Baker and Green and Kettle (No. 3) - [2007] FamCA 1653

FAMILY COURT OF AUSTRALIA

BAKER & GREEN & KETTLE (NO. 3)

[2007] FamCA 1653

FAMILY LAW – CHILD SUPPORT – Arrears – Orders for partial sale of property
FAMILY LAW – COSTS – Application by father wholly unsuccessful

APPLICANT/RESPONDENT:	MS BAKER
APPLICANT/RESPONDENT:	MS GREEN

APPLICANT/RESPONDENT:

MR KETTLE

FILE NUMBER:

(P)BRF

2360
1456

2002

2001

DATE DELIVERED:

7 September 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'REILLY J

HEARING DATE:

5 September 2007

REPRESENTATION

MS BAKER:

X Lawyers

MS GREEN:

X Lawyers

MR KETTLE:

Appeared in person

Orders

IT IS ORDERED

Peter John Sheehy, Solicitor, is appointed as trustee (the trustee) for the sale of the properties listed in annexure A to pay:

(a)the amount referred to in paragraph 15 of the orders made by the Honourable Justice Bell on 24 November 2006 in proceedings BRF2360/2002 namely $113,350 to X Lawyers and
(b)the amount referred to in paragraph 10 of the orders made by the Honourable Justice Bell on 24 November 2006 in BRF1456/2001 namely $125,140 to X Lawyers and
(c)the several costs orders referred to in paragraph 7

and those properties vest in the trustee for the purpose of sale.

After the vesting but prior to any sale or listing or advertising for sale, the trustee, after:
(a)consulting with Mr Kettle as to which contiguous or non contiguous lots it would be desirable for him to retain to continue his business of a farm and maintain his home;
(b)ascertaining which of the lots are subject to mortgage and the amount necessary to pay out any mortgage to give clear title of any lot to a purchaser; and
(c)obtaining such valuations as the trustee considers appropriate
prepare a brief report to the Court setting out his opinion as to which lots should be sold to pay the amounts referred to in paragraph 1.
After the sale of such lots and the payment in full of the amounts referred to in paragraph 1 the lots not sold revest in Mr Kettle.

The trustee has liberty to apply to the Court by arrangement with the Associate and on notice to the parties for such further orders or directions as he may require, including as to his report and the mode or manner of sale including any auction or auctions.

After the sale of the lots to be sold the trustee apply the proceeds of sale in such order and priority as he sees fits (whether at the settlement of any sale or sales or subsequently) as follows:

(a)any mortgages, rates, taxes, expenses and outgoings necessary to give clear title
(b)the costs of sale including agent’s costs, commission and auctioneer’s costs if any
(c)the trustee’s own costs
(d)$113,350 to X Lawyers
(e)$125,140 to X Lawyers
(f)$50,000 to be held by the trustee for the purpose of the payment of the costs orders referred to in paragraph 7
(g)the balance if any to Mr Kettle.

Upon payment of the amounts of $113,350 and $125,140 to X Lawyers they must hold those amounts in separate trusts for each of Ms Baker and Ms Green respectively to be paid to or at their written direction for the purpose of being used for child support for the children as intended and ordered by the Honourable Justice Bell.

The costs orders to be paid by the trustee are:

(a)$1,100 costs Mr Kettle was ordered to pay Ms Baker and $1,100 costs Mr Kettle was ordered to pay Ms Green by paragraph 7 of the orders made in each matter by Registrar Gassner on 9 September 2005

(b)$200 costs Mr Kettle was ordered to pay Ms Baker and $200 costs Mr Kettle was ordered to pay Ms Green by paragraph 7 of the orders made in each matter by Judicial Registrar Smith on 5 July 2006

(c)the costs Mr Kettle was ordered to pay Ms Baker and Ms Green by paragraph 2 of the orders made in each matter by the Honourable Justice Barry on 4 April 2007

