Wen and Thom (Costs)

[2010] FamCAFC 115

FAMILY COURT OF AUSTRALIA

WEN & THOM (COSTS) [2010] FamCAFC 115

FAMILY LAW – PROPERTY SETTLEMENT – APPEAL FROM FEDERAL MAGISTRATES COURT– COSTS – Court of the opinion the wife’s offer of settlement in terms significantly better for the husband than the outcome that he has achieved as a result of the determination of his appeal justifies an order for costs on a party and party basis as agreed or assessed

Family Law Act 1975 (Cth)

APPELLANT: MR WEN

RESPONDENT: MS THOM

FILE NUMBER: MLC 6669 of 2007

APPEAL NUMBER: SA 62 of 2009

DATE DELIVERED: 21 June 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Melbourne

JUDGMENT OF: Coleman J

HEARING DATE: 26 March 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 June 2009

LOWER COURT MNC: [2009] FMCAfam 627

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Nikou QC

SOLICITOR FOR THE APPELLANT: Plaza Legal

COUNSEL FOR THE RESPONDENT: Mr Wood

SOLICITOR FOR THE RESPONDENT: Forte Lawyers

Orders

1. That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.

IT IS NOTED that publication of this judgment under the pseudonym Wen & Thom (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 62 of 2009
File Number: MLC 6669 of 2007

Mr Wen

Appellant

And

Ms Thom

Respondent

REASONS FOR JUDGMENT

(costs)

1. On 23 April 2010, for reasons which the Court then published, the husband’s appeal against orders for settlement of property made by Federal Magistrate Reithmuller was dismissed. The Court’s orders of that date invited submissions with respect to the costs of the appeal to this Court.

2. The wife sought that the husband pay her costs of and incidental to the appeal.

3. A number of matters were relied upon in support of that application, which was agitated, as the Court’s orders envisaged, in written submissions made by counsel for the wife.

4. Whilst paraphrasing learned counsel for the wife’s submissions may do less than justice to them, the crux of those submissions was that the husband had been wholly unsuccessful with his appeal to this Court and that the wife had made an offer to settle the appeal on terms more generous to the husband than the orders of the learned Federal Magistrate against which he had appealed.

5. The submissions on behalf of the wife asserted that the offer to settle the appeal on the basis of a repayment to the husband of $15,000 represented a $15,000 better outcome for the husband than did the orders of the learned Federal Magistrate contested.

6. In submissions on behalf of the husband in response to those of counsel for the wife, a number of matters were raised. At no point in those submissions was the contention on behalf of the wife that she had offered to settle the appeal proceedings on terms more favourable to the husband than the orders of the Federal Magistrate.

7. As the Court’s Reasons for Judgment in the appeal reveal, albeit ultimately unsuccessful, senior counsel for the husband agitated grounds of appeal which raised substantial issues, particularly in relation to the adequacy of the learned Federal Magistrate’s Reasons for Judgment.

8. In isolation, given that an appeal of this kind could only ever be either wholly successful, by being allowed, or, as transpired, wholly unsuccessful by being dismissed, the Court would not regard the outcome of the appeal as a factor leading it to the opinion that an order for costs should be made.

9. The challenge to the adequacy of the Reasons for Judgment of the learned Federal Magistrate, as the Court’s reasons hopefully reveal, raised significant issues of law.

10. The wife’s offer of settlement however is a matter which the Court considers relevant to the exercise of discretion with respect to costs. The effect of the wife’s offer was, as her learned Counsel submitted, to provide “greater value to the Husband than the outcome that he has achieved as a result of the determination of his appeal to the extent of $15,000”. Relative to the net assets of the parties, that sum is not insignificant.

11. The obstacles to success of appeals against discretionary judgments are well known, and do not need to be detailed for present purposes. The husband elected, as was his right, to persist with his appeal in the face of an offer made by the wife which, if accepted, would have obviated the wife occasioning any costs in resisting the husband’s appeal, as well as providing the husband with $15,000 more than the orders of the learned Federal Magistrate gave him, and, saving him the legal costs associated with the preparation and presentation of his appeal.

12. In the circumstances, it is difficult to see how, in the interests of fairness, the wife should be denied her costs of the appeal. In reliance upon this factor, the Court is of the opinion that an order for costs on a party and party basis as agreed or assessed is appropriate and will so order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:     

Date:  21 June 2010