FAMILY COURT OF AUSTRALIA
| ATKINS & HUNT AND ORS | [2018] FamCA 14 |
| FAMILY LAW – PROPERTY – Interim – Where in a matter remitted for by the Full Court for rehearing the wife seeks interim property orders for the husband to pay $412,000 on account of, or for application to, her legal costs and disbursements in instalments over 150 days and to pay her share of the costs of the single expert real property valuer – Where in the alternative the wife seeks a lump sum interlocutory costs order without the provision for that payment to be graduated or further in the alternative a dollar for dollar order – Where the wife seeks a final property settlement adjustment of 40 per cent of the net assets on the basis that she asserts the husband disposed of an asset which was his alter-ego and had an agreed value of in excess of $11 million – Where the husband says the wife should receive no further adjustment – Where, although overall the husband is in a significantly stronger financial position than the wife it is not appropriate to make an interim property order and it is more appropriate to deal with the matter pursuant to s 117 of the Family Law Act 1975 (Cth). FAMILY LAW – PROPERTY – COSTS – Interim – dollar for dollar order – Where consideration is given to whether the court can make a dollar for dollar order at a time when the quantum of future costs is not ascertainable – Where the overriding question is whether or not there are circumstances that justify making an interlocutory costs order which is just in the circumstances of a particular case and a dollar for dollar order is not precluded because its quantum is uncertain – Where it is unable to be found that an interlocutory lump sum costs order is just but it is just for a dollar for dollar to be made – Where the husband is to fund the valuations of the single expert real property valuer – Where leave is given to the wife to make a further application in relation to the costs of a forensic account – Where how the payment of interlocutory costs are treated at the final hearing will be a matter for the trial judge. |
| Family Law Act 1975 (Cth) DJL v The Central Authority (2000) 201 CLR 226 |
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- AGLC
- Atkins & Hunt And Ors [2018] FamCA 14
- Case
- [2018] FamCA 14
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether it could make an interim property adjustment, and in relation to costs, whether a "dollar for dollar" order was appropriate, particularly given the uncertainty of future costs. The court considered whether the circumstances justified an interlocutory costs order that was just, and concluded that while a lump sum interlocutory costs order was not justified, a dollar for dollar order was appropriate. The court also addressed the funding of valuations and the wife's ability to engage a forensic accountant.
Watts J reasoned that an interim property adjustment was not warranted in the circumstances, preferring to address property division at the final hearing. Regarding costs, the court found that the uncertainty of future costs did not preclude a dollar for dollar order, as the overriding consideration was whether such an order was just. The court ordered the husband to pay the accounts of the single expert real property valuer. Furthermore, pursuant to section 117 of the *Family Law Act*, the husband was ordered to pay to the wife's lawyers, within seven days of his own legal costs being paid, an equivalent amount to be applied towards the wife's legal costs and expenses. Leave was granted to the wife to make a further application concerning the costs of a forensic accountant. The treatment of these interlocutory costs at the final hearing was reserved for the trial judge.
Orders
Orders of the court
1.
The husband do all acts and things necessary to pay the accounts rendered by Mr VV in respect of all real estate valuation reports prepared by him indicating the market value of each of the following properties:
1.1. The 2 parcels of land known as PH Street, Town W, being the land contained in Folio Identifiers:
1.1.1. …;
1.1.2. …
Registered in the name of N Pty Ltd.
1.2. The property situate and known as 2 PH Street, Town W, being the land contained in Folio Identifier … registered in the name of N Pty Ltd.
1.3. The 5 parcels of land known as 1 XX Street, Suburb YY being the land contained in Folio Identifiers registered in the name of N Pty Ltd:
1.3.1. …;
1.3.2. …;
1.3.3. …;
1.3.4. …; and
1.3.5. ….
1.4. The property situate and known as 2 XX Street, Suburb YY, being the land contained in Folio Identifier … registered in the name of N Pty Ltd.
1.5. The property situate and known as 3 XX Street, Suburb YY being the land contained in Folio Identifier … registered in the name of N Pty Ltd.
1.6. The property situate and known as ZZ Street, Town K being the land contained in Folio Identifier … registered in the name of N Pty Ltd.
1.7. The property situate and known as 4 XX Street, Suburb YY being the land contained in Folio Identifier … registered in the name of F Pty Limited.
1.8. The property situate and known as AW Street, Town C being the land contained in Folio Identifier … registered in the name of Ms Atkins.
2.
Pursuant to s 117 Family Law Act 1975 (Cth), from the date of these orders and within 7 days after payment by or on behalf of the husband of any monies in payment of accounts:
2.1. rendered by lawyers (solicitors or counsel) for the husband in connection to these proceedings;
2.2. rendered by accountants engaged by the husband or the solicitors for the husband to value the interest of the husband and wife in any business, company, trust or entity; or
2.3. rendered by valuers (apart from the valuer referred to in order 1) engaged by the husband or the solicitors for the husband to report on and value the real estate and personal property of the husband in any business, company, trust or entity in which he has an interest;
the husband pay or cause to be paid the same amount of money to the trust account of the lawyers for the wife, to be applied to her legal costs and expenses in connection to these proceedings.
3.
Within 24 hours after the payment by or on behalf of the husband of any money referred to in order 2, the husband cause to be given to the wife’s lawyers, a memorandum stating the amount or amounts so paid to the lawyers.
4.
The husband instruct his lawyers that all money paid to them including on his behalf, as referred to in order 2, shall be held in trust by them and not applied in payment until such time as the same amount has been paid by or on behalf of the husband to the lawyers for the wife on the record from time to time in these proceedings.
5.
In the event that the payment to the wife referred to in order 2 is not made within seven (7) days thereafter, the husband is to direct his lawyers to pay 50 per cent of whatever is received (as referred to in order 4 and held by them in trust), to the lawyers for the wife.
6.
The wife instruct her lawyers that the sums paid or cause to be paid by the husband to the lawyers for the wife pursuant to the preceding orders be applied by the lawyers for the wife in payment of the costs and disbursements incurred or to be incurred by the wife in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements:
6.1. Rendered by solicitors or counsel for the wife;
6.2. Rendered by accountants engaged by the wife or the solicitors for the wife to value the interests of the husband in any business, company, trust or entity; or
6.3. Rendered by valuers (apart from the valuer referred to in order 1) engaged by the wife or the solicitors for the wife to report on and value the real and personal property relevant in these proceedings.
7.
The question of how these payments of costs to the wife under orders 2 and 5 are to be treated at the final hearing shall be a matter for determination by the trial judge.
8.
Leave is granted to the wife, on 14 days notice, to make any application she needs to make to assist her to pay a forensic accountant so that she can put her case as to the values of relevant entities and businesses at relevant times.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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