(d)the costs Mr Kettle was ordered to pay Ms Baker and Ms Green by paragraph 5 of the orders made in each matter by the Honourable Justice O’Reilly on 14 June 2007 (as amended)

(e)the costs Mr Kettle was ordered to pay X Lawyers by paragraph 8 of the orders made in proceedings BRF2360/2002 by the Honourable Justice O’Reilly on 14 June 2007 (as amended)

(f)any costs orders which may be made by the Honourable Justice O’Reilly either today or on another date relating to the costs of Ms Baker’s and Ms Green’s enforcement proceedings (child support and cost orders) and the application in a case filed by Mr Kettle on 7 September 2007

(g)any costs orders which may be made by the Honourable Justice Bell (or another Judge) in relation to the trial before him on 13-17 November 2006, the applications for which on 17 August 2007 were by orders of the Full Court remitted to the Honourable Justice Bell for hearing, now listed before him on 20 September 2007

provided that all costs orders except those referred to in (a) and (b) be paid by the trustee only upon the presentation to him of cost assessment orders signed by a Registrar and issued under the seal of the Court.

Mr Kettle pay Ms Baker’s and Ms Green’s costs of and incidental to their amended applications in a case filed on 13 June 2007 (originals filed on 17 May 2007) to be assessed on the standard basis and payable by Mr Kettle upon the issue of cost assessment orders signed by a Registrar and issued under the seal of the Court.

The Regional Registry Manager of the Brisbane Registry of the Family Court of Australia make all necessary arrangements with the National Transcription Service (NTS) for Mr Kettle to purchase from it audio CDs of any proceedings in which Mr Kettle is or has been a party which Mr Kettle may in writing request, the cost of such purchase or purchases to be paid by Mr Kettle to NTS.

Otherwise, the orders sought by Mr Kettle in annexure A to each of his affidavits filed on 13 June 2007 and 5 September 2007 are refused.

Mr Kettle’s application in a case filed today is dismissed.

Mr Kettle pay Ms Baker’s and Ms Green’s costs of and incidental to Mr Kettle’s application in a case filed today fixed in the amount of $270.

Ms Baker’s and Ms Green’s costs applications in relation to the trial before the Honourable Justice Bell on 13-17 November 2006 be listed for hearing before the Honourable Justice Bell at 10am on 20 September 2007.

Annexure A

Lot 104	G 1
Lot 105	G 2
Lot 106	G 3
Lot 1	G 4
Lot 1	G 5
Lot 12	G 6
Lot 1	G 7
Lot 28	G 8
Lot 2	G 9
Lot 1	G 10
Lot 1	G 11
Lot 1	G 12
Lot 1	G 13
Lot 2	G 14
Lot 1	G 15
Lot 1	G 16
Lot 1	G 17

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Baker & Kettle, Green & Kettle.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: (P)BRF 2360 OF 2002 AND (P)BRF 1456 OF 2001

