C Pty Ltd (in Liquidation) and Karbines & Anor

[2010] FamCA 118

FAMILY COURT OF AUSTRALIA

C PTY LTD (IN LIQUIDATION) & KARBINES AND ANOR [2010] FamCA 118

FAMILY LAW – COSTS – where costs order made – application to fix the quantum of the liquidator’s costs – held appropriate to exercise discretion to fix costs to avoid further delay and cost of an assessment

FAMILY LAW – ORDER – where the husband seeks a stay of enforcement of the order – where no official application filed – inappropriate for the Court to exercise discretion to stay enforcement

FAMILY LAW – COSTS – application by the liquidator for costs of attendances – husband wholly unsuccessful – husband ordered to pay liquidator’s costs

Family Law Act 1975 (Cth)

APPLICANT: C Pty Ltd (In liquidation)

FIRST RESPONDENT: Mr Karbines

SECOND RESPONDENT: Ms Karbines

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thomas

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Vozzo

SOLICITOR FOR THE FIRST RESPONDENT: Patrick Cash & Associates

COUNSEL FOR THE SECOND RESPONDENT Mr Jordan

SOLICITOR FOR THE SECOND RESPONDENT Maddens Lawyers

Orders

1. The husband pay the 1^st Intervener C Pty Ltd (In Liquidation) costs in the sum of NINE THOUSAND NINE HUNDRED DOLLARS [$9,900.00].

2. The husband and wife pay the 1^st Intervener C Pty Ltd (In Liquidation) costs in the sum of TWENTY THOUSAND FIVE HUNDRED DOLLARS [$20,500.00].

3. The husband pay the 1^st Intervener C Pty Ltd (In Liquidation) costs of the attendances on the 12 November 2009;  23 November 2009;  22 January 2010 and today fixed in the sum of TWO THOUSAND DOLLARS [$2,000.00] such amount to be payable within TWENTY-ONE [21] days from today.

4. The Application in a Case filed by the 1^st Intervener C Pty Ltd (In Liquidation) on 21 September 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym C Pty Ltd (In Liquidation) & Karbines is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479 of 2005

C  PTY LTD (IN LIQUIDATION)

Applicant

And

MR KARBINES

Respondent

MS KARBINES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter that comes on before me today for the intervener, the liquidator’s, quantum of costs against the husband in the first one instance and against the husband and wife in the other instance. 

2. The proceedings between a husband and wife have been going for years.  The proceedings in which the liquidator has been involved have been going for a shorter time but have been going for a substantial period of time.  Orders have already been made in relation to costs and the matter comes on today before me on the application of the liquidator to fix a sum. The question of my jurisdiction is not in doubt.  I can make such order as appears just, taking into account the circumstances. 

3. I have, on file before me, an affidavit of one of the solicitors for the liquidator confirming that the itemised costs accounts were prepared by a costs expert based on the Family Court scale.

4. I am being asked to make an order for a fixed sum in relation to both instances to avoid the costs, expense, time and delay of an assessment of each item of costs by a registrar of this Court.  The amount claimed against the husband on his own is the sum of $9957.91 and the amount claimed against the husband and wife is $29,858. 

5. No submissions have been put to me which would suggest that the matter should be referred to the taxation to a Registrar. 

6. Mr Vozzo attends representing the husband and asks that the Court delay the enforcement of any order pending an appeal to the High Court which “is being contemplated” (being the words of the counsel for the husband). 

7. The counsel for the wife was unable to assist in relation to the amounts and indicated that taxation was not sought. He however queried the ability to recover on a regular basis what represents 100 per cent of the amounts sought in any initial claim by anyone seeking costs in this jurisdiction.

8. Firstly I deal with the question of the husband’s application to stay the enforcement of any order pending an appeal.  There is no official application before the Court for a stay. I could make such an order in my discretion if it were appropriate bearing in mind that this is the hearing of the application for to fix the sum for the costs.  However, that the question of an appeal from my orders was the subject of a Notice of Appeal.  Compliance did not occur within appropriate time and the appeal was deemed to be abandoned.  Justice Strickland rejected an application to reinstate the appeal on 15 October 2009. There has been nothing officially filed or undertaken since then.

9. Bearing in mind the history of delay and non-compliance by the husband in these proceedings I am not satisfied that it is appropriate to exercise any discretion I have to stay the enforcement of the moneys due.  Quite the contrary, I am told that the auction of one of the properties, being the property the subject of the litigation between the liquidator and the parties, is set for auction in March 2010.  Therefore the discretion would indicate that it would be far better for enforcement to take place immediately.  Should it transpire that any application is actually made then that would be dealt with in the appropriate manner. 

10. I am therefore satisfied that I have the discretion to fix costs and that I should exercise it this morning to avoid the further delay and cost to the parties of any other proceedings.

11. I propose to order that the sum be $9,900 to be paid by the husband and the sum against the husband and wife be the sum of $20,500. Both figures have been rounded down slightly to overcome any possible difficulty that might have been incurred should some of the figures in the specific accounts be disallowed for some reason.  Having perused the two accounts, however, I am satisfied that on the face of it, bearing in mind my knowledge of the proceedings before the Court that they appear to be reasonable and appropriate.  Therefore the orders that I make are that the sums are fixed as far as the husband is concerned at $9900, and as far as the husband and wife are concerned $20,500.

12. The liquidator seeks costs of the attendances surrounding the applications on today and the previous three occasions.  On those occasions the matter was before the Court and the husband in my view has been wholly unsuccessful in relation to the applications.  The further dealings with the matter indicate that the discretion that I have in section 117 should be exercised in the liquidator’s favour. 

13. The amounts sought for the attendance of instructing solicitor and counsel are reasonable.  I make an order that the husband pay the liquidator’s costs of those attendances fixed in the sum of $2,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  22 February 2010