Willmann & Willmann (No 9)

[2023] FedCFamC1F 576

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Willmann & Willmann (No 9) [2023] FedCFamC1F 576

File number:

SYC 6037 of 2021

Judgment of:

CAMPTON J

Date of judgment:

11 July 2023

Catchwords:

FAMILY LAW – COSTS – Where the wife seeks costs of her successful application to be permitted to forward a letter of instruction to the single forensic accounting expert witness – Order for costs in a fixed sum.    

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Willmann & Willmann (No 8) [2023] FedCFamC1F 575

Division:

Division 1 First Instance

Number of paragraphs:

9

Date of hearing:

11 July 2023

Place:

Sydney

Counsel for the Applicant:

Mr O’Reilly

Solicitor for the Applicant:

Barkus Doolan Winning

Solicitor for the First Respondent:

Mr Frakes, Watts McCray

The Second and Third Respondents:

Did not participate

ORDERS

SYC 6037 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS WILLMANN

Applicant

AND:

MR WILLMANN

First Respondent

MR ANDREWS

Second Respondent

MS ANDREWS

Third Respondent

order made by:	CAMPTON J
DATE OF ORDER:	11 JULY 2023

THE COURT ORDERS THAT:

1.The husband pay the wife’s costs of and incidental to the relisting of the issue as to the instructions to the valuer in the sum of $4,000 within 14 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

COSTS

1. The wife by way of Exhibit 1 makes an application that the husband pay her costs of the relisting of this matter today to determine issues going to the letter of instruction to be provided to the single forensic accounting expert (“the expert”) in the sum of $8,110.

2. The husband opposes the determination of costs today and, in the first instance, seeks that the costs of the relisting be costs in the cause or implicitly reserved to the trial. In the alternative, he contends that if costs are ordered, that the quantum of costs sought by the wife is excessive. He notes that his costs incurred in relation to the relisting are broadly in the sum of $1,150.

3. These reasons assume familiarity with the reasons delivered earlier today determining the wife’s application that she be permitted to send the letter of instruction to the expert (see Willmann & Willmann (No 8) [2023] FedCFamC1F 575 (“the earlier reasons”)).

4. The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Family Law Act1975 (Cth) (“the Act”) is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act insofar as they are relevant.

5. In this matter, the relevant financial circumstances of the parties are known and are the subject of evidence adduced in the long-standing proceedings for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). On the husband’s case, the property of the husband and wife is valued well in excess of $15 million, and on the wife’s case the value of that property is somewhat modest, subject to the opinions of the expert as to the value of their minority interests in the E Group, albeit still nothing in the order of that contended by the husband.

6. These proceedings were relisted arising from the long term dispute of the husband and wife as to the terms of the instructions as to a single forensic accounting expert, which was largely settled by way of consent orders made on 26 September 2022 and further refined by way of orders made on 30 June 2023. Subsequent to those orders the husband sought to further agitate that amendments be made to the letter of instruction. He has been unsuccessful in that endeavour to change the terms of the instructions. It is the wife’s contention made with some force that the fact of this relisting was unnecessary having regard to the history of the matter. That submission carries significant weight.

7. It is well settled that no one factor has priority under s 117(2A), nor must more than one factor be established. In my view, as identified in the earlier reasons, the circumstances justify the making of a costs order. I outlined in those reasons the capacity of the husband to pursue avenues with the expert subsequent to his opinion being released, which would have rendered his attempt to amend the terms of the instructions largely unnecessary. To my mind, those matters also ground the exercise of a costs discretion.

8. I have had regard as to the quantum of the costs sought by the wife in comparison to what is contained in the costs agreements forming part of Exhibit 2 and the schedule of costs contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the costs to be charged to the husband. I am mindful of the litigation history and am satisfied that it is appropriate to fix costs so as to avoid further litigation between the husband and wife. The husband’s costs notice records that $114,00 is held in trust on behalf of the husband on account of his costs.

9. In all of the circumstances, I fix the wife’s costs to be paid by the husband of and incidental to the relisting today in the sum of $4,000 and I will order that those costs be paid within 14 days.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton.

Associate:

Dated:       11 July 2023