MS BAKER

AND

MS GREEN

AND

MR KETTLE

REASONS FOR JUDGMENT

EX TEMPORE

Mr Kettle’s application filed on 7 September 2007

In relation to par 1 of the application filed this morning by Mr Kettle that pars 1 to 7 of annexure A to his affidavit filed on 5 September 2007, being the document headed "Orders Sought", be referred to the Full Bench of the Family Court of Australia, I refuse that relief on the basis that I have no power to do that and that even if I had, in the exercise of my discretion I would not. The Full Bench of the Family Court of Australia may be constituted at times and for cases as seen fit and decided by the head of the Appeal Division and/or the Chief Justice, but that is not a decision which I as a Trial Division Judge can make, that is to purport to order the Appeal Division to do something. I will therefore refuse that relief. When appeals are instituted in the Full Court of this Court, that is in its Appeal Division, if the head of the Appeal Division decides that a matter warrants a hearing by the Full Bench, as I said that is up to her and/or the Chief Justice, plainly, not me.
I turn now to the par 2 of Mr Kettle's application relating to par 8 of the document described as "Orders Sought" seeking a stay of any child maintenance or departure order which purports to vary the Child Support Agency administrative assessments in place prior to 24 November 2006. I refuse that relief on the basis that presently there are no appeals on foot by Mr Kettle to the Full Court and no applications for permission to appeal out of time. I have already dealt with similar applications for a stay by Mr Kettle in respect of which I gave reasons for judgment on 14 and 15 June 2007 on several matters, the relevant paragraphs refusing the stay applications being pars 24 to 29. In those same reasons for judgment at pars 15 to 18 I refer to the history of the matter including Mr Kettle filing a notice of appeal in each of the Baker and Green matters on 22 December 2006, those appeals being deemed abandoned pursuant to Rule 22.56 of the Family Law Rules 2004 and Mr Kettle being notified of that by letters dated 21 March 2007, and two subsequent appeals instituted by Mr Kettle on 22 February 2007, again one in each of the Baker and Green matters, those appeals also being deemed abandoned pursuant to Rule 22.56 and Mr Kettle being notified of that by letters dated 9 May 2007. There have not been any further notices of appeal filed. There are, thus, no appeals on foot in relation to the orders made by the Honourable Justice Bell on 24 November 2006, on which date he made departure orders. There are no present applications for permission to appeal out of time with the consequence that I have no power to order a stay.
As to par 3 of Mr Kettle’s application relating to pars 9 and 13 of the document described as “Orders Sought”, I have already indicated to Mr Kettle two days ago that I will make an order in relation to his purchase from the National Transcription Service (NTS) audio CDs (par 9 of the document described). As to the reservation of costs (par 13 of the document described), I will hear from Ms E at the end of the day as to whether there is any application against Mr Kettle in relation to his application filed this morning all of which relief I have refused, except costs yet to be dealt with.

Ms Baker’s and Ms Green’s applications filed on 17 May 2007 as amended on 13 June 2007

