Weiman and Paige (Costs) - [2014] FamCA 173

FAMILY COURT OF AUSTRALIA

WEIMAN & PAIGE (COSTS)

[2014] FamCA 173

FAMILY LAW – COSTS – PROPERTY PRCEEDINGS – OFFERS IN WRITING MADE – section 117(2A)(f) – where each party ought to have accepted an offer of settlement made in writing albeit at different times – where the husband had no funds following the payment of legal costs which might be available to meet a costs order – where financial circumstances of the parties were significant matters considered

Family Law Act 1975 (Cth)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Browne & Green (2002) Fam LR 428; FLC 93-115
Harris & Harris (1991) 15 Fam LR 26; FLC 92–254
Higginbotham & Robinson (1991) 14 FamLR 559; (1991) FLC 92-209
In the Marriage of Pennisi (1997) 22 FamLR 249
Jamal v Secretary, Dept of Health (1988) 14 NSWLR 252
Lennon & Lennon (Costs) [2012] FamCA 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
MacDougall v. Curlevski (1996) 40 NSWLR 430
Oliver & Oliver (No 2) [2010] FamCAFC 174
Penfold v Penfold (1979-1980) 144 CLR 311
Rhazi & Rhazi (Costs) [2011] FamCA 428

APPLICANT:

Ms Weiman

RESPONDENT:

Mr Paige

FILE NUMBER:

SYC

5643

2010

DATE DELIVERED:

24 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

28 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pender

SOLICITOR FOR THE APPLICANT:

J.S. Pinto & Co

COUNSEL FOR THE RESPONDENT:

Ms McIntosh

SOLICITOR FOR THE RESPONDENT:

JNT Legal

Orders

The wife’s application for costs is refused and dismissed.
The wife is to forthwith pay to the husband the sum of $6,000 by way of costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weiman & Paige (Costs) 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 SYDNEY

FILE NUMBER: SYC 5643 of 2010

Ms Weiman

Applicant

And

Mr Paige

Respondent

REASONS FOR JUDGMENT

Introduction

Following the delivery of a judgment by me determining property division pursuant to section 79 of the Act, the wife makes application to the court for an order requiring the husband to pay her costs. The precise order sought by the wife is as follows: “The husband pay the wife’s costs incurred by her in respect of the s 79 proceedings between the parties as and from 19 April 2012. Such costs to be as agreed or in the absence of agreement as assessed.”
The husband opposes the application sought by the wife and seeks an order that the wife’s application for costs, as specified above, be dismissed.
In addition to the opposition the husband identified to the wife’s application for costs, he filed an application of his own on 28 November 2013 in which he sought an order that the wife pay his costs as and from 6 May 2010 or such other date as the court may determine. Alternatively, the husband sought orders that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Weiman and Paige (Costs)

Details

AGLC: Weiman and Paige (Costs) [2014] FamCA 173
Case: [2014] FamCA 173
Decision Date

CaseChat Overview and Summary

In the matter of *Weiman & Paige (Costs)*, the Family Court of Australia considered applications for costs made by both the wife and the husband following property proceedings. The wife sought an order that the husband pay her costs incurred from 19 April 2012 onwards, while the husband sought an order that the wife pay his costs from 6 May 2010, or alternatively, specific costs related to a single expert valuation and other contested issues.

The primary legal issue before the court was the determination of costs pursuant to section 117(2A) of the *Family Law Act 1975* (Cth). This required the court to consider whether each party ought to have accepted offers of settlement made in writing, the financial circumstances of the parties, and the conduct of the parties in relation to the proceedings, including allegations of non-disclosure and the timing of settlement offers. The court also had to assess the reasonableness of the parties' positions regarding the resolution of property matters in conjunction with parenting disputes.

The court reasoned that while the wife's offer of settlement on 19 April 2012 was marginally better than the final orders she received, she ought not to succeed in recovering costs from that date because the husband had made an earlier offer of settlement on 6 May 2010 which the wife should have accepted. The court found that the husband's conduct in delaying property discussions until parenting issues were resolved was not unreasonable in the circumstances, as the parties' responsibilities towards their children are a significant factor in property division. Furthermore, the court accepted the husband's evidence regarding his financial position and the nature of his business income, and did not find that the wife's allegations of non-disclosure were substantiated to the extent that they warranted a costs order in her favour. The court also noted that the husband had no funds available to meet a costs order against him.

Consequently, the wife's application for costs was refused and dismissed. The court ordered that the wife pay the husband the sum of $6,000 by way of costs.

Orders