Black and Milton

[2015] FamCA 1228

FAMILY COURT OF AUSTRALIA

BLACK & MILTON [2015] FamCA 1228

FAMILY LAW – COSTS – Application by the husband for costs – husband’s application that the wife withdraw a caveat over a property and that she be at liberty to lodge a caveat over another property as security for payment of a sum by the husband to the wife pursuant to previous orders –where the wife has previously consented to the withdrawal of the caveat – where the wife caused unnecessary delay and did not withdraw the caveat until approximately six months after the request was made – where the husband was wholly successful and the wife wholly unsuccessful – final orders made that the wife pay the husband’s costs in a fixed sum  

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rule 19.8

APPLICANT: Mr Black

RESPONDENT: Ms Milton

FILE NUMBER: MLC 5160 of 2015

DATE DELIVERED: 24 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 24 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Johnston

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The wife pay the husband’s costs of the wife’s Initiating Application filed 9 June 2015 fixed in the sum of $3,500 to be deducted from the sum of $50,000 to be paid by the husband to the wife pursuant to paragraph 11 of the orders made 22 August 1996.

2. The wife’s Initiating Application filed 9 June 2015 be otherwise dismissed removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Black & Milton 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 5160  of 2015

Mr Black

Applicant

And

Ms Milton

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 8 July 2015.  The application before me that day was the husband’s application seeking orders that the wife do all acts and things and sign all necessary documents to withdraw the caveat secured over the property known as B Street, C Town, and that the wife be at liberty to register a caveat over the title of the property at D Street, Suburb E.

2. The history of the matter is that final property orders were made on 22 August 1996.  Paragraph 11 of those orders provided:

   That upon the husband being entitled to be paid his superannuation entitlement … the husband shall pay or cause the trustee of the fund to pay to the wife the sum of $50,000...

3. Paragraph 12 of those same orders provided:

   That in order to secure performance by the husband of his obligations pursuant to paragraph 11 of these orders:

   …

   12.3 the wife be entitled at her own expense to lodge a charge in  respect of the husband’s interest in a property at [B Street, C Town] or in the event such interest be sold some further and appropriate security.

4. It is common ground that the security has been changed on a number of occasions.  There is no dispute that on 5 January 2015 solicitors for the husband wrote to the wife advising her that the husband intended to sell the property in C Town over which the wife had lodged a caveat and that enclosed in that letter was a withdrawal of caveat and a new caveat.  The wife engaged solicitors.  There were letters exchanged.  The wife’s solicitors then withdrew.

5. On 27 February 2015 and again on 18 May 2015, the solicitors for the husband forwarded correspondence to the wife repeating the request that she sign the withdrawal of caveat.  There is a dispute with respect to the letter that was sent on 18 May 2015, which is annexed to the husband’s affidavit, in that the wife says she did not receive that letter or a further letter which was sent on 29 May 2015, the significance of the letter of 18 May 2015 being that the wife, in that letter, was put on notice that proceedings would be issued in the event that she did not sign the withdrawal of caveat and return it to the solicitors for the husband.

6. The wife says from the bar table that she moved in January, although that move was next door.  Whilst she has received all other correspondence, she says she did not receive those two letters.

7. The application was filed and served on 9 June 2015 and, following service of those documents, there was a telephone communication by the wife to the solicitors for the husband on 17 June 2015.  On 1 July 2015, the wife returned the signed withdrawal of caveat.  On 8 July 2015, in order to ensure that the wife understood that the application for costs would be proceeding, the matter was adjourned to today’s date.

8. The husband seeks costs in the sum of $3,500 which he says he has incurred since 18 May 2015.  It is his case that his costs are substantially larger than that, but the costs sought by him are costs incurred from 18 May 2015, when the wife was first put on notice that proceedings would be issued.  The husband would say, in any event, that there was an order and that she did not comply with the order as and from that letter of 5 January 2015.

9. I know little about the husband’s financial circumstances except to say that he has a senior managerial position and I can assume from that that he earns a reasonable income.

10. The basis of the husband’s case is that the wife’s conduct in not signing the withdrawal of caveat when requested to do so, given the existence of a long-standing order, would justify the Court departing from the general rule that parties each bear their own costs.

11. The wife, for her part, says that she has been unwell, that she has been off work for some two months and not in receipt of any benefits, that she works part time and that she is in receipt of a partial disability allowance.  It is also her case that there is a huge discrepancy in the parties’ financial circumstances.  She also relies upon the fact, she says that she did not receive the two letters however, as previously referred to, the caveat securing her interest has been changed on a number of occasions.  I should also note that, although the orders provide that the wife be entitled to lodge a caveat at her expense and bearing in mind that the caveat is to secure her interest, the husband was prepared to pay for and did pay for the preparation of the withdrawal and the new caveat and the lodging of same.

12. Generally in proceedings in this Court parties bear their own costs. That general rule is qualified by s 117(2) of the Family Law Act1975 (Cth) (“the Act”), which provides that, if the Court is of the opinion that there are circumstances that justify it doing so, the Court may make such order as to costs as it considers just. Section 117(2A) of the Act sets out matters to which the Court must have regard in determining what, if any, orders should be made for costs, clearly insofar as they are relevant to each case.

13. In this case, although the evidence is limited, certainly on the basis of income alone, it would appear that the husband is in a superior position to the wife financially.  However, Ms Johnston has submitted that if that were a concern, that the payment of any order for costs could be made out of the $50,000 which, pursuant to the original orders made in 1996, is required to be paid to the wife when that money becomes available to the husband.  Neither party in this case is in receipt of legal aid.

14. The conduct of the parties in relation to the proceedings is the basis upon which it is primarily put that an order should be made.  It is not simply the conduct, as such, in relation to the proceedings, in my view, in this case, but there seems to be no explanation of any substance as to why, when requested to change a caveat to a different property when that has occurred before, that it did not occur on this occasion.  Arguably, the husband was wholly successful and the wife was wholly unsuccessful, given that she had signed the withdrawal of caveat and provided it to the solicitors for the husband prior to the proceedings, notwithstanding that occurred after those proceedings had been issued.

15. I am satisfied that in this case there are circumstances that justify an order for costs. Pursuant to rule 19.8 of the Family Law Rules 2004 (Cth), the Court may order that a party is entitled to costs:

    a)of a specific amount;

    b)as assessed on a particular basis;

    c)to be calculated in accordance with the method stated in the order; or

    d)for part of the case, or part of an amount, assessed in accordance with Schedule 3. 

16. I am not in a position to make a specific finding as to whether or not the wife did or did not receive the letter sent on 18 May 2015.  However, it does seem somewhat unusual, given that she received all of the other correspondence, notwithstanding that she moved in January, that she would not have received the two letters in May.

17. That being said, it is not those letters that found the application for costs.  It is the orders made in 1996 which specifically provide for alternative security.  It is the request for the wife to sign a withdrawal of caveat and the offer of alternative security in January 2015 that is the basis of that application.  That did not occur until 1 July 2015.  There is simply no explanation given for that and I am satisfied in all of the circumstances, the husband having being put to the expense of issuing proceedings,  that the wife should pay the husband’s costs.. In many respects, one might consider the husband was reasonably patient, given that he did not issue proceedings between January and June.

18. I am, however, satisfied that the appropriate order, given what would appear to be some financial difficulties that the wife has had in recent months, is that the payment of costs should be made out of the moneys which the wife is entitled to receive pursuant to paragraph 11 of the orders made 22 August 1996.   I propose to fix the costs in the sum of $3,500.  .

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 July 2015.

Associate: 

Date:  9 May 2016