Federal Circuit and Family Court of Australia
(DIVISION 1)

Khalif & Khalif [2021] FedCFamC1F 131 
File number(s):	SYC 6144 of 2016	
		
Judgment of:	REES J	
		
Date of judgment:	14 October 2021	
		
Catchwords:	FAMILY LAW – COSTS – Application dismissed 	
		
Legislation:	Family Law Act 1975 (Cth) s 117(2A) 	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	25	
		
Date of last submissions:	11 October 2021	
		
In Chambers:	14 October 2021 	
		
Place:	Sydney	
		
Solicitor for the Applicant:	Jordan Djundja Lawyers	
		
First Respondent:	Self - Represented	
		
Solicitor for the second Respondent:	Aquila Lawyers Pty Ltd	

ORDERS
	SYC 6144 of 2016	
		
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) 
	
BETWEEN:	MS KHALIF
Applicant
	
AND:	MR KHALIF
First Respondent

MR B KHALIF
Second Respondent

order made by:	REES J	
DATE OF ORDER:	14 October 2021	

THE COURT ORDERS:

1.	That the application of the wife sealed on 30 August 2021 be dismissed.

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 a pseudonym Khalif & Khalif has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Rees J:
1	There are ongoing proceedings in relation to financial matters between Ms Khalif (“the wife”) and Mr Khalif (“the husband”). The husband’s brother, Mr B Khalif (“the second respondent”) is a party to the proceedings.
2	On 31 January 2020, Watts J delivered reasons and made orders in relation to a discrete issue of the beneficial ownership of a property at Suburb D, which is registered in the name of the second respondent. Before his Honour, the wife sought a declaration that the second respondent holds the Suburb D property by way of constructive trust for the husband. That application was opposed by the husband and the second respondent who contended that the second respondent was the beneficial owner of the property.
3	Watts J found that the husband had contributed 61.5 per cent of the purchase price of the Suburb D property and that the second respondent held the property on trust for the husband as to 61.5 per cent. On 12 February 2020, Watts J reserved the wife’s costs, granting her liberty to apply on seven days’ notice following the determination of any appeal.
4	The second respondent appealed against those orders. The appeal was dismissed and the second respondent was ordered to pay costs in the sum of $14,614.
5	On 23 August 2021, the wife filed an Application in a Case seeking, inter alia, the following orders:
2.	Order That the second respondent pay the applicant wife's costs of and incidental, to the proceedings before Watts J in suit SYC 61442016 as to the trust claim proceedings in respect of the property situate C Street, 
Suburb D pursuant to the Judgment and Orders in respect of that issue pronounced 31 January 2020:-
(i)	In the fixed sum of $300,000.00, or,
(ii)	Otherwise, indemnity costs as determined and fixed by the court pursuant to s 117(2) Family Law Act as amended, or, in the further alternative, indemnity costs as assessed between the costs parties, or
(iii)	Alternatively to (ii) above, costs on the party/party basis as fixed by the court pursuant to s117(2) Family Law Act as amended, or, in the further alternative, as assessed between the costs parties.
(As per the original)
6	The Rules then applicable provided that a party could make an application for costs at any time during the case or within 28 days of a final order being made.
7	On 30 August 2021, orders were made for service of the application for costs on the second respondent and for the second respondent, within 21 days, to file and serve any response and affidavit upon which he sought to rely. The applicant and the second respondent were directed then to file any written submissions.
8	The applicant relies on an affidavit by her solicitor sworn 23 August 2021. No material has been filed by the second respondent. Neither party has filed any submissions.
9	The application falls to be determined according to the provisions of the Family Law Act 1975 (Cth) s 117(2A) which are set out below:
(2A)	In considering what order (if any) should be made under subsection (2), the court shall have regard to: 
(a)	the financial circumstances of each of the parties to the proceedings; 
(b)	whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; 
(c)	the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; 
(d)	whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court; 
(e)	whether any party to the proceedings has been wholly unsuccessful in the proceedings; 
(f)	whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and 
(g)	such other matters as the court considers relevant. 
10	There is no evidence of the present financial position of either party.
11	No party was in receipt of legal aid.
12	The solicitor for the wife relies on the asserted conduct of the second respondent which is asserted to be “extra curial”. It is asserted that the second respondent evicted the wife from the home, instructed tradesmen to render the property uninhabitable and prevented the wife from reoccupying the home and that the husband did nothing to prevent the actions of the 
second respondent.
13	However, I do not accept that those actions are relevant to this consideration.
14	The Court is required to look, not at the conduct of the parties generally and widely, but at the actions of the parties, specifically in relation to their conduct of the particular litigation, that is, the proceedings determined by Watts J by orders made 31 January 2020.
15	Nothing in the affidavit of the solicitor for the wife asserts conduct by the second respondent, being the conduct of the litigation, which would justify an order for costs.
16	I do not accept the submission of the wife’s solicitor that the second respondent “totally failed in his claim for the entirety of the beneficial interest in the property…”
17	Watts J found that the second respondent was entitled to a 38.5 per cent interest. The 
second respondent was not wholly unsuccessful.
18	The wife sought an order that the husband was solely entitled to the beneficial interest. She succeeded in obtaining an order that he was entitled to 61.5 per cent. She was not wholly successful.
19	I have not been made aware of any relevant offers of settlement.
20	None of those matters persuades me that it is appropriate to make the order sought by the wife.
21	The application will be dismissed.
THE BALANCE OF THE APPLICATION IN A CASE
22	The wife, relevantly, sought further orders in the following terms:
1.	Order that the second respondent forthwith pay to the solicitors for the applicant wife, Messrs. Jordan Djundja, the sum of $14,614.00 Appeal costs ordered on 26th July 2021, as a condition precedent to the second respondent's right of appearance in the proceedings thereby purging the second respondent's contempt of those said orders.
3.	Order that any such costs order pursuant to Order 1 above be paid by the 
second respondents within 28 days of such order or conclusion of any assessment, as the later date may be.
5.	Order that any such costs ordered pursuant to order 1.herein be charged as caveatable interest against the second respondent's real property interest in 
C Street, Suburb D until payment in full.
(As per the original)
23	As to Order 1 as sought by the wife, the Full Court has made an order that the second respondent pay the costs in the amount specified. Whether or not it is appropriate for the second respondent to be precluded from participation in any proceedings relating to any asserted contempt is a matter for the judge hearing that application.
24	Order 1 will not be made.
25	It follows that Orders 3 and 5, which are consequential on the making of Order 1, will not be made.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.	

Associate: 

Dated:	14 October 2021