Callis and Callis (No. 2)

[2013] FamCA 1086

FAMILY COURT OF AUSTRALIA

CALLIS & CALLIS (NO. 2) [2013] FamCA 1086

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar or Deputy Registrar of the Family Court of Australia appointed to execute transfer of land upon a payment by the wife into a super fund.

APPLICANT: Ms S Callis

RESPONDENT: Mr Callis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11308 of 2010

DATE DELIVERED: 7 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Connell

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.Subject to paragraph 2 of this Order, a Registrar or Deputy Registrar of this Registry of the Court be and is hereby appointed pursuant to s. 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the husband and do all acts and things necessary to give validity and operation to the deed or instrument.

2.At the time of the wife’s request to the Registrar to execute documents pursuant to paragraph 1 hereof, the wife provide to the Registrar in affidavit form proof of compliance by her with paragraph 1.2.8.1 of the Order made on 28 February 2013 that is she has paid the sum of $55,000 in clear funds to B Superannuation Fund.

3.The affidavit provided to the Registrar by the wife, as contemplated by paragraph 2 of this Order, be filed with the Court and the wife send a sealed copy of that affidavit to the husband

IT IS DIRECTED:

4.That until such time as the husband files a Notice of Address for Service to the contrary, the address for service of the husband be noted in the records of the Court as G Street, Singapore, including his email address which is …

5.That the reasons for decision this day be transcribed and when settled copies be made available to the parties.

6.That the letter from the husband seeking that the matter proceed in his absence be marked Exhibit “H1” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

7.The husband pay the wife’s costs of and incidental to this application fixed in the sum of $1,968 such payment to be made in clear funds not later than 12.00 noon on 8 July 2013.

8.For the avoidance of doubt, the costs payable pursuant to this Order are not to be deducted from any moneys which the wife owes the husband or from the superannuation funds.

9.Otherwise the application in a case filed by the wife on 29 May 2013 and the response of the husband filed 4 June 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Callis & Callis (No. 2) 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 11308 of 2010

Ms S Callis

Applicant

And

Mr Callis

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. The wife makes an application to have documents, in particular a transfer of land, executed by a registrar of the Court in lieu of the husband having executed the document submitted by her. 

2. On 28 February 2013, final orders were made by me which effected a final alteration of property interests between the parties.  Those proceedings had arisen out of enforcement of earlier final property orders. 

3. The orders made by me were for the splitting of a superannuation interest, and the wife was to receive out of the parties’ self-managed fund a property at C Street, Suburb D, Queensland.  Amongst other things, the wife is to pay for any costs, including any taxation associated with the roll-out or the transfer, and any other dealing with the property (subparagraph 1.2.7).  She is to pay the fund the sum of $55,000, and resign as a director of the fund, and “thereafter indemnify and keep the fund indemnified against all rates, taxes and outgoings of all with respect to the [Suburb D] property of whatsoever nature and kind”.  Pursuant to subparagraph 1.2.8.4, “the husband indemnify the wife in respect of any liabilities the wife may have to the fund”.

RECORDED   :   NOT TRANSCRIBED

1. I have regard to the orders sought by the wife in her application in a case filed on 29 May 2013 and her affidavit in support of that application sworn on 24 May 2013.  I also have regard to the husband’s response to an application in a case filed on 4 June and his affidavit in support affirmed on 4 June 2013. 

2. Today, Ms O’Connell appears on behalf of the wife.  The wife attends court, as does her solicitor.  There is no appearance by or on behalf of the husband.  By a handwritten note dated 4 June 2013, which I mark “exhibit H1” and direct remain on the court file, the husband wrote, addressed to my associate, the following message: - and for the purpose of the transcript, I read into it the contents of exhibit H1 as follows:

   I have submitted a response to an application and an affidavit in this matter.  As the court is aware, I live in Singapore and will not be in Australia on Friday, 7 June to attend this hearing.  The documents I have filed represent a true and fair statement of my position and I would like these to stand for me.  I want this hearing to proceed in my absence.  Yours sincerely, [Mr Callis].

3. The husband was previously represented by Nicholes Family Lawyers who have now apparently ceased to act on his behalf.  In his further documents, the husband provides the following as an address for service;  G Street, Singapore, postcode, … .  I will direct that that address be noted in the records of the court as the husband’s address for service.  Significantly, there is no application made by the husband, formally or even informally, to appear by electronic means today.  

4. The super splitting order that I made on 28 February 2013 is quite specific.  There appears to be certain matters in issue between the parties which the husband submits have justified him not executing the transfer of land submitted by the solicitors for the wife.  The transfer appears in the wife’s affidavit as annexure SC1.  In general terms, it appears that the wife contends that from the $55,000 she is required to pay the superannuation fund, which is to be retained by the husband, she is entitled to deduct outstanding rates, and taxes and other apportionable outgoings in respect of the property up to the date of transfer. 

5. In her affidavit, she itemises those charges to the earlier date of approximately 1 May in the sum of $7,700.  That is, that the property is subject to those liabilities now.  She seeks that the fund pay those liabilities of the property and therefore she should pay the lesser sum of $47,300 to the fund.  The wife opposes the husband’s request for payment of legal fees and accountant’s bill in the sum of $22,970 and any other legal costs claimed by the husband. 

6. The husband, in his material, appears to assert that there ought be no adjustment in respect of liabilities associated with the property for rates, taxes or apportionable outgoings.  The husband makes the point that this is not a sale of a property in respect of which would ordinarily attract an adjustment of outgoings.  He says that he has incurred certain legal costs, which are not specified, to effect a roll out of the property in favour of the wife.  There is no evidence before me of this.  In particular, no evidence provided by the husband. 

