Cirillo & Cirillo (No 5)
[2022] FedCFamC1F 246
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cirillo & Cirillo (No 5) [2022] FedCFamC1F 246
File number(s): SYC 4192 of 2020 Judgment of: REES J Date of judgment: 19 April 2022 Catchwords: FAMILY LAW – COSTS – Costs ordered in favour of the husband on a party and party basis. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Prantage & Prantage (2013) FLC 93-544 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 19 April 2022 Place: Sydney Solicitor for the Applicants: Boyce Family Law & Mediation Counsel for the Respondent: Mr Cheshire SC Solicitor for the Respondent: MDW Law ORDERS
SYC 4192 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CIRILLO
First Applicant
B PTY LTD
Second Applicant
AND: MS CIRILLO
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
19 APRIL 2022
THE COURT ORDERS:
1.That on or before 19 May 2022, the wife pay the husband’s costs of the Application in a Proceeding filed 13 April 2022 in the sum of $2,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cirillo & Cirillo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Property settlement proceedings between Mr Cirillo (“the husband”) and Ms Cirillo (“the wife”) are listed for hearing before Aldridge J on 9 May 2022 for five days. In preparation for trial, directions were made for the valuation of hotel assets in South Australia.
On 22 March 2022, the husband and the wife agreed on a single expert valuer, Mr AH, to value the hotels.
On 5 April 2022, Mr AH told the parties that he could not prepare the valuations in time for the hearing.
On 7 April 2022, the solicitors for the husband forwarded to the solicitors for the wife a letter of instruction to a different valuer, Mr AJ.
There was no response.
On 11 April 2022, the husband’s solicitor wrote to the wife’s solicitor seeking her response. Further letters were sent on 12 April 2022. At the time of filing the present application, there had been no response from the wife, other than that her solicitors were seeking her instructions.
Importantly, there has been no indication from the wife that Mr AJ is not suitably qualified or any proposal by her of an alternate expert.
The husband now seeks an order that the wife sign the joint letter of instructions or, if she does not do so, that a registrar of the Court sign on her behalf.
The husband’s application and supporting affidavit was sealed and served on the wife on 14 April 2022.
When the matter was listed before me on 19 April 2022, those representing the wife indicated that she consented to the substantive application for the appointment of the valuer.
The husband sought costs of the application on an indemnity basis.
That application falls to be determined according to s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
Although the value of the property of the parties’ has not yet been determined, they have each contended, in other proceedings, for an asset pool in excess of $90 million.
The husband relies upon the wife’s conduct in delaying her consent to the instruction of the valuer. She was advised on 7 April 2022 that an alternate valuer was proposed by the husband and provided with a letter of instruction to the valuer which had been signed by the husband’s solicitor.
On 11 April 2022, having received no response to the letter of 7 April 2022, the husband’s solicitors wrote again advising that if not response was received by noon an application would be filed. At 11.43 am on 11 April 2022, the wife’s solicitors responded saying that they were “taking instructions”. At 4.53 pm on 11 April 2022, the wife’s solicitors advised that they “anticipate being able to obtain final instructions from our client on this issue by 12.00pm tomorrow”.
On 12 April 2022, the wife’s solicitors wrote at 11.42 am saying they “anticipate being able to confirm our client’s instructions by close of business today”. The husband’s solicitors responded advising that if no signed letter of instructions was received by 4.00 pm then an application would be filed.
The wife’s solicitors replied with a lengthy letter pointing out that it was the husband’s fault that the former valuer had withdrawn and that “[w]e will seek to obtain our client’s instructions as to the proposed appointment… as a matter of priority and will revert to you as soon as instructions are to hand”.
The husband’s Application in a Proceeding was filed on 13 April 2022 and sealed and served on 14 April 2022.
The wife filed no response to the application nor any evidence.
At the commencement of the hearing on 19 April 2022, 12 days after being provided with the letter of instruction, the wife’s lawyers consented to the orders sought by the husband.
Had she done so sooner, and particularly within the time frame that her own solicitors envisaged, that is by noon on 12 April 2022, there would have been no necessity to file the application and supporting evidence and no costs incurred.
I have not been directed to any evidence of an offer of compromise.
The wife should pay the husband’s costs thrown away as a result of her conduct. The issue now to be determined is whether those costs should be paid on an indemnity basis.
The principles upon which that determination is to be made are well known and clearly set out in the decision of the Full Court in Prantage & Prantage (2013) FLC 93-544. It is not necessary to repeat them here. I am not persuaded that the wife’s conduct here constitutes “some special or unusual feature in the case to justify the Court in departing from the ordinary practice”.
Costs will be orders on a party and party basis and assessed at $2,500.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 19 April 2022
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