I will now proceed with the matter that I came into Court yesterday at 9.30am, yesterday at 2pm, and this morning at 9.50am to do, but was not able to because of matters raised by Mr Kettle on which rulings were required, and that is to give judgment in the matter which was listed before me and argued on Wednesday, namely Ms Baker’s and Ms Green’s applications filed on 17 May 2007 as amended on 13 June 2007 seeking the enforcement of orders made by the Honourable Justice Bell on 24 November 2006 and of certain costs orders.
On 24 November 2006 in proceedings 2360 of 2002, the matter of Baker and Kettle, the Honourable Justice Bell made orders (as amended on 31 January 2007 under slip rule) as follows:
14.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $215.00 per week.
15.If the Father fails to comply with Order 14 of these Orders and falls into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $113,350 for the child [B].
16.Enforcement of Order 14 is adjourned to a date to be fixed, to be brought on in (sic) fourteen (14) days notice before the Honourable Justice Bell.
On 24 November 2006 in proceedings 1456 of 2001, the matter of Green and Kettle, the Honourable Justice Bell made orders (as amended on 31 January 2007 under the slip rule) as follows:
9.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $330.00 per week
10.If the father fails to comply with Order 9 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he shall forthwith pay to the Applicant's Solicitors, [X] Lawyers, the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.
11.Enforcement of Order 10 is adjourned to a date to be fixed, to be brought on in (sic)14 days notice before the Honourable Justice Bell.
Those orders were the subject of amendment under the slip rule on 31 January 2007. In my reasons for judgment given on 14 and 15 January 2007, pars 6 - 14, I referred to his Honour's proper use of the slip rule and at par 11 said:
11Pursuant to Rule 17.01(1) an order of this Court in a hearing or trial is “made” when it is pronounced, and pursuant to Rule 17.01(2) takes effect when it is “made” unless otherwise stated. Thus, the orders in this case were “made” when pronounced by the Honourable Justice Bell on 24 November 2006 and not the date of any subsequent amendment, signing, sealing or issue.
I would refer also to the circumstance that after the amendment of the orders under the slip rule on 31 January 2007, one of the orders, namely the order in the matter of Baker and Kettle, was re-engrossed, resealed and re-issued on 22 June 2007 for the reasons evident in the second notation to that order as so re-engrossed, resealed and re-issued on 22 June 2007.
On 29 May 2007, the Honourable Justice Bell, on application by Mr Kettle based upon an allegation of bias, disqualified himself from further hearing applications in the proceedings which then came to be listed before me, despite his Honour’s orders in the paragraphs mentioned above that the enforcement of the orders referred to be listed before him.
As is plain, the orders of the Honourable Justice Bell in Baker and Kettle(par 15) and Green and Kettle (par 10) are self executing in the sense that his Honour already has specified the consequence of default namely that if Mr Kettle should fall into arrears for three months in relation to the payments referred to in Baker and Kettle (par 14) and Green and Kettle (par 9) his property referred to be sold, so that the present exercise involves only my being satisfied that Mr Kettle has fallen into arrears as specified in his Honour’s orders for three months and if so satisfied providing machinery orders to carry into effect the mode of enforcement his Honour already has decided and ordered, namely that the default lump sums his Honour determined, having now become payable, should be paid (as his Honour plainly intended) from the proceeds of sale.
The affidavit evidence relied upon by Ms Baker and Ms Green proves in each case that Mr Kettle fell into arrears for three months and remains in arrears. See the affidavits of Ms Baker’s and Ms Green’s solicitor, Ms E, filed in each case on 30 August 2007. Indeed the circumstance of the arrears was admitted by Mr Kettle from the Bar table yesterday. This much is common ground.
