Cansdall & Cansdall 2021 FamCAFC 162

In the case of Cansdall & Cansdall [2021] FamCAFC 162, the Respondent sought costs on an indemnity basis against the solicitors for the Appellant.

Partway through the hearing of the appeal, the Appellant’s solicitors advised the court that they had received instructions to abandon the appeals and the appeals were subsequently dismissed.

The head note itself in the case is long.  It is an important decision.

Included in the costs that were sought were costs thrown away when a hearing had to be adjourned because of the failure of the husband’s solicitors to arrange for the husband to attend that hearing.

The background provided included that, on 28 April 2020, the husband filed another Application in a Case seeking the same orders as he had in an Amended Application in a Case. At a direction’s hearing on 9 June 2020, the husband’s solicitor insisted on the Application being listed before a Judge despite being put on notice that the court did not have the jurisdiction, or more to the point the power to hear those Applications.

The matter came before a Judge on 11 June 2020 when Her Honour found she did not have the jurisdiction to deal with the Applications and they were dismissed.

On 12 June 2020, Her Honour delivered her Reasons for Judgement on a costs application and made orders that the husband pay the wife’s costs on an indemnity basis fixed in the sum of $14,605 and that the money be paid to the wife by way of an adjustment of the surplus funds payable to the parties pursuant to the final orders for property settlement that had been made on 14 November 2018.

On 7 July 2020, the husband filed appeals against the orders made by Her Honour on 11 June 2020 and 12 June 2020.

On 14 July 2020, the husband also filed an Application in a Case seeking leave to join the purchasers of the property and the real estate agent and a stay of the orders made by the Primary Judge pending the determination of the appeals.

Her Honour heard the husband’s application on 12 August 2020 and on 24 August, delivered her Reasons for Judgment and made orders dismissing the husband’s application and providing the filing of written submissions on costs. The wife complied with the order, but the husband did not, and at the time of the hearing of the appeals, judgment was still pending.

The appeals were heard on 19 November 2020 and partway through the hearing the husband’s solicitors obtained instructions to “abandon both appeals”.  The wife then made an oral application for an order for costs against the solicitors calculated on an indemnity basis.

An order was made for written submissions to be filed and for the hearing to take place on 7 December 2020. The husband filed his submissions late.  The solicitors made no arrangements for the husband to appear at the hearing. The hearing was adjourned and the wife made an application for the costs.

Discussion beings at paragraph 27.

The court determined that there was “no doubt that an order for costs is justified here pursuant to s 117(2) of the Act.  Both appeals were incompetent and had absolutely no chance of success. They should never have been filed, or been pursued to the point where they were both abandoned midway through the hearing on 19 November 2020, and dismissed as a result“.

The court indicated it would consider who the costs order should be against and the basis upon which the costs would be calculated.

The court decided that indemnity costs could be awarded if there are exceptional circumstances with references provided. The court relied on Colgate Palmolive Company v Cussons Pty Ltd [1993] 46 FCR 225.

The court determined that a costs order should be made and that it should be made on an indemnity basis.

At paragraph 35, “To repeat, the appeals as drawn were incompetent, the written summaries of argument were baseless, and the oral submissions made at the hearing were devoid of all merit”.

The court then considered the appeal against the order dismissing the application.

Her Honour, in dismissing the application, had no power rather than no jurisdiction, the Full Court found. Also, the sale had already taken place by the time the application for an injunction was heard.

Notice of appeal filed on 7 July 2020 identified a finding the Primary Judge did not in fact make.  It referenced certain evidence as being in Her Honour’s Reasons when that was not the case.

The appeal made no reference to Her Honour’s finding that she had no jurisdiction or power to make the orders sought. No argument was included in the written argument or in the amended summary of argument which addressed the application for leave to appeal.

A general complaint that Her Honour had erred in failing to make the orders sought but “There was no indication as to how Her Honour had erred and again significantly, there was no direct challenge to Her Honour’s finding that she had no jurisdiction or power to make the orders sought and that should have been the primary issue raised in the appeal”.

The orders sought in the appeal were described as “equally deficient”.

There was the injunction restraining the sale after the sale had taken place.

The amended summary of argument was, as with the initial summary of argument, “completely without merit, either legally or factually”.

The appeal proposed to identify section 79A(1)(a) as providing a mechanism for the Trial Judge.

At paragraph 49:

“However, there were two insurmountable hurdles to s 79A(1)(a) providing the relevant jurisdiction or power. First, there was no application made by the husband seeking orders pursuant to that paragraph. Thus, her Honour could not have erred by not applying it. Secondly, and equally fatal to this submission, the miscarriage of justice has to arise out of events prior to or occurring at the time of the making of the orders being sought to be varied or set aside. Plainly, this was not the case here, yet not only was that not recognised by the husband’s solicitors who prepared the amended summary of argument, but it was not recognised by the solicitor-advocate, who, to repeat, was a member of that firm of solicitors, at the hearing of the appeal”.

At paragraph 51:

” Inexplicably, the solicitor-advocate also submitted that with the evidence the husband presented, her Honour should have granted a stay of the orders. How this overcomes the lack of jurisdiction or power to entertain the applications that were before her Honour, which did not include an application for a stay, was not explained by the solicitor-advocate”.

Further, ” the solicitor-advocate made up submissions as he went along”.

At paragraph 53:

“…the solicitor-advocate attempted to rely on a separate paragraph of s.79A(1) without understanding it was a separate paragraph, namely (b).”

“The solicitor-advocate misrepresented what Her Honour found”.

Leave to appeal was sought, but leave was in fact not required as it was a final order.

The husband’s solicitor-advocate sought to make submissions as to the husband’s financial circumstances since the order for costs were made, although “without any application seeking leave to adduce further evidence”.

The husband’s solicitor said it was “a case of a mistaken yet genuinely believed understanding of the Law”.

At the hearing on 21 February 2021, the husband, however, in this matter spoke on his behalf and waived his privilege.

The wife’s solicitors had been engaged in correspondence taking the position that the appeals were “doomed to fail”.

The husband “was not given the correct advice and indeed the advice given was substantially flawed and devoid of any merit and the fact the husband instructed solicitors to proceed cannot prevent an order for costs being made against them”.

The court said this:

“To adopt the phraseology of Goldberg J (Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155), they have “unreasonably initiated [and] continued [the appeals] when [they] had no prospect of success” and that unreasonableness relates “to a serious dereliction of duty or serious misconduct”.