Conrad and Conrad and Anor

[2019] FamCA 226

FAMILY COURT OF AUSTRALIA

CONRAD & CONRAD AND ANOR [2019] FamCA 226

FAMILY LAW – COSTS – Where Judgment was delivered after trial – Where an Order of the Judgment provided for the disbursement of funds to the Applicant – Where the Respondents make applications for injunctive relief restraining the Applicant and her solicitors from dispersing any of the money to her – Where the inconvenience or prejudice that the Respondents would be likely to suffer if the injunction applications are refused outweighs the inconvenience or prejudice the Applicant would be likely to suffer – Where the Applicant is restrained from disbursing a sum of the Judgment money.  

Family Law Rules 2004 (Cth)

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1

APPLICANT: Ms Conrad

FIRST RESPONDENT: Mr Conrad

SECOND RESPONDENT: Ms Stocks

INTERVENER: P Lawyers

FILE NUMBER: BRC 5264 of 2013

DATE DELIVERED: 15 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITOR FOR THE APPLICANT: Simonidis Steel Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Hackett

COUNSEL FOR THE SECOND RESPONDENT: Mr Hackett

SOLICITOR FOR THE SECOND RESPONDENT: Holloway Jenkins

THE INTERVENER: No Appearance

Orders

1. That upon the undertaking as to damages proffered in the usual form by the Respondents at the hearing of their applications for this interim injunctive relief, the Applicant Wife and her servants or agents are restrained from dispersing the monies the wife receives pursuant to the Judgment delivered on 1 March 2019:

   (i)As to the sum of $100,000, until assessment and payment of the costs order made on 31 May 2018; and

   (ii)As to the sum of a further $400,000, until determination by this Court of the respective costs applications of the parties that have been filed in the proceedings that were concluded with the Judgment delivered on 1 March 2019.

2. That the said amounts, totalling $500,000, when received by the wife shall be held for her as required pursuant to (1) hereof, on trust by her solicitors, Simonidis Steel Lawyers, in an interest bearing account. 

3. The parties’ costs of and incidental to these applications are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conrad & Conrad and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5264 of 2013

Ms Conrad

Applicant

And

Mr Conrad

First Respondent

And

Ms Stocks

Second Respondent

And

P Lawyers

Intervener

REASONS FOR JUDGMENT

1. On 1 March this year, I made property adjustment Orders and published my reasons for making those Orders in these long running proceedings. I ordered that the First Respondent husband pay the Applicant Wife within 45 days a sum of $780,000 by way of property adjustment and such sum as will discharge all arrears of periodic spousal maintenance owed pursuant to an interim Order I made on 5 June 2015.

2. Payment of the sum had been arranged for today, Monday, 15 April 2019, with a settlement scheduled to take place at 2.30 pm. Apparently, the arrears of periodic spousal maintenance that would have to be paid on the settlement day is calculated at around $63,000. My Orders also provided for the money to be paid by payment of the sum of the money the wife owes to a firm of solicitors who previously acted for her in the first instance and with the balance to be paid to the wife’s current solicitors. Apparently, the amount owed to the first firm of solicitors would be $80,309.18 as at the settlement. That would leave $762,691 to be paid to the wife’s current solicitors.

3. I am now asked to determine applications made by the husband and his sister, the Second Respondent in the proceedings, for injunctive relief restraining the wife and her solicitors from dispersing any of the money that is paid to the wife through her solicitors this afternoon. The wife opposes such injunctive relief being ordered against her.

Some background

1. Last year, on 31 May, I made costs Orders against the wife in favour of the husband and his sister. Those Orders provide that the wife pay certain costs on a party and party basis as agreed or assessed according to the Scale of Costs set out in the Family Law Rules 2004 (Cth) (“Rules”), but that they need not be paid until the property adjustment proceedings were concluded. Those costs have not been agreed or assessed yet. For the Respondents it is submitted that amount will ultimately be around $100,000. They ask the Court to restrain the wife from dispersing that much of the money she receives until that matter is finalised.

2. Further, when I delivered my final Judgment earlier this year, I made directions in respect of any applications for costs that were to be made by the parties consequent upon the judgment. All three parties have now filed applications for costs – the wife against the husband and the husband and his sister against the wife. Written submissions were filed in the last few days and those applications will now have to be determined. The Respondents seek indemnity costs against the wife. On that basis, for the Respondents, it is submitted that the wife should be retrained from disbursing a further $400,000 pending the determination of those costs applications, there being evidence that they have spent at least that much in the proceedings.

The principles

1. Mr Hackett of counsel for both Respondents submits, correctly, in my judgment, that in determining an application for interim injunctive relief, the Court turns its mind to two main inquiries. Those are:

   … whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the end of the trial of the action the plaintiff will be held entitled to relief… [and] whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted…^[[1]]

   [1]Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622-623; [1968] HCA 1.

