CHRISTOS & CHRISTOS (NO 2)

[2014] FamCA 1154

FAMILY COURT OF AUSTRALIA

CHRISTOS & CHRISTOS (NO 2) [2014] FamCA 1154

FAMILY LAW – COSTS – ENFORCEMENT PROCEEDINGS – Where the husband seeks orders that the wife pay his costs of enforcement proceedings on an indemnity basis – Where the wife had failed to comply with final property orders requiring her to vacate the former matrimonial home – Where the wife complained of various acts of her former solicitor to explain her non-compliance – Where it was found that this was an issue to be resolved between the wife and her previous solicitor and not visited upon the husband – Where it was found that the wife should pay the husband’s costs on a party and party basis as assessed by the Court.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth).

Prantage & Prantage (2013) 49 Fam LR 197

APPLICANT: Mr Christos

RESPONDENT: Ms Christos

FILE NUMBER: SYC 4025 of 2012

DATE DELIVERED: 18 December 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 3 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Paltos Milevski Family Lawyers

RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT

1. That by no later than 5pm on 4 December 2014 the wife attend at the office of the husband’s legal representatives and hand over possession of:

   1.1all keys to locks on external doors and windows of the former matrimonial home ;

   1.2all keys to internal locks in the former matrimonial home;

   1.3the two garage door remote controls for the former matrimonial home.

2. That the amount payable by the husband under Order 24 of the Orders of the Honourable Justice Rees of 27 July 2014 as amended by the Orders of 31 October 2014 and 3 December 2014 and takes into account the following deductions from the amount of $769,082:

50 per cent of Mr D’s fees (inclusive of GST). This amount to be retained by the husband.	$8,250
50 per cent of Dr L’s report fees (inclusive of GST). This amount to be retained by the husband.	$4,400
50 per cent of Dr L’s attendance at court (inclusive of GST). This amount to be retained by the husband.	$412.50
Amount paid to real estate agent on 31 October 2014. This amount to be paid by the husband.	$5,200
Amount advanced at the wife’s request to assist with moving costs and paid to the wife on 7 November 2014. This amount to be retained by the husband.	$10,000
Amount to be held by the husband pending determination of Mr U application for payment of his costs (Order 13 of the Orders of 31 October 2014)	$266,445
Amount to be paid directly by the husband to Legal Aid NSW on behalf of the wife for her outstanding costs payable to the ICL	$8,074
Amount to be paid directly by the husband to LAC Lawyers Pty Limited on behalf of the wife	$115,542.68

IT IS ORDERED

1. That the wife pay the husband’s costs assessed at $7,000 in relation to the enforcement proceedings, such sum to be deducted from the amount to be paid to the wife pursuant to the Orders of 27 July 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Christos and Christos (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 SYDNEY

FILE NUMBER: SYC  4025 of 2014

Mr Christos

Applicant

And

Ms Christos

Respondent

REASONS FOR JUDGMENT

1. On 27 July 2014 judgment was handed down in proceedings between the husband, Mr Christos (“the husband”) and the wife Ms Christos (“the wife”). Relevantly the orders made the following provision:

   24. That at the expiration of two months from the date of these Orders the husband pay to the wife or as she may direct the sum of $769,082 less 50 per cent of the costs of the single experts’ fees paid by the husband.

   …

   26. That simultaneously with compliance by the husband with Order 24 above, the wife shall:

   26.1 vacate the former matrimonial home leaving the home in good condition and repair; and

   26.2 leave in the former matrimonial home the items listed in schedule “A” hereto which shall be retained by the husband and which the wife shall leave in good condition and repair.

2. The husband at all relevant times is the registered proprietor of the former matrimonial home.

3. On 18 August 2014 the wife filed a Notice of Appeal in relation to the judgment. She did not seek a stay of the orders. A copy of the Notice of Appeal was served upon the solicitors for the husband on 29 August 2014. Ultimately, the wife did not proceed with the appeal.

4. On 12 September 2014, within the period of time anticipated by the orders, the solicitors for the husband wrote to the solicitors for the wife in the following terms.

   In compliance with Order 26 would you please propose a convenient time on 15 September 2014 for our client to attend at the former matrimonial home (“FMH”) to inspect the home and the items listed in Annexure A to the orders for damage. (The letter proposed that the parties’ respective solicitors be present).

   In compliance with Order 24 of the Orders it is suggested that settlement take place at the FMH at 11am on 22 September 2014…

   In compliance with Order 24, our client will provide at settlement, upon your client vacating the FMH in good condition and repair and leaving the items in annexure A in the home in good condition and repair, the amount of $752,599.20 being the amount of $769,082 less the following deductions:

   1.50 per cent of Mr D’s fees (inclusive of GST) $8,250.00

   2.50 per cent of Dr L’s report fees (inclusive of GST) $4,400.00

   3.50 per cent of Dr L’s attendance at court (inclusive of GST) $412.50

   4.Less Federal Circuit Court costs order and interest to 22.9.14 $3,420.30

   Total deductions $16,482.80

   $769,082 - $16,482.80 = $752,599.20

5. In that letter the solicitors for the husband also canvassed the issue of security for costs of the appeal which had been lodged by the wife in relation to the orders.