Mr Kettle relied on matters referred to in several affidavits on which he relied, namely his affidavits filed on 7 November 2006 (one in each matter); 13 June 2007 (the same affidavit relied on in both matters); 17 August 2007 in the Full Court which I gave leave to him to read and file also in this Court, that affidavit being filed by leave in these proceedings on 5 September 2007; and also the further affidavit filed by leave on 5 September 2007 to which I have referred earlier today. For the sake of distinction, that affidavit is folio 178A, and the affidavit initially filed in the Full Court and filed in these proceedings on 5 September 2007 is folio 179.
Based on the evidence contained in these materials, Mr Kettle submitted that the orders for sale already made by the Honourable Justice Bell should not take effect.
However, having regard to the proof referred to, and Mr Kettle's admission referred to, plainly, the orders of the Honourable Justice Bell now do take effect.
I have carefully considered all of Mr Kettle's material, and his submissions, and am not persuaded by any of it that I have any discretion now, or at least one which ought to be exercised in Mr Kettle's favour, to not give effect to those orders of the Honourable Justice Bell already made. As I pointed out to Mr Kettle in argument, those orders bind me as much as him.
The property described by the Honourable Justice Bell as property at “[G]”, comprises some 400 acres and 17 discrete titles, on which Mr Kettle conducts the business of a farm and also resides.
Although on one reading of them, the literal reading, his Honour's orders are capable of being interpreted as meaning that all of that property be sold, whether or not all of it needs to be sold to enforce his Honour’s orders, it seems to me that the proper interpretation of his Honour's orders, which I take to be implicit in them, and intended by his Honour having regard to the necessity for fairness in justice, and that an enforcement remedy ought not be wider or more severe than necessary to satisfy the orders to be enforced, is that only so many of those discrete titles be sold as necessary to satisfy the enforcement of the orders.
In this regard, the property as described by the Honourable Justice Bell at the date of the trial in November 2006 had the value then of about $1.75 million with a mortgage debt of about $340,000, as referred to in my reasons for judgment given on 14 and 15 June 2007 at par 46, which in turn refers to pars 63 and 58 of the reasons for judgment of the Honourable Justice Bell given on 24 November 2006.
From the Bar table, Ms E, Solicitor, for Ms Baker and Ms Green, volunteered that the value of the property collectively has gone up since then.
The total of the lump sum debt ordered by the Honourable Justice Bell amounts to $238,490. Further, it is estimated by Ms E that about $50,000 will be required to enforce certain costs orders, that enforcement being the subject of separate applications by Ms Baker and Ms Green to which I will refer below, but in respect of which enforcement from the proceeds of sale of Mr Kettle’s property is also sought. Thus, the maximum amount which will be required to satisfy the debts will be about $288,490 plus, of course, all of the costs of sale and associated enforcement costs.
To effect what I take to be implicit in his Honour’s order therefore I intend, by the orders which I will make, that only so many of the 17 titles be sold as necessary to enforce the orders sought to be enforced and to meet the costs of sale and associated enforcement costs.
Peter John Sheehy, Solicitor, yesterday signed and forwarded to the Court a written consent to act as the trustee for sale (ex 2).
As will be recalled, when I came into Court on Wednesday, Ms E had the written consent of Brendan Michael Cuddihy, Solicitor, at Bundaberg, to act as trustee. However, when I came into Court yesterday at 9.30am to deliver judgment Mr Kettle objected to Mr Cuddihy. Then, Ms E proposed Anthony Stirling Biggar, Solicitor, who had also provided a written consent to act as trustee. However, as that solicitor is not someone known to me at all, and there were no evidence as to his level of experience and so forth, with the greatest of respect to him, I declined to appoint him as trustee.
Mr Kettle made clear to me, by his submissions, that if I appoint a trustee for sale he wished the trustee to be appointed to be either (1) the Public Trustee or (2) a person not living in the G area, because that is where Ms Baker and Ms Green's solicitors, X Lawyers, practise, or (3) a person nominated by the Court. Thus, as readily will be seen, I have acceded to Mr Kettle's expressed wish and independently nominated a trustee, Mr Sheehy, Solicitor, at Brisbane and I will appoint him as the trustee for sale.

