In the case of Anison v Anison [2019], the court again considered the question of costs.

An appeal was allowed in part.

The decision is an extempore judgment by Kent J.

This is a case where, at the time of judgment, the husband was 84 and the wife 80. 

The wife received 22.5% as a result of a 10% adjustment to her under section 75(2).

The contribution-based entitlement was 87.5% to the husband, 12.5% to the wife.

The parties began to cohabit when the husband was 66 and the wife was 62.

The husband had between $8M and $9.6M and the wife had a total of $88,000.

The case then reviewed the nature of the discretion to award costs.

Harris v HarrisBrowne v GreenRobinson v Higginbotham, were all referred to.

A central challenge in the husband’s appeal was that the trial judge was wrong to conclude, “That the husband was wholly unsuccessful in the proceedings within the meaning of paragraph (e) of section 117(2A) of the Act“. 

That is, “The husband contends that Her Honour exercised the discretion to make the challenge costs order on wrong principle, relying on the conclusion that the husband was wholly unsuccessful within the meaning of the paragraph”.

Justice Kent determined that there was substance in the husband’s grounds resting upon this central contention and concluded that the appeal must be allowed.

In this case, the Trial Judge had to determine costs applications on three different matters. One was the wife’s involvement of third parties in the proceedings.

On 6 November 2015, the Trial Judge acceded to the application and struck out all of the wife’s proceedings which sought relief from the company.

The husband had opposed that application. The wife had sought to establish the trust of which the company was the trustee was a sham and that therefore, the property held within it should be included in the parties’ property pool. The Trial Judge disagreed. The husband had sought the costs of the pleadings being exchanged.

The concept of “˜wholly unsuccessful’ is of significance. The Trial Judge said:

“Whilst the husband’s position that the company be disjoined from the proceedings succeeded on the 6th of November 2015, his position thereafter was wholly unsuccessful for the reasons already explained.”

The Appeal Court then referenced paragraph 32 of the cost reasons and quoted the Trial Judge’s position.

In relation to the issue of spouse maintenance, the Trial Judge said:

“Whilst the wife was not wholly successful in obtaining the relief sought, the husband was wholly unsuccessful in his opposition to the applications for the payment of funds to defer litigation expenses and spousal maintenance.”

The husband had also been unsuccessful at trial in his contention that he owed his son considerable sums of money.

The Full Court then provides a useful discussion of section 117(2A)(e).

Readers are referred to Bant v Clayton (Costs) [2016] FAMCAFC 35, which was a decision of May, Strickland & Tree JJ.

In that case, the court considered a situation where the husband submitted that by filing a Notice of Discontinuance, the mother had been wholly unsuccessful, and the mother had said that because it was never heard or determined, she wasn’t wholly successful, the Court said:

“There is an element of truth in both submissions, but it is apparent to us that this paragraph does not apply to the facts of this case; it is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful” [Emphasis added]

The Full Court considered the Trial Judge had adopted an incorrect interpretation of paragraph (e) and had applied that misinterpretation.

The Full Court said further:

“That the husband cannot be characterised as being wholly unsuccessful in the proceedings on the proper interpretation of the paragraph would seem obvious”.   

The Full Court re-exercised its discretion.

Austin J and Aldridge J agreed with the reasons of Justice Kent.

With respect to Order 3 of the Orders, which was the issue of the husband being wholly unsuccessful.