Bacu and Bacu (Costs No. 1)

[2010] FamCA 973

FAMILY COURT OF AUSTRALIA

BACU & BACU (COSTS NO. 1) [2010] FamCA 973

FAMILY LAW – COSTS – application for costs of application determined on 1 October 2010

Family Law Act 1975 (Cth)

APPLICANT: Ms Bacu

RESPONDENT: Mr Bacu

FILE NUMBER: PAF 1866 of 2004

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McFarlane

COUNSEL FOR THE RESPONDENT: Mr McGrath

Orders

1. The husband pay the wife's costs of the application determined on 1 October 2010 as agreed or as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Bacu & Bacu (Costs No. 1) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1866 of 2004

MS BACU

Applicant

And

MR BACU

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs made by the wife orally on 1 October 2010 for her costs of the application determined on 1 October 2010.  This relates to an application filed by the husband to, effectively, alter orders which had been made on 10 March 2010 for a number of events to occur leading up to fresh valuation of stock.  The husband sought to reinstate a former single expert who had been engaged to value the stock and to have that expert update the report for the purpose of a hearing.

2. That application followed upon orders which had been made by me on 24 May 2010 requiring the parties to file their evidence to support their applications.  Those directions were made after the failure of the orders made on 10 March 2010 to produce a process which could reasonably be seen to lead to the production of a valuation of stock, about which neither party could have any significant complaints.

3. At the time the application was heard, on 1 October 2010, the pathway for this case appeared to be that it was headed for a hearing without any valuation of stock and each party was to put their case to the Court about what the Court should do about those circumstances at such hearing.  The husband was wholly unsuccessful in his application which was determined on 1 October 2010.  It was submitted that there was no basis for the application.

4. The wife relies on the financial circumstances which she relied on for the costs order that I have already determined today.  The wife seeks an order that the husband pay the wife's costs of the application determined on 1 October 2010 as agreed or as assessed.

5. The husband submits that the determination of this matter should await the final hearing to see if there was some attempt by the wife to influence the single expert in some inappropriate way.  This is an attack on the wife's solicitor and addresses correspondence and/or communications between the wife's solicitor and a former single expert.  It being said that there was some aspect of inappropriateness about that.

6. The articulating of an allegation of misconduct by the wife’s solicitor gives rise to what appears to be an inevitable conclusion that the wife's solicitor will become a witness in the proceedings.  It seems to me that if that is what is being pursued, then the application, which perhaps should have been contemplated to address that concern, is one which might injunct the wife's solicitor from further acting.  For that application to be heard, clearly, the husband would have to enunciate what his allegation is and there would need to be an appropriate hearing about that particular matter.

7. In the hearing, which was determined on 1 October 2010, there was no application to cross-examine the wife's solicitor in that hearing nor was she cross examined.

8. In my view the matters raised by the wife, in this costs application, do warrant an order being made and I propose to order that the husband pay the wife's costs of the application determined on 1 October 2010, as agreed or as assessed, and I so order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench J delivered on 26 October 2010

Associate: 

Date:  3 November 2010