I should add, as the record will show, that in argument yesterday or the day before when I proposed to the parties that I nominate Mr Sheehy and asked the Associate to approach him, Mr Kettle consented to that course, as did Ms E.
It will be necessary to order that all 17 titles vest in Mr Sheehy as trustee, as otherwise he would not be empowered to deal with or even enter each of the properties, and indeed would be a trespasser if he entered any property not vested to inspect it, and could not cause a valuer to enter the properties to value them in order to recommend to the Court which of the titles (as opposed to others) be sold for the enforcement purpose. I will make clear in the orders that prior to any sale or listing or advertising for sale, the trustee, after consulting with Mr Kettle as to certain matters which I will set out in the orders, ascertaining the state and extent of encumbrances and obtaining such valuations as he considers appropriate, provide a brief report to the Court as to his opinion then of which of the lots should be sold to pay the amounts which I have described, so that further Court direction in this regard then may be given. Plainly, after the sale of those lots and the payment in full of the amounts to which I have referred, the unsold properties should then revest in Mr Kettle and I will so order.
I have considered carefully whether only some of the titles should vest, rather than all of them, to avoid unnecessary documentation, dealing with the titles and cost. However, as explained, if all 17 titles do not vest the trustee could not perform properly his intended function, including the obtaining of valuations, without becoming a trespasser. In this regard, I am not prepared to delay the appointment of a trustee until valuations are obtained by the parties. First, Ms Baker and Ms Green ought not have to obtain and pay for valuations, where Mr Kettle is the party in default, and I am not prepared to order Mr Kettle to obtain valuations because he is a person who defies Court orders and the matters thus could not progress. Thus, whilst in some cases it may be appropriate to delay the appointment of a trustee and a vesting order until valuations are obtained, this is not one of them.
Ms Baker’s and Ms Green’s applications included (par 5(b) of each application) that the sale proceeds be further disbursed, by way of enforcement, to discharge Mr Kettle's outstanding costs liabilities pursuant to orders dated 30 August 2005, 5 July 2006, 4 April 2007, “and any further costs incurred in or in connection with these proceedings”, which I take to be a reference to any further costs orders which may be made.
It is common ground that the reference "30 August 2005" is a typographical error and should be a reference to costs orders made 9 September 2005.
Since then further costs orders have been made by me on 14 June 2007, and there are current costs applications with which I will deal below.
In relation to the costs of and incidental to the trial on 13-17 November 2006, on 9 February 2007 the Honourable Justice Bell dismissed Ms Baker’s and Ms Green's costs applications. Ms Baker and Ms Green appealed to the Full Court, which on 17 August 2007 allowed the appeals and remitted the costs applications to the Honourable Justice Bell for hearing. Those costs applications now are listed before him at 10am on 20 September 2007.
The first two sets of costs orders, that is those made on 9 September 2005 and 5 July 2006, have been fixed in the amounts of $1,100 and $200 respectively in each matter. The costs orders made on 4 April 2007 and on 14 June 2007 have yet to be the subject of assessment by a Registrar and the issue of cost assessment orders. Similarly, depending upon the result of the proceedings on 20 September 2007, there may or may not be further costs orders which, in order to be enforced if they are made, similarly, would have to be the subject of assessment before a Registrar and the issue of cost assessment orders, before any debt is created.
I have yet to hear Ms Baker’s and Ms Green's costs applications related to these enforcement proceedings, and of Mr Kettle's application filed this morning.
Mr Kettle, in argument, resisted that any costs orders should have been made at all, or should be made in the future, but otherwise did not resist that a trustee be appointed for the enforcement of such costs orders as either may be outstanding or become outstanding.
In those circumstances, I intend to make orders to include that the trustee's appointment extend to the sale of property for the payment of costs orders which I will specify in the orders, so that a complete finalisation may be made as to these matters. Thus, the several costs orders to be the subject of enforcement will be set out in the orders I propose to make and I need not make further specific reference here.
In argument, reference was made to the circumstance that for the purpose of the assessment of the costs orders which I made on 14 June 2007, I did not specify that I intended the costs to be assessed on the standard basis. I will therefore under the slip rule amend those orders to make clear that the costs be assessed by a Registrar on the standard basis and that they will become payable when signed and sealed cost assessment orders are issued. Plainly enough, the same will apply in relation to the costs orders made on 4 April 2007 and any other costs orders.
I will order that the trustee have liberty to apply for directions.

