Awataman and Lahri (No 2)

[2011] FamCA 679

FAMILY COURT OF AUSTRALIA

AWATAMAN & LAHRI (NO 2) [2011] FamCA 679

FAMILY LAW – warrant for the possession of real property – COSTS – Respondent to pay costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Awataman

RESPONDENT: Ms Lahri

FILE NUMBER: MLC 3819 of 2010

DATE DELIVERED: 12 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pandeli

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

THE RESPONDENT: No appearance

Orders

1. That a warrant for the possession of real property in respect of the real property at B Street, Suburb C issue seven days after the service upon the respondent of this order.

2. That upon the solicitor for the applicant notifying the Associate to the Honourable Justice Cronin of the service of this order upon the respondent by ordinary post addressed to B Street, Suburb C, the warrant for possession referred to in paragraph 1 of these orders issue to the applicant to be delivered to the Marshal, all Agents of the Australian Federal Police and/or all Officers of the Police Force for the State of Victoria for execution.

3. That the Marshal and all Agents of the Australian Federal Police and all Officers of the Police Force for the State of Victoria are authorised and directed with such assistance as is required, and if necessary by force, to enter the premises at B Street, Suburb C and to remove the respondent Ms Lahri therefrom and to give vacant possession to the applicant.

4. This order will remain in force until 11 July 2012.

5. That the wife pay the husband’s costs fixed in the sum of $2883.52 such sum to be paid from the wife’s entitlement referred to in paragraph 5 of the orders made on 3 May 2011 and the husband is authorised by this order to reduce that sum accordingly.

6. That the application in a case filed 6 July 2011 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Awataman & Lahri 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 MELBOURNE

FILE NUMBER:  MLC 3819 of 2010

Mr Awataman

Applicant

And

Ms Lahri

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed 6 July 2011 by Mr Awataman.  The respondent is Ms Lahri.  It is now 15 minutes past the time to start the matter, and there has been no appearance of Ms Lahri.  It will be noted that Ms Lahri did not attend the hearing on 3 May 2011 when the final property orders were made. 

2. I have read the two affidavits of Mr D, leave for which has been given to file today.  Mr D deposes to the fact that he went to the former matrimonial home and was unsuccessful in speaking to Ms Lahri, so he left the documents inside the security door but then attended at E Pty Ltd premises in Suburb F, which I note in the previous material is the address of Ms Lahri.  He shows in the affidavit that he had some discussion with Ms Lahri, and she accepted the documents and signed an acknowledgement of them.  The signature on the acknowledgement is similar to a previous document on the court file of a similar nature.  I am satisfied that Ms Lahri is aware of the proceedings today and has chosen again not to participate. 

3. The application today seeks that a warrant of possession issue to give effect to the orders that I made on 3 May 2011.  Those orders provided that the wife vacate the property by no later than 4 pm on 30 June 2011.  I have read the affidavit of Ms G setting out the details of the service of the orders, and it is clear that Ms Lahri has received the documentation and is simply ignoring the orders.  Mr Awataman swore an affidavit which was filed on 6 July indicating that on 30 June he went to the premises and after the wife had left the property, he went inside, and it was apparent that she has not vacated.  He therefore has every right to seek an order that a warrant for possession issue, and I propose to make that order.

4. In addition, the application in a case also sought that Ms Lahri pay Mr Awataman’s costs associated with this particular proceeding on an indemnity basis. Section 117 of the Family Law Act (Cth) provides that each party shall bear their own costs unless there is a justifiable circumstance to depart from that principle, and if the Court decides that there is such a circumstance, then it is obliged to take into account the matters set out in section 117(2A). It is quite clear in this case that Ms Lahri is not assisting in the resolution of the dispute between she and Mr Awataman, and the order of 3 May was simple and clear. She made it clear back in May what her position was, and it seems nothing has changed.

5. Mr Awataman has had to go to the trouble of bringing further proceedings to give effect to the orders, and on that basis, there is a justifiable circumstance to make an order for costs. It will be evident also from the orders of 3 May that Ms Lahri is to receive over $200,000 from the property settlement, and it would appear from the service documents that she is in employment. On that basis, I can be satisfied that her financial circumstances are such that she could afford to pay costs. There are other matters in section 117(2A), one of which is the question of compliance with court orders, and this is a classical example of someone who is simply defying the court orders. On that basis, it is appropriate to make an order for costs.

6. The applicant goes one step further, though, and seeks indemnity costs.  Indemnity costs means that the applicant seeks that all of the costs that they will incur as a result of engaging their lawyers should be covered in circumstances where it may amount to a sum in excess of what the scale of costs under the Rules would provide.  In this particular case, I am satisfied on the material presented to me that Mr Awataman will incur significant costs.  Whilst I do not have a copy of the formal cost agreement, looking at the amount of costs claimed, they would not appear to me to be excessive or much more than what would be claimed were the scale applied, in any event.  In those circumstances, I think the costs incurred by Mr Awataman should be covered in full by an order against Ms Lahri. 

7. The costs claimed are $2111.52, and those have been itemised together with the costs of appearance today, noting that Ms Pandelis is a solicitor who has had to come into the city and will therefore have travelling time which will have to be covered by her client.  Under those circumstances, a further sum of $772 is claimed, and that seems to me to be reasonable.  The difficulty in this case is getting any cooperation from Ms Lahri, but in the orders that I made on 3 May, it was provided that Mr Awataman pay Ms Lahri $226,000 less the costs that I ordered on that occasion of $3228.55.  It seems appropriate in the circumstances to reduce that $226,000 by a further $2883.52, and I propose to make those orders to avoid any further dispute between the parties. 

ORDERS DELIVERED

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 July 2011

Associate: 

Date:  2 August 2011