Aldam and Cesari (No. 4)
[2020] FamCA 888
•22 October 2020
FAMILY COURT OF AUSTRALIA
| ALDAM & CESARI (NO. 4) | [2020] FamCA 888 |
| FAMILY LAW – COSTS – stay application dismissed – offer in writing to deal with stay application rejected by party against whom costs order made. |
| Family Law Act 1975 (Cth) s 117(2A) |
| Aldam & Cesari (No. 3) [2020] FamCA 849 Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121 Nolan v Nolan [2003] VSC 136 |
| APPLICANT: | Mr Aldam |
| RESPONDENT: | Mr Cesari |
| FILE NUMBER: | MLC | 9029 | of | 2018 |
| DATE DELIVERED: | 22 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | On the papers |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms C. Conlan |
| SOLICITOR FOR THE APPLICANT: | Blackwood Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
On or before 4pm on 23 November 2020 the respondent must pay the applicant’s costs of and incidental to the stay application on 6 October 2020 in the sum of $4,328.20.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldam & Cesari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9029 of 2018
| Mr Aldam |
Applicant
And
| Mr Cesari |
Respondent
REASONS FOR JUDGMENT
Following the dismissal of Mr Cesari’s stay application[1] Mr Aldam has sought orders requiring Mr Cesari to pay Mr Aldam’s costs.
[1]Aldam & Cesari (No. 3) [2020] FamCA 849.
Mr Aldam sought payment of the sum of $4,328.20, or the sum of $3,452.13 according to scale.
For the purposes of s 117(2A) of the Family Law Act, Mr Aldam relied on s 117(2A)(f) by contending that he had made an offer in writing to settle the stay application and that Mr Cesari pressed his stay application in the face of that offer.
By letter dated 4 October 2020 from Mr Aldam’s solicitors to Mr Cesari, Ms Sturgeon, Mr Aldam’s solicitor, put the proposal there recorded with a view to avoiding the costs of the appearance on 6 October 2020. Ms Sturgeon’s letter was as follows –
Aldam and Cesari - Family Law Matter
We refer to your application for a stay of the orders made 4 September 2020 served on our office late Friday 3 October 2020.
Without admitting the merits of your application for a stay of the orders but to avoid the costs of the hearing on Tuesday 6 October 2020, Mr Aldam will consent to a stay of order 2 (default provision) of the Orders made 4 September 2020 pending the finalisation of your Appeal.
The effect of a stay on order 2 is that it will stay the sale of the T Street and B Street properties if you do not make the payment outlined in order 1 pending the finalisation of your Appeal.
If you agree, an order can be submitted to His Honour’s chambers by consent and avoid the necessity of the appearance on Tuesday.
If you do not agree and there is a hearing, Mr Aldam will seek the dismissal of your application for a stay and in the alternative, the only order stayed be order 2 (the default provision) to preserve the two properties in your name pending the finalisation of the appeal. Mr Aldam will seek an order for you to pay his costs of the appearance and rely on this correspondence in support of that application. We estimate those costs to be $3,000.
Please advise whether or you agree to resolve your application for a stay as outlined above by no later than 3 pm on Monday 5 October 2020.
Bankruptcy
You have recently indicated to Mr Aldam that you have a Trustee in Bankruptcy.
Please provide the name and contact details of the Trustee by return email.
Mr Cesari provided his response by email on 4 October 2020. It was in the following terms –
Thank you for your email.
Please advise your client that I do appreciate his offer to stay order 2 only, however I kindly must decline this and will be proceeding on a stay of all the orders made by Justice Wilson on September 4.
In the coming days I will provide you the name of the barrister I have selected to appear for me at the appeal.
Where we will show the merit of our argument and the unfairness of these orders.
On behalf of Mr Aldam, Ms Conlan of counsel submitted that in accordance with the observations of Dodds-Streeton J in Nolan v Nolan,[2] the offer was sufficiently precise to be meaningful and Mr Cesari’s decision to reject the proposal was unreasonable. Ms Conlan called in aid the decision in Alpine Hardwoods (Aust) Pty Ltd v Hardys Pty Ltd (No 2).[3]
[2] [2003] VSC 136.
[3] (2002) 190 ALR 121.
In my view, Mr Cesari’s rejection of the offer was unreasonable. He failed in his stay application. He could have achieved a different outcome by accepting Ms Sturgeon’s proposal.
Mr Cesari did not file any submissions on this application despite having until 4pm on 20 October 2020 to do so pursuant to my orders made on 6 October 2020.
His approach enlivened the making of a costs order against him.
As to the amount, the sum sought of $4,328.20 is plainly reasonable. I make an order for Mr Cesari to pay that sum within 30 days.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 22 October 2020.
Associate:
Date: 22 October 2020
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