Further relief sought by Mr Kettle

I turn now to relief sought by Mr Kettle which is separate from the relief he sought by his application filed this morning with which I have dealt already.
Mr Kettle, by his affidavit filed on 13 June 2007, annexure A, set out in a document headed "Orders Sought" seven orders which he sought. However, as I explained to Mr Kettle during argument, I must refuse that relief (even overlooking procedural irregularity) with the exception of his seeking the purchase from NTS of audio CDs, on the basis that the relief sought otherwise is misconceived and beyond my power.
In his material, Mr Kettle made reference to s 66E of the Family Law Act 1975. That provision does not preclude the making of departure orders and has no relevance to the proceedings.

ORDERS MADE

Further costs applications

Application is made by Ms E, Solicitor, for Ms Baker and Ms Green, that Mr Kettle pay their costs of and relating to Mr Kettle's application which he filed this morning with which I dealt today.
As is plain by the brief reasons for judgment I gave this morning, that application was misconceived and hopeless.
Ms E has referred to the circumstance that Mr Kettle’s application was served at her office yesterday afternoon and that in preparation of submissions and material, and including time spent this morning, she estimates the costs at two professional hours for which the normal charge out rate is $220. She estimates that even on the Legal Aid basis upon assessment by a Registrar on the standard basis about $135 per hour would be allowed. She has indicated, sensibly, that if costs are awarded she would accept the amount of $270 all up as a fixed sum for both matters for the two professional hours engaged. If I award costs it would be sensible to fix such an amount to avoid assessment costs for such a small amount.
I am required to have regard to the matters in Penfold and Penfold (1980) CLR 311 at 385 which include that before making a costs order an essential preliminary is the finding of a justifying circumstance, the intent of the Act being that each party bear his and her own costs (s 117(1)), that provision however not having any paramountcy over s 117(2) so that it must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs. The relevant provision which empowers me to make a costs order provides that I must consider the matters in s 117(2A) of the Act.
The proceedings with which I was required to deal today by Mr Kettle's application filed today, notice of which was given yesterday to Ms E, have been wholly unsuccessful, and not only that, were hopelessly misconceived and wholly unmeritorious.
I have had regard to the financial circumstances of the parties. Ms Baker and Ms Green have been held out of ordered child support for their and Mr Kettle's respective three children for a considerable period of time now. Mr Kettle owns 17 parcels of land comprising a farm and his residence which, as at November 2006, had the value of about $1.75 million, less about $340,000 mortgage, and of which value more than $300,000, possibly up to $325,000-$350,000, will be taken in the orders I have already made in the proceedings today. I refer to statements made by Mr Kettle in relation to his financial circumstances in June of this year, which I have recorded in par 48 of the reasons for judgment which I gave on 14 and 15 June 2007, namely that he is in receipt of Centrelink benefits and that his overdraft on the farm property is to its maximum permissible extent so that in short he can borrow nothing further against the property. However, I am not persuaded that Mr Kettle does not have the financial capacity to pay the costs order sought, and I am satisfied that there is a justifying circumstance that he do so, being in the particular circumstances of this case at the last minute bringing a wholly unmeritorious application in which he has been wholly unsuccessful and which has caused Ms Baker and Ms Green to incur legal costs.
I will order costs therefore in the amount of $270, covering both matters.
Application is made by Ms E, Solicitor, for Ms Baker and Ms Green, for their costs of and incidental to the applications in a case filed by each of them on 17 May 2007, as amended on 13 June 2007, for enforcement of the lump sum child support provisions ordered by the Honourable Justice Bell on 24 November 2006, to which I have already made reference, and to enforce certain costs orders.
Although, in the sense which I have described, the Honourable Justice Bell’s orders were self executing, I accept, as is plain, that the filing of the applications in a case was necessary to put Mr Kettle on notice as to the specific mode of enforcement Ms Baker and Ms Green would seek, in particular in this case the appointment of a trustee for sale.
I would refer without repetition to the relevant principles relating to costs in Penfold's case, to which I have just referred, and turn now to the matters in s 117(2A). In this case, in my view, there is a justifying circumstance to order costs which is that the enforcement aspect of the proceedings have been necessitated by the failure of Mr Kettle to comply with the orders of the Honourable Justice Bell and failure to comply with the costs orders made on 9 September 2005 and 5 July 2006 (the other costs orders not yet being the subject of cost assessment orders). Also, to the extent to which Mr Kettle sought to resist enforcement by his several affidavits to which I have referred earlier today, and his submissions, he has been wholly unsuccessful, most of the matters he raised being not only unmeritorious, but also misconceived.
As to the financial circumstances of the parties I would refer, without repetition, to the observations just made and I find that Mr Kettle has the capacity to pay a costs order.
In the exercise of my discretion therefore, I will order that in each of Ms Baker’s and Ms Green's cases, their costs of and incidental to their amended applications in a case filed on 13 June 2007, originally filed on 17 May 2007, be assessed on the standard basis and be payable by Mr Kettle upon the issue of cost assessment orders signed by a Registrar and issued under the seal of the Court.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly.

Associate:

Date: