Allan and Allan and Ors

[2016] FamCA 326

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN AND ORS [2016] FamCA 326

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr L

1^ST RESPONDENT: EE Pty Ltd

2^ND RESPONDENT: FF Pty Ltd

3^rd RESPONDENT: Mr RR

4^th RESPONDENT: Ms C Allan

5^th RESPONDENT: Mr DC

FILE NUMBER: SYC 3842 of 2008

DATE DELIVERED: 2 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 2 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

SOLICITOR FOR THE RESPONDENTS: No appearance

Orders

1. The Application in a Case filed 15 December 2016 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Allan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).   

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3842  of 2008

Mr L

Applicant

And

EE Pty Ltd 

1^st Respondent

And

FF Pty Ltd 

2^nd Respondent

And

Mr RR 

3^rd Respondent

And

Ms C Allan

4^th Respondent

And

Mr DC 

5^th Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Listed for hearing before me today were applications contained in an Application in a Case filed 15 December 2015. Those applications renamed various parties to the proceedings so that:

   1.1.Mr L became the applicant in this application;

   1.2.EE Pty Ltd became the 1^st respondent;

   1.3.FF Pty Ltd became the 2^nd respondent;

   1.4.Mr RR became the 3^rd respondent;

   1.5.Ms C Allan became the 4^th respondent; and

   1.6.Mr DC became the 5^th respondent.

2. The orders that were sought by the applicant were:

   1.The 1^st respondent and the 2^nd respondent pay the costs of the applicant; or in the alternative:

   (a)     The 3^rd respondent pay the costs of the applicant; and

   (b)    The 4^th respondent pay the costs of the applicant.

   2.The 5^th respondent pay the costs of the applicant.

   3.The applicant have leave to file an Amended Application in a Case and supporting affidavit setting out:

   (a)     Amended orders providing for the respondents to pay the costs of the applicant in fixed sums on a party/party basis;

   (b)    Relevant evidence setting out the basis for those costs, including itemised schedule of costs.

3. The Application in a Case was filed 15 December 2015. It was set for hearing before me at 2.15pm on 2 May 2016. The applicant is represented before me. There is no appearance by the 1^st to 5^th respondents.

4. In support of the application, the applicant relies upon an affidavit of Mr KE affirmed 15 December 2015 and filed on that same day.

5. EE Pty Ltd and FF Pty Ltd made applications before me in the course of these proceedings which I dealt with on 17 November 2015 by dismissing their applications. At [10] of the Reasons published in relation to those orders, I noted that the orders sought by the two companies were opposed by the 7^th to 11^th respondents and the wife, but supported by the husband. There is no record in the Reasons as to what the position of the 13^th respondent, now the applicant, was in respect of those applications. The lawyer for the applicant concedes there is no such evidence before me.

6. A more fundamental difficulty in dealing with application 1 as sought in the Application in a Case is there is also a concession that there has been no service on the 1^st – 4^th respondents to this Application in a Case. There has not been any application between 15 December 2015 and to date for any order for substituted service, dispensation of service or any other order relating to difficulties with service.

7. Accordingly, I dismiss application 1 as sought in the Application in a Case.

8. Application 2 seeks orders against Mr DC. Mr DC did not participate in the final proceedings but was trustee of the M Trust at various times during the proceedings. There are two difficulties with the application. The first is that the lawyer for the applicant now seeks to assert that any claim for costs needs to be made against the current trustees of the M Trust which he tells me from the bar table is M Nominees Pty Ltd and he also tells me that it is his understanding that Ms C Allan is the current sole director of that company. No such application was before me. More fundamentally however, again there has been no service of the application filed 15 December 2015 on Mr DC and there has been no application between 15 December and today’s date for any orders relating to substituted service, dispensation of service or any other matter to do with service.

9. For those reasons, application 2 in the Application fails. I dismiss application 2 in the Application in a Case filed 15 December 2015.

10. In relation to the third order sought, that is for leave to file an amended application with amended supporting material, nothing has happened between 15 December 2015 and now in relation to that application. The matter was set for hearing today. I do not give the leave sought. I therefore dismiss application 3 in the Application in a Case filed 15 December 2015.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 2 May 2016

Associate: 

Date:  5.5.16