Van Wyk and Sparks (No. 2)

[2007] FamCA 1699

FAMILY COURT OF AUSTRALIA

VAN WYK & SPARKS (NO. 2) [2007] FamCA 1699

FAMILY LAW – COSTS – Application by second respondent for costs – Consideration of respective financial circumstances of parties – Conduct of parties in proceedings – Conduct of parties’ in failing to prosecute proceedings in either Supreme or Family Court – Whether applicant had been wholly unsuccessful – Applicant to pay costs of first and second respondent to be suspended until conclusion of property settlement proceedings

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Mr Van Wyk

FIRST AND SECOND RESPONDENTS: Ms Sparks & Mr Sparks

FILE NUMBER: ADF 895 of 2004

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 26 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.G. McGinn

SOLICITOR FOR THE APPLICANT: Moore Law

COUNSEL FOR THE FIRST RESPONDENT: Mr D.M. Berman

SOLICITOR FOR THE FIRST RESPONDENT: Minter Ellison

COUNSEL FOR THE SECOND RESPONDENT: Mr Barnes

SOLICITOR FOR THE SECOND RESPONDENT: Wallmans

Orders

1. That the applicant pay the costs of the first and second respondents associated with the issue of accrued jurisdiction, being the proceedings conducted before the Honourable Justice Burr on 3 May 2007 and in respect of which Reasons were delivered on 29 May 2007, and that:-

   (a)the amount of those costs be as agreed between the parties or as taxed; and

   (b)the payment of those costs be suspended until the conclusion of the property settlement proceedings in this Court, either by agreement between the parties or by way of final Orders of this Court.

2. That the applicant pay the costs of the first and second respondents  in relation to today’s proceedings and that:-

   (a)the amount of those costs be as agreed between the parties or as taxed; and

   (b)the payment of those costs be suspended until the conclusion of the property settlement proceedings in this Court, either by agreement between the parties or by way of final Orders of this Court.

AND BY CONSENT, IT IS FURTHER ORDERED:-

1. In terms of the Minutes this day signed by me.

IT IS NOTED that publication of this judgment under the pseudonym Van Wyk & Sparks is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF  895  of 2004

MR VAN WYK  

Applicant

And

MS SPARKS and MR SPARKS

Respondent

REASONS FOR JUDGMENT

1. I have before me two applications for costs filed in these proceedings, being a Form 2 filed on 21 June 2007 wherein the second respondent seeks an order for costs against the applicant consequent upon my decision delivered on 29 May 2007 and also a Form 2 application for costs filed on 26 June 2007 by the second respondent.  

2. I have heard detailed submissions from Mr McGinn for the applicant in relation to the respective applications for costs.  The principal matters that he raised for my consideration pursuant to section 117(2A) of the Act were as to the financial circumstances of each of the parties, being a consideration required by me pursuant to subsection (a) of that section.

3. The applicant filed a Financial Statement on 25 July 2007 detailing his position.  Whilst the quantum of costs will be in dispute between the parties, the amount being claimed in total is in the order of $12,000.00.  The applicant’s Financial Statement discloses investment funds with BT Investments and Telstra shares to the value of $93,000.00 and a liability for costs as at the date of the swearing of that document, in the order of $81,118.00.  Thus, on those figures, the applicant would have the capacity to pay any order for costs in the amount being sought although, it would be fair to say, only just able to pay those costs.   Further, he also quite properly discloses what he claims to be his entitlement by way of ultimate property entitlements of some $1.9 million.

4. The financial position of the first and second respondents is also sound.  There is a Financial Statement on the Court file having been filed by the first respondent on 20 March 2007 and which provides a summary position. 

5. In my view though the issue of the respective financial circumstances of the parties does not lead me to a result on this application for costs.

6. Mr McGinn then directed my attention to sub-paragraph (c) as to the conduct of the parties to these proceedings.  However, in my view, he provided no compelling argument as to why it is that conduct ought to be a factor for determining the applications.

7. His submissions were essentially directed to the failure of the respondents to prosecute the proceedings in either Court (Supreme or Family).  However, the applicant was equally at fault in that regard and thus those issues do not give me any particular direction at all as to the right result on the application. 

8. Subsection (d) is not relevant. 

9. The particularly relevant section is subsection (e).  Mr McGinn raised a number of quite persuasive matters as to why it is I ought not to make an order for costs, given that my reasons delivered on 29 May 2007 disclosed a number of favourable findings for the applicant.  Indeed that is the case.  The ultimate outcome of that determination though was that the first and second respondents were successful before the Court.

10. Mr McGinn raised an interesting argument that, given that I had made a number of findings in favour of his client, the respondents had not been wholly successful in the proceedings or indeed, that his client had not been wholly unsuccessful in the proceedings, as is the wording of the legislation.  However, I cannot recall a decision that I have made in my time on the bench where I did not make some findings in favour of the party who was ultimately unsuccessful in terms of result.  Within the broad discretion of this Court and given the numerous factual circumstances that arise for the Court's consideration, it is rare that all of the findings would favour one of the parties to the proceedings 100 per cent.  In my view, the wording of the legislation is intended to indicate that it is the party who has been unsuccessful in terms of the ultimate Orders that were sought and, in that regard, the applicant was wholly unsuccessful.  Therefore, whilst I found Mr McGinn's argument interesting and at times persuasive, I think ultimately the only right result is that he was seeking an Order that the Court exercise its accrued jurisdiction to enable the proceedings to proceed in the Family Court and he was not successful in that regard.

11. Mr McGinn raised a number of other matters for my consideration but, in my view, they were rather more to the issue of the timing of the payment of any Order for costs.  There is no dispute from Counsel for the first and second respondents that it is appropriate to delay the payment until the conclusion of all proceedings.

I certify that the preceding eleven [11] paragraphs are a true copy of the Ex tempore Reasons of the Honourable Justice Burr

Associate

Date:  26 July 2007