Trask & Westlake (Costs)
[2015] FamCAFC 214
•12 November 2015
FAMILY COURT OF AUSTRALIA
| TRASK & WESTLAKE (COSTS) | [2015] FamCAFC 214 |
| FAMILY LAW – PROPERTY – COSTS – Costs of the appeal – Where the appeal was allowed – Where neither party was considered wholly unsuccessful – Where the Court was not persuaded that the circumstances justified an order for costs – Where the parties ordered to bear their own costs. |
Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)
| APPELLANT: | Mr Trask |
| RESPONDENT: | Ms Westlake |
| FILE NUMBER: | SYC | 1788 | of | 2010 |
| APPEAL NUMBER: | EA | 2 | of | 2014 |
| DATE DELIVERED: | 12 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Thackray, Ryan, Murphy JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2013 |
| LOWER COURT MNC: | [2013] FamCA 928 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Harris Freidman |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Doolan Callaghan |
Orders
That each of the parties to the appeal bear their own costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trask & Westlake (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 2 of 2014
File Number: SYC 1788 of 2010
| Mr Trask |
Appellant
And
| Ms Westlake |
Respondent
REASONS FOR JUDGMENT
On 14 August 2015 we allowed an appeal by the appellant husband and varied the orders with respect to property made by Aldridge J on 29 November 2013. We also made an order for each party to file and serve written submissions in respect of the costs of the appeal which each did subsequently.
The appellant husband seeks an order that the respondent wife pay the costs of the appeal, as agreed or assessed. The wife opposes that application and seeks an order that the husband pay her costs of and incidental to the appeal, as assessed or agreed. Alternatively, the wife seeks that the husband pay a proportion of her costs, as determined by this Court.
We are of the view that each party should bear their own costs of incidental to the appeal. By reference to those matters we consider relevant pursuant to s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), our reasons are as follows.
While costs do not “follow the event” any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance. The husband submits that the appeal was “allowed” by this Court in circumstances where it was opposed by the respondent. The wife contends that the substance of the husband’s appeal, being a complaint about the overall percentage division of the property, was in fact unsuccessful and that, as a result, she cannot be said to have been wholly unsuccessful. We agree.
The husband submits that the wife has ample capacity to pay a costs order on the basis that she received 60 per cent of the total property pool, being an amount of $4,268,665 (including a significant cash amount). In response the wife submits that the husband has now taken up an occupation as a “restaurateur” and that there is no evidence as to the financial circumstances of this employment. She also submits that both parties will receive an increase in capital as the London property sold for a higher price than the value attributed to it at trial.
It is true that the husband’s capital position following our decision is less than that of the wife. However, it was accepted by this Court that it was entirely open to his Honour to find that the husband had the “capacity to generate a very high income” (at [88]) and that it “is most unlikely that [the wife’s] earning capacity will ever be anywhere near as high as the husband’s” (at [101]). We therefore do not consider the husband or the wife’s financial circumstances as sufficient circumstances to point persuasively to the making of an order for costs.
The husband’s written submissions rely upon the wife’s conduct (s 117(2A)(c)), in opposing a correction of the orders made by the trial judge, which was proposed and ordered by this Court. We do not consider that the conduct of the wife identified by husband should weigh significantly in our determination.
The husband does not raise his offer of settlement in his written submissions. The wife refers to the offer made by the husband to resolve the appeal and her offer in response, submitting that the offers failed to address the alteration of the trial judge’s formula and further, that the offers would not have placed either party in a better position than what was achieved by the formula contained in the orders of this Court. We consider there is merit in that submission.
Conclusion
We are not persuaded that the circumstances of this case justify a departure from the position prescribed by s 117(1) of the Act. Each party should bear his or her own costs of the appeal.
Neither party sought an order for the provision of a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan and Murphy JJ) delivered on 12 November 2015.
Associate:
Date: 12 November 2015
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