6. On 22 September 2014 a further letter was written by the solicitors for the husband to the solicitors for the wife noting that the wife had not permitted inspection of the home and had not indicated when possession would be available. The letter pointed out that the husband remained ready, willing and able to comply with the orders and pay the sum referred to in the letter of 12 September 2014 to the wife.

7. On 24 September 2014 the husband filed an Application in a Case seeking orders by way of enforcement in the following terms:

   2.The wife forthwith provide immediate access to the husband for the purpose of inspecting the premises situate and known as (“the FMH”) to ensure that:

   2.1      the FMH is in good condition and repair;

   2.2      the items listed in schedule A of the Orders of 21 July 2014 are left by the wife in the FMH in good condition and repair.

   3.Upon compliance by the wife with Order 2 hereof and simultaneously with compliance by the husband with Order 5 hereof, the wife fortwith vacate the FMH;

   3.1Leaving the FMH in good condition and repair; and

   3.2      Leaving the items listed in Schedule A of the Orders of 21 July 2014 in the FMH in good condition and repair.

   4.In the event the wife fails within 48 hours of the making of these Orders to comply with either Order 2 or Order 2 hereof, then pursuant to Rule 20.54(2) the Marshal of the Court, all officers and the Australian federal Police and all state and territory police officers are requested to enter the property situate and known as (the former matrimonial home) and to give possession of the said property to the husband.

   5.Upon the husband obtaining possession of the FMH pursuant to either Order 3 or Order 4 hereof, the Husband pay to the Wife or as she shall direct the sum of $752,599.20.

   6.The wife pay the husband’s costs of and incidental to this Application on an indemnity basis.

8. The husband’s application was listed before the Court on 9 October 2014.

9. On that day Mr T, who was the solicitor on record for the wife, appeared and advised the Court that he appeared as a matter of courtesy because he was unable to obtain instructions from the wife. The matter was stood over until 31 October 2014 and the husband’s costs in relation to the appearance were reserved. The Court noted that it was intended to deal with the husband’s application for possession of the former matrimonial home on 31 October 2014 and that the application would be dealt with in the absence of the wife if she did not attend either personally or by a legal representative.

10. On 31 October 2014 the wife appeared in person. After some discussion the wife indicated to the Court that she would use her best endeavours to vacate the former matrimonial home, leaving it in good order, on or before 21 November 2014. Orders were also made on that day allowing Mr T leave to intervene in the proceedings and for the sum of $266,445 to be held by the husband on behalf of the wife and Mr T until such time as the issue of the costs payable to Mr T had been determined. The matter was stood over to 3 December 2014 for further mention and for the hearing of this application.

11. On 31 October and 3 November 2014 the wife, then representing herself, wrote letters to the solicitors for the husband indicating that she would not vacate the former matrimonial home until such time as the husband paid her an advance payment of $10,000.

12. On 4 November 2014, the solicitor for the husband wrote to the wife, pointing out her obligations pursuant to the orders and agreeing to make an advanced payment of $10,000 (in addition to a payment of $5,200 made to assist the wife in paying a bond and rent in advance) provided that settlement took place on 21 November 2014 following a final inspection.

13. On 4 November 2014 an email was sent by the wife to the solicitors for the husband saying:

    i agree with the above payments and the dates your client will be attending on the 14th November, 2014. I cannot advise you on the 21st November, 2014, the time 11.00am that i wii be out. There was not a set time to leave on the 21st November, 2014 and its up to the tradesmen to see when they will finish. the only thing i can do is advise you 1 hour before we leave for your client to come and bring me the check of $452,557.58. (Errors as in original.)

14. On 5 November 2014 the solicitors for the husband wrote again to the wife indicating that she had been expected to vacate the former matrimonial home on 22 September 2014.

15. On 5 November 2014, the wife filed an affidavit setting out her evidence in relation to the husband’s application for costs, which application she opposed.

16. In her affidavit the wife sets out the following matters:

    (a)The husband’s application which was returnable on 9 October 2014 was not brought to her attention by her solicitors and she only became aware of the application when her solicitors filed a Notice of Ceasing to Act which advised her that the matter was listed before the Court on 31 October 2014.

    (b)Discussions had taken place between the wife and her former solicitor in relation to the Notice of Appeal and the difficulties of finding Counsel who would accept a brief in the appeal without payment.

17. The wife in her affidavit complained of various acts of her former solicitor who she considered not to have assisted her. At paragraph 5 of the annexure to her affidavit the wife said:

    I don’t feel, that this any way is my fault and if anything the payment should be on my previous lawyer, for going to court and saying he had no instructions from me and wasting the courts time and (the husband’s) lawyer and barrister time and costs in this matter and expecting me to pay for this, I was not told or served papers by (the husband) from [Mr U]., I have asked him to email me the documents.

