Wooltan and Balikesir
[2007] FamCA 338
•4 April 2007
FAMILY COURT OF AUSTRALIA
| WOOLTAN & BALIKESIR | [2007] FamCA 338 |
| FAMILY LAW - COSTS |
| Family Law Act 1975 (Cth) |
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fisher and Another (2002)
Penfold v Penfold (1980) 144 CLR 311
Jensen v Jensen (1982) FLC 91-263
McAlpin and McAlpin (1993) FLC 92-411
Brown v Brown (1998) FLC 92-822
| APPLICANT: | Mr Wooltan |
| RESPONDENT: | Mr Balikesir |
| FILE NUMBER: | PAF | 3619 | of | 1993 |
| DATE DELIVERED: | 4 April 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 20 February 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Lloyd of Yeldham Lloyd Associates, Lawyers |
Orders
The Husband pay the costs of his former Solicitor, of and incidental to the costs proceedings determined by final orders made on 4 December 2006 and also the proceedings determined by these orders.
The costs identified in order 1 hereof be in an amount as agreed between the Husband and his solicitor within 21 days of these orders and failing such an agreement as taxed by a Registrar of the Family Court of Australia, Sydney Registry.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF3619/1993
| Mr Wooltan |
Applicant
And
| Mr Balikesir |
Respondent
REASONS FOR JUDGMENT
Introduction
Before me for hearing is an application by the solicitor that the husband pay the solicitor’s costs of and incidental to proceedings which were determined by me on 4 December 2006. The solicitor is seeking that the husband pay an amount of $11,971.30 inclusive of goods and services tax. In support of the application an affidavit was sworn on 12 January 2007 by David Lloyd, Solicitor.
The hearing proceeded before me on 20 February 2007 by way of telephone conference facility. There was no appearance by or on behalf of the Husband.
Costs - relevant principles
Section 117(1) of the Family Law Act 1975 (Cth) provides that in proceedings under the Act, subject to s 117(2) and certain other sections, each party shall bear his or her own costs. Section 117(2) provides that in any proceedings under that Act, if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to s 117(2A), and some further sub-sections, make such order as to costs as it considers just.
Section 117(2A) provides that in considering what order, if any, should be made under s 117(2) the Court is required to have regard to a number of relevant considerations, including the financial circumstances of each of the parties, whether any party is in receipt of assistance by way of legal aid, the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court, whether any party has been wholly unsuccessful, whether any offer of compromise has been made and such other matters as the Court considers relevant. In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court said at 130:
[41] A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The discretion in respect of costs is a very broad one: Penfold v Penfold (1980) 144 CLR 311; Jensen v Jensen (1982) FLC 91-263; McAlpin and McAlpin (1993) FLC 92-411; Brown vBrown (1998) FLC 92-822.
Background
In October and November 2006 I heard an application by the wife for her costs of and incidental to a hearing fixed for June 2006 which I vacated. There was also before me an application filed on 26 June 2006 on behalf of the Husband in which he was seeking that his previous solicitor indemnify him with regard to any order for costs made against him relating to the vacated hearing dates.
On 4 December 2006 I made the following orders:
1. The oral application made on 9 June 2006 by [the wife] for costs of and incidental to a hearing fixed for 8 and 9 June 2006 be dismissed.
2. The Application filed on 26 June 2006 by [the husband] that his previous solicitor […] indemnify him with regard to any order for costs made against him relating to the vacated hearing dates be dismissed.
The relevant background to the earlier proceedings is set out in my judgment delivered on 4 December 2006. In my judgment I said:
In all the circumstances, I am of the opinion, that it was not because of any conduct of the Husband that the hearing was vacated. I also accept, that [the husband’s previous solicitor] acted appropriately and that there was no conduct on his part that could be blamed for what happened so near to the hearing. In my view, the problem arose because of the failure of the Wife to adequately explain at an earlier time the nature and extent of her relationship with [her partner] and her failure to discover the Cohabitation Agreement. I am going to dismiss the application of the Wife against the Husband and dismiss the application of the Husband against [his former solicitor].
In relation to the application filed on 26 June 2006 by the Husband in which he sought that his solicitor indemnify him with regard to any order for costs made against him relating to the vacated hearing dates by letter dated 1 September 2006 on behalf of his solicitor, Mr Lloyd wrote to the Husband and the letter was titled “Without Prejudice Save As To Costs”. I will not repeat all of what is in this letter. Mr Lloyd dealt with the application by the Wife against the Husband for costs and the application by the Husband against his solicitor. In the letter it was stated that notwithstanding that the husband’s solicitor was of the view that the Husband’s application against him was doomed to failure, the solicitor made an offer to the Husband in order to attempt to resolve the application against him. The offer was that if I made an order requiring the Husband to pay the Wife’s costs of the adjournment, then the solicitor would contribute the sum of $2,000 towards those costs. As well, it was stated that if the Husband accepted this offer then the solicitor would agree to bear his own costs incurred in the application to the date of the letter. At that time it was noted that the solicitor’s costs were in the region of $7,000. Notice was also given that if the Husband did not accept the offer and failed then it was intended that an application would be made that the Husband pay his solicitor’s costs. It was “strongly” suggested that the Husband obtain advice from his counsel, Ms F, about the offer which would remain open for 28 days. As it transpired the offer was not accepted.
By letter dated 12 December 2006 Mr Lloyd wrote to the Husband and also sent a copy of his letter to Ms F in which he advised that I had fixed the matter for submissions about costs on Friday 9 February 2007 at 9.30 am and that I had indicated that I was prepared to hear submissions by telephone conference facility.
By letter dated 12 January 2007 Mr Lloyd wrote to my Associate and confirmed that the hearing of the application for costs was fixed for 9.30 am on 21 February 2007 and would be conducted by telephone conference facility. Further, that Mr Lloyd was in the process of filing an affidavit and did not require any attendance on behalf of the Wife. A copy of this letter was sent to the Husband and also to Ms F.
The application by the Husband seeking orders against the solicitor was dismissed. In his claim against his solicitor the Husband was wholly unsuccessful. Next, and importantly, by letter dated 1 September 2006 the solicitor made an offer to settle the proceedings against him on what I consider to be have been an appropriate basis. This offer was not accepted by the Husband and his failure to accept it put him at significant risk as to costs in the event that his application against the solicitor was dismissed. Thus, I also take into account the offer in writing to settle the proceedings.
For the above reasons I am satisfied that justifying circumstances have been established. In conclusion I am satisfied that an order should be made that the Husband pay his solicitor’s costs of and incidental to the proceedings determined by judgment on 4 December 2006 and also the costs proceedings which I heard on 20 February 2007.
Mr Lloyd attached to his affidavit a document “Itemisation Of Professional Costs” which shows how the amount of $11,971.30 is made up. Given that there was no appearance by or on behalf of the Husband there were no submissions as to the quantum of the costs sought by the solicitor. Notwithstanding particularisation of the amount claimed and the failure by the Husband to appear I propose to make an order that the costs be in an amount as agreed within 21 days of the date of this judgment and failing such agreement as taxed by a Registrar of the Court.
I understand that the Husband may be overseas and thus anticipate that it may be difficult for Mr Lloyd to get any agreement from the Husband in relation to the quantum of the costs. I therefore accept that the probabilities are that the matter will, at the expiration of 21 days, proceed to a taxation.
I certify that the preceding 15 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 4 April 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WOOLTAN & BALIKESIR
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