The submissions

1. Mr Hackett submitted that the Respondents’ affidavits establish that there is an existing set-off against the judgment in the case of the husband and existing liability owed to the Second Respondent by the wife yet to be assessed. Additionally, each of the Respondents have costs applications against the wife yet to be determined in which costs in the hundreds of thousands of dollars are sought.

2. Mr Hackett went on to submit that the wife is presently impecunious, and that the evidence discloses, beyond doubt, that she owes her current solicitors in the order of $500,000 in costs and outlays, her former solicitors (two firms), almost $90,000, a firm of accountants $21,000 and that she owes other amounts to various family members. His submission went on to argue that unless the wife is restrained from disbursing at least part of the money she is to receive at the settlement, the ability of the Respondents to receive any funds pursuant to the existing costs order or any funds if they are successful in obtaining any further costs orders is likely to be defeated. 

3. Mr Hackett’s submission was, effectively, that restraining the wife from disbursing $500,000 will still permit her access to a couple of hundred thousand dollars that she can use as may be determined by her in conjunction with her solicitors, whilst at the same time providing some comfort to the Respondents that the costs orders they already have the benefit of will bear fruit along with any they are successful in obtaining in the determination of the outstanding costs applications.

4. For the wife, Mr Bunning of counsel submitted that the wife is entitled to the fruits of her judgment and that she should not be restrained from disbursing any of it when she receives it. He reminded the Court that for the last few years, whilst the husband was obliged, by an Order, to pay interim periodic spousal maintenance to her, he did not, and thus the arrears of around $63,000 referred to earlier has accrued, yet at the same time the wife has had to rely on social security and the generosity of her family to live whilst she has been suffering from very poor health.

5. In the alternative, he submitted that if the Court is not minded to accept that the wife should have unrestrained access to all of the money she is to be paid at settlement, the amount she should be restrained from disbursing should be limited to an amount of around $363,000. In support of that submission, Mr Bunning tendered into evidence copies of the r 19.04 Costs Notices that were handed to the Court by the Respondents at the beginning of the trial in January this year.

6. Mr Bunning pointed to the Second Respondent’s costs notice dated 17 January 2019, in which her solicitors told her that she had incurred actual costs, including fees paid to counsel and unbilled solicitors’ time since their last invoice, of $215,000 and that the estimate of her further fees for the trial, including counsel’s fees, was another $85,000 – a total of $300,000. He pointed to the husband’s costs notice in which he said that he had paid the sum of $63,157 to his previous solicitors.  He submitted that adding the amount the husband said he had paid to the amount set out in the Second Respondent’s solicitors’ costs notice, resulted in the amount of $363,000. He submitted that given the disclosure of those costs notices their costs could not be higher than that total.

7. Noting as I did during oral argument, that the husband’s costs notice already clearly left out information, required by the Rules (see r 19.04(5)) to be included, as to the source of the money used to pay the fees that had been paid, and the fact that Mr Hackett had informed the Court that he was acting for the husband on a direct briefing basis as well as acting for the Second Respondent on the instructions of her solicitors, I do not discount the possibility that the husband personally incurred some liability to Mr Hackett as well that was not included in the costs notice. Additionally, as Mr Hackett submitted in reply, there is a line of common law authority for the proposition that a litigant who is a solicitor who acts for himself without representation is entitled to the benefit, where appropriate, of a costs Order that includes amounts for the time he has expended in representing himself. As such, the husband’s costs, if he is successful in obtaining a costs order on his outstanding application, might ultimately be substantially higher than the $63,000 that he included in his costs notice.

My determination

1. I am satisfied that there is some prospect, given that there remain outstanding costs applications, that the Respondents will “be held entitled to relief” in the form of further costs Orders. I am also satisfied that at this particular point in time the inconvenience or prejudice that the Respondents would be likely to suffer if the injunction applications are refused (namely that there will likely be little, if anything, left of the money paid to the wife pursuant to the judgment) outweighs the prejudice or inconvenience to the wife if the injunction is granted.

2. I am also satisfied that the balance of convenience favours restraining the disbursement of $500,000 as sought by the Respondents. The wife will still receive a couple of hundred thousand dollars at the settlement that she can deal with unrestrained and if the Respondents are ultimately unsuccessful in their costs applications, the wife will stand to receive the balance of the funds unaffected by other than the determination of the existing costs orders in the Respondents’ favour. Indeed, if she is successful in her own costs application, she may even stand to receive more money from the husband in due course.

3. In the meantime, I accept the merit in the proposition that the sum of $500,000 that is to subject to the interim restraint against disbursement should be invested in an interest bearing deposit. I will include a requirement for that in the Order I will make and I make the Orders set out at the commencement of these written reasons. I make it on the usual undertaking as to damages proffered by the Respondents through their counsel at the commencement of the hearing of the applications for interim injunctive relief.

4. I reserve all parties’ costs of the applications to the determination of the substantive costs applications, observing that it was the course that, at the end of the hearing, all parties accepted was appropriate.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 April 2019.

Associate: 

Date:  15 April 2019