18. There then ensued correspondence between the wife and the solicitor for the husband about work which needed to be done to rectify damage alleged to have been caused to the former matrimonial home. (Ultimately that matter was resolved and the husband did not pursue an application for the wife to indemnify him in relation to the cost of rectification).

19. On 6 November 2014, the wife sent an email to the solicitors for the husband saying:

    On the 3rd December, 2014, my father is going into hospital for an cataract operation, he has been on a waiting list for a long time and was advised recently about this day. I am going with him so after operation I can take him home, my sister will be with my mother, for she cannot be on her own. I kindly ask to reschedule to another day. please advise me as soon as possible on this matter.

20. On 7 November 2014, the wife sent an email to the solicitors for the husband asking when the amount of $10,000 would be paid to her.

21. On 7 November 2014, the husband’s solicitors replied indicating that the husband was under no obligation to pay the sum of $10,000 and confirming that the wife was under an obligation to vacate the former matrimonial home leaving it in good condition and repair. Also on 7 November 2014, the solicitors for the husband advised the wife that the amount of $10,000 would be electronically transferred to her account that evening.

22. On 13 November 2014, the solicitors for the husband wrote to the wife asking for her confirmation that she had received the sum of $10,000 and confirming that the husband would attend at the former matrimonial home on Friday 14 November 2014 to inspect the property and that settlement would take place on 21 November 2014.

23. When the matter came before the Court on 3 December 2014, the wife again represented herself. The issue of rectification of any damage to the property was resolved by agreement. The wife agreed to make all keys and remote controls available to the husband and agreed with the schedule of payments proposed by the husband with the exception only of the issue of costs of the enforcement proceedings.

SECTION 117(2A)

1. The application falls to be determined pursuant to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) the provisions of which are set out below:

   117(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

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

   (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;

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

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

   (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; and

   (g) such other matters as the court considers relevant.

2. The orders for property settlement which were made on 27 July 2014 provide for the payment of substantial funds to the wife. Each party has the capacity to make a contribution towards costs in these proceedings.

3. Neither of the parties is in receipt of legal aid.

4. The proceedings now before the Court were necessitated by the failure of the wife to comply with her obligations pursuant to the orders of 27 July 2014. Whatever may have been the state of her communication with her previous solicitor, she was aware from the orders and the judgment that the husband was required to pay her the amount referred to in the judgment on or before 27 September 2014, and that she was required to vacate the former matrimonial home.

5. Certainly by 31 October 2014 the wife was aware that the husband was seeking to enforce those orders and seeking a warrant for possession of the former matrimonial home. There is no doubt that the proceedings on 9 October 2014, 31 October 2014 and 3 December 2014 were necessitated by the wife’s failure to comply with the orders.

6. Whether or not there was some responsibility on the part of the wife’s former solicitor to have facilitated her compliance with the orders is a matter between the wife and her former solicitor and cannot be visited upon the husband.

7. The husband has been required to expend money and pay legal fees in order to secure compliance with the orders. This ought not to have been necessary. In those circumstances it is appropriate that the wife should pay the husband’s costs.

INDEMNITY COSTS

1. The husband seeks an order that the costs be assessed as indemnity costs.

2. The circumstances in which indemnity costs will be orders were discussed in the judgement of the Full Court in Prantage & Prantage (2013) 49 Fam LR 197. It is not necessary to set out here the judgement of the Full Court except to note that the normal rule that each party should pay his or her own costs should not be departed from unless some “special or unusual feature arises” (para 83).

3. Enforcement proceedings, per se, are neither special nor unusual in the day to day workings of the Court. This is particularly so when parties are unrepresented.

4. In the circumstances I am of the view that the criteria for the imposition of indemnity costs have not been met and the wife should pay costs on a party and party basis.

THE ASSESSMENT OF COSTS

1. The solicitor for the husband has provided an estimate for costs up to and including 31 October 2014 of $18,354.18.

2. A further estimate has been provided for work between 1 November 2014 and 3 December 2014 but Counsel for the husband indicated that in the event that the issue of costs was dealt with on 3 December 2014 then no further costs would be sought past 31 October 2014.

3. The estimate of costs is provided at a rate specified in a costs agreement between the husband and his solicitors. The hourly rate charged by the solicitors to instruct Counsel is $480 per hour but it is not clear what hourly rate has been applied in relation to other attendances. Similarly Counsel’s fees have been charged in accordance with the agreement between Counsel and the husband.

4. None of these charges are at the scale rate provided in the Family Law Rules 2004 (Cth).

5. In order that that matter could be disposed of without the necessity for taxation, Counsel for the husband conceded that in the event that I was not satisfied that it was appropriate to impose an indemnity costs order then I could fix, at large, the quantum of costs to be paid by the wife.

6. In the circumstances where I am satisfied that it is only because of the wife’s conduct that the husband was obliged to bring these proceedings. I am of the view that she should make a contribution towards his costs and I fix that amount at $7,000.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 December 2014.

Associate:

Date:  18 December 2014