011 to challenge those asserted times.
As I noted in my earlier history of this matter, the affidavit of the respondent’s solicitor in support of the application did not refer to the letter in question. That omission may well be explicable because of the very short time frame between the time when the letter was faxed and the time when the application and supporting affidavit were filed. However, the serious question must arise as to why his Honour was not told about the letter by the solicitor for the respondent at the hearing on 21 November 2011?
But, however, that may be, by the time his Honour in effect confirmed the costs order on 24 November, he had been provided with the letter and he said he had read it. Yet he made no mention of that letter in his reasons for the order made on 24 November 2011. Rather his stated conclusion simply was at [3] of his reasons that “… the wife was entitled to be concerned that the husband might be going to spend or dispose of some or all of these proceeds and for that reason the steps that she took, in [his Honour’s] view, were not unreasonable.”
His Honour may well have been entitled to reach that conclusion. But in my opinion, if he had reached it, he needed to have explained why he apparently put no weight on the contents of the letter. He did not do so.
I also have some difficulty in understanding the significance of the question which his Honour raised in the first paragraph of his reasons, being “why the conveyancing solicitors should not have been directed to pay [the] monies to the [respondent]”.
I can only assume that in his Honour’s view the appellant was at fault for not providing such a direction to the conveyancing solicitors. However, his Honour then went on in the second paragraph of his reasons to describe the original consent orders as “not precise”, “not explicit”, and “not entirely clear”. If his Honour was there suggesting that the orders could be interpreted as requiring both parties to ensure that the sale proceeds were distributed in a particular way, the question would then arise as to why the respondent’s solicitors
(who had apparently prepared the consent orders) did not take steps to ensure that the conveyancing solicitors had been provided with such a direction?
It is, of course, true that orders with respect to costs can be described as highly discretionary, and thus particularly immune from appellate interference (Robinson & Higginbotham (1991) FLC 92-209; Harris and Harris (1991) FLC 92-254; and Pennisi v Pennisi (1997) FLC 92-774). Similarly, extensive or detailed reasons in relation to costs orders are not required (Penfold v Penfold (1980) 144 CLR 311).
Nevertheless, in the very unusual circumstances of this case, and while acknowledging that his Honour’s decision was apparently made in the context of a busy duty list, I have reluctantly concluded that his discretion did miscarry when he made no reference in his reasons for his order of 24 November 2011 to the very relevant letter of 18 November 2011 faxed from the appellant’s solicitors to the respondent’s solicitors.
Moreover, once his Honour accepted that there was imprecision in the original consent orders, he needed to explain more clearly why he attributed, or apparently attributed, to the appellant sole responsibility for the failure to provide a direction or authority to the conveyancing solicitors to pay the respondent’s share of the proceeds directly to her.
Nothing put to me on behalf of the respondent has dissuaded me from these conclusions. Accordingly, I cannot permit his Honour’s costs order to stand.
Redetermination
It was agreed that if I determined that his Honour’s order could not stand,
I should re-determine the respondent’s application for costs on the basis of the material before his Honour. That material, of course, includes the letter from the appellant’s solicitors faxed to the respondent’s solicitors at 2:19pm on
18 November 2011.
The costs that were sought by the respondent relate to her costs incurred in relation to the application which was filed on her behalf apparently late on the afternoon of Friday 18 November 2011. It was entirely a matter for the respondent and her advisers as to whether that application was filed, and more significantly, then pursued before the court on Monday 21 November 2011, given the letter faxed by the appellant’s solicitors on the afternoon of Friday
18 November 2011. However, given the explanation contained and the offers made in that letter, and given also to use his Honour’s words, the “very unfortunate way this matter has proceeded”, I cannot see that any justification exists for a departure in either party’s favour from the general rule contained in s 117(1) that each party should bear his or her own costs in relation to proceedings under the Act. There should, therefore, be no order for costs in relation to the proceedings instituted by the respondent’s application filed
18 November 2011, and I propose to so order.
Costs of the appeal
Notwithstanding the appellant’s success in this appeal, I am also not persuaded that there is any justification for an order for costs in his favour in relation to the appeal (as was sought in his Notice of Appeal and written submissions). There will, therefore, be no order for costs in relation to the appeal.
However, each party should receive the costs certificate which each sought in submissions at the conclusion of the hearing of the appeal. His Honour’s failure to refer in his reasons for the order made on 24 November 2011, to the very relevant consideration of the letter faxed on 18 November 2011 constitutes the required error of law under the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 14 November 2014.
Associate:
Date: 14 November 2014
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