Banks and Bevan

[2011] FamCA 527

FAMILY COURT OF AUSTRALIA

BANKS & BEVAN [2011] FamCA 527

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Banks

RESPONDENT: Ms Bevan

FILE NUMBER: SYC 3144 of 2007

DATE DELIVERED: 6 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 4 July 2011 and written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Burreket

RESPONDENT: Ms Bevan

Orders

1. The wife is to pay to the husband:

   (a)in respect of his claim for costs in the proceedings initiated by him for a writ for possession the sum of $5,920 and

   (b)the wife is to pay the husband costs in respect of her application to extend time the further sum of $300

   making a total of $6,220, simultaneously with the receipt of her entitlements pursuant to the Order for settlement of property made on 2 December 2006 together with interest thereon from the date hereof to the date of payment at the rate or rates applicable under the relevant rules for the period or periods from today to the date of payment of the sum in full.

IT IS NOTED that publication of this judgment under the pseudonym Banks and Bevan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3144 of 2007

Mr Banks

Applicant

And

Ms Bevan

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application by the husband in these proceedings for an order for costs arising out of a judgment made by the Court in proceedings for the enforcement of final orders made with respect to the property of the parties and, more particularly, with respect to the premises situate at and known as

   
   

   Property T, Sydney.  Those final orders required that the wife vacate the property on or before 31 January 2011.  The application before the court by way of enforcement sought a writ of possession against the wife with respect to the property.

Background facts

1. A final judgment in property proceedings between the parties was made on

   
   

   21 December 2006 and it was ordered, inter alia, that the respondent vacate the premises at Property T, Sydney on or before 31 January 2011.

2. There were provisions that the husband had a right to buy out the wife’s interest in the property for a sum calculated in accordance with a formula.  The evidence before the Court specifies that the amount which the husband is obliged to pay the wife upon her vacation of the property in accordance with the formula is $238,175.

3. All things happened entitling the husband to possession of the property and he has proffered in exchange for possession the sum required to be paid by him.

4. The wife failed to give the husband possession of the property and the husband brought proceedings for the enforcement of the order.

5. An order was made for the issue of a writ for possession, such writ to lie in the Registry for 28 days to afford the wife the opportunity to vacate the premises voluntarily.  The matter was again brought before the Court on 4 July 2011 on an application of the wife, pursuant to liberty granted, for a 42 day extension of the period during which the writ would lie unexecuted.  Those proceedings were compromised and the writ was to lie for a further period of 21 days on terms in relation to payment of rent to the husband during that period.  There were other orders.  The costs of those proceedings were made costs in the cause.

6. In respect of the initial proceedings to procure enforcement of the Court orders, the husband seeks an order for indemnity costs in the sum of $5,420 and an order for costs of the submissions on costs of $500, totalling in all the sum of $5,920 or in the alternative an order for costs in a sum to be agreed or assessed.  No amount is specified as to the order for costs of the second application.

7. The wife does not consent to those orders and has provided written submissions in support of her objection.

Section 117 considerations

1. The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Family Law Act 1975 (“the Act”). In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117(2A) of the Act. Those matters are set out in the following sub sections of that section namely:

(a)    the financial circumstances of each of the parties to the proceedings

1. There is evidence that on compliance with the orders and the payment of the required sum, the wife will have funds sufficient to meet an order for costs of these proceedings particularly so since the amount to be ordered is a small sum by comparison to that amount.  The wife asserts in her submission that the husband’s financial position is better than her own but there is no evidence in relation to that and, of course, it is only one of a number of matters which would be taken into account in the determination before the Court.

(b)    whether any party to the proceedings is in receipt of legal aid and, if so, the terms of the grant of that assistance to that party

1. There is no evidence that either party is in receipt of legal aid.

(c)    the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

1. On the day of the hearing there was an unsuccessful application by the wife to adjourn the proceedings. In correspondence between the lawyers acting for the parties prior to the commencement of proceedings, it was suggested that the wife was considering making a claim for spousal maintenance and an application under section 79A of the Act.

2. The claims of the wife appear, in light of her employment, as to maintenance hard to maintain and her claim in respect of the order under Section 79A would be fraught with danger since the order was made four and-a-half years ago and remained unchallenged.

3. No such proceedings have been commenced and, in any event, would have been able to be prosecuted at the same time as complying with the order of the court.  The wife has asserted that on the return date of the application for the writ of possession that she only sought an adjournment of the proceedings so that she might pursue those claims.  They have not in fact been pursued and her application was in any event rejected.  It was clear that on that day she opposed the orders sought being made on that day.

4. The application of the wife for an extension of time seemed to the Court to be required by reason of her failure to pursue alternative accommodation.  It is noted that the wife is seeking alternate rental accommodation at this time.  Although a short extension was granted, it was on terms as to payment of rent.  The wife failed in her application for a longer extension in which she did not offer the same terms.

(d)     whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. The proceedings were necessitated by the failure of the wife to obey the orders of the Court.

(e)    whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The wife has been wholly unsuccessful in the application for a writ of possession proceedings and otherwise the husband has been successful.  The wife has not been unsuccessful in her second application for an extension of time, but she has been largely unsuccessful since the time allowed her by consent of parties is less than sought and on terms of payment of rent to the husband not previously proposed.

(f)     whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. There is no evidence of any relevant offer.  There were discussions between the parties following the expiration of the date initially set for the wife to vacate but it was clear by the end of February that those discussions had failed and the husband sought possession of the property in accordance with his solicitor’s original request made in 2010.

(g)    such other matters as the Court considers relevant

1. The failure of the wife to obey the orders has caused the husband to be denied the benefit of them.  It is not in the circumstances appropriate that the husband should have to bear the costs of their enforcement.

2. The wife it appears has been legally advised.  The wife was put on notice of an application for indemnity costs prior to the commencement of the proceedings.

3. It is submitted that the order for costs if made should be quantified to avoid further litigation between the parties in circumstances where the husband has suffered financial loss as a result of the wife’s failure to comply with orders.  With this submission the Court agrees.

4. Part of the costs incurred by the husband was incurred by him in dealing with threats of other proceedings against him by the wife in answer to his claim for enforcement of the order already made.  The Court accepts that as part of the process of bringing proceedings for enforcement he ought to as part thereof recover the costs of dealing with any matters raised by the wife in answer to those proceedings.

5. As to the question of indemnity costs, the Court has considered in relation to the husband’s primary application for enforcement the schedule of costs annexed to the submissions of the husband in these proceedings and finds them reasonable for a firm of the experience of the husband’s firm.

6. An order for indemnity costs is unusual and not lightly made but this is a case where the wife’s case had no merit and the whole proceeding was necessitated by her flagrant disobedience of the final property order made in the proceedings.  It would be unjust in the circumstances of this case if the husband were required to bear a proportion of the costs of procuring what was his entitlement in circumstances where no tenable defence was made by the wife to the claim.

7. Accordingly, I find it just to and make the Orders set forth above.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 6 July 2011.

Associate: 

Date:  6 July 2011