7. It may be that the accountant’s charges of $22,970 with the implementation of the orders, and are caught by paragraph 1.2.7 of the orders, but I am not in a position to make a finding to that effect, and I don’t do.  Accordingly, if the husband or the fund seeks payments of moneys pursuant to which the wife is responsible under 1.2.7 he will be able to do so by separate proceedings.  The husband makes the point that the orders provided for the property to be rolled out into another superannuation fund.

8. It seems to me that that is the case when I look at SC1.  The transferee is, “[H] Superannuation Fund Pty Ltd ACN …”.  I am satisfied that the husband has failed, or neglected to sign the transfer, and the transfer ought be signed on behalf of the fund by a registrar of the Court.  I am also satisfied, however, that the wife must pay the moneys to the fund prior to the transfer being executed.  Therefore, I will make orders that the documents are to be executed by a registrar, but only upon the wife providing to the registrar in affidavit form proof that she has paid the $55,000 into the fund.

9. I have rejected the contention of the wife that she is entitled to deduct from the $55,000 the rates, and taxes, and apportionable outgoings.  It was submitted to me that the provision in the order which reads:

   1.2.8.3

   That the wife thereafter indemnify and keep the fund indemnified against all rates, taxes, and outgoings of all, with respect to the [Suburb D] property, of whatsoever nature or kind.

   means that the wife need only indemnify the fund against rates, taxes, and apportionable outgoings which are in incurred after the date of transfer;  that is not my reading of the paragraph as a whole.

10. I agree that the indemnity arises contemporaneously with the transfer, but the liability in respect of which the indemnity is given is not limited to liabilities which occur only after the transfer.  Indeed, that should go without saying seeing as the property would then be that of the wife.  In my view the terminology, “all rates and taxes etc of whatsoever nature and kind”, include liabilities attaching to the property to the date of transfer.

ORDERS DELIVERED

1. The applicant wife makes an application for her costs of, and associated with, the application which I have determined today.  The wife’s application in the case seeks an order that, “the husband pay all costs incurred by the wife in this application on a solicitor/client indemnity basis”.  I am, accordingly, satisfied that the husband has been accorded procedural fairness in respect of the wife’s application.  However, today the wife abandons an application for solicitor/client costs and seeks costs in accordance with the scale of costs provided by schedule 3 to the Family Law Rules.

2. The general rule in family law proceedings is that each party pay their own costs.  Section 117(2) provides that where;

   The court is of the opinion that there are circumstances justifying of doing so, the court may make an order that one party pay the costs of another party, or make other orders as the court considers just.

   In considering whether an order for costs ought to be made, or is justified, I am directed to consider the matters set out in section 117(2A).  Ms O’Connell of counsel has not addressed each subparagraph of that section, but then again it is not necessary to qualify under section consideration in order to succeed at an application for costs.

3. I have some knowledge of the financial circumstances of each of the parties to the proceedings.  I am satisfied that neither can afford to pay costs which unnecessarily incurred.  The husband has not incurred legal costs in relation to this application as he now acts for himself.  Neither party is in receipt of legal aid.  Ms O’Connell did not raise that the conduct of the parties to the proceeding in relation to pleadings in discovery, and inspection of the like, are a factor. 

4. Ms O’Connell bases her application mainly on 117(2A)(d): “whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the court.”  I am satisfied that this is the case, and this is the main factor which leads me to conclude that an order for costs is appropriate.  Ms O’Connell also sought to rely upon subsection (e): “whether any party to the proceedings has been wholly unsuccessful in the proceedings.”

5. In this case, the husband has not been wholly unsuccessful, and the wife has not been wholly successful;  the wife has obtained an order that the registrar execute the transfer of land, and associated documentation, but she has been unsuccessful in her contention that she can reduce the amount of money to be paid to the fund by the amount of rates and apportionable outgoings currently outstanding with respect to the property.

6. I was not addressed as to any offer made in the proceedings to settle these particular proceedings, and nor was I addressed on any other matters that I may consider are relevant.  I am satisfied that an order for costs ought be made against the husband, and largely because of his noncompliance with previous orders.  As to the quantum of costs, as indicated, the application of solicitor/client costs has been abandoned. 

7. Having said that, it is very frequently the case that solicitor/client costs are not far from the family law scale in any event.  I asked Ms O’Connell to prepare a memorandum of the costs claimed;  she has apparently done so.  It does appear to me that she has done so on a scale of which is much more favourable to the husband than the current scale.  For instance, counsel’s fees for a short attendance are claimed at $878, which she says is the top of the range, whereas the current scale for such fees is in excess of $1100.

8. However, I am not minded that I would necessarily have allowed the top of the scale in any event.  Likewise, the solicitor’s hourly rate is claimed at $182, whereas the current scale is in excess of $215.  I am satisfied that the number of hours claimed are appropriate;  that’s four hours to prepare the application and attend to filing and the like, and perusing the husband’s response, and for two hours at court.  In fact, the solicitor will be at court for in excess of two hours.

9. The amount of costs claimed is $1968.  It seems to me in the circumstances that that is a reasonable estimate of the costs, and I’m satisfied that they will in fact be only part of the costs which will be actually paid by the wife.  Therefore, I make an order in those terms. 

ORDERS DELIVERED

1. The wife foreshadowed an application that the amount of the costs which the husband is required to pay her be deducted from the $55,000 which she is required to pay the fund.  I would not permit that application to be made;  it was not an application of which the husband had been accorded procedural fairness, it wasn’t sought in the application that was filed, the husband and the superannuation fund are different legal entities, so the orders and liabilities will be separate.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 June 2013.

Associate: 

Date:  19 February 2013