Cull & Lenz (No. 6)

[2021] FamCA 181

FAMILY COURT OF AUSTRALIA

Cull & Lenz (No. 6) [2021] FamCA 181   

File number(s):	SYC 6598 of 2017
Judgment of:	REES J
Date of judgment:	7 April 2021
Catchwords:	FAMILY LAW – COSTS
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Number of paragraphs:	17
Date of last submissions:	26 March 2021
In Chambers:	7 April 2021
Place:	Sydney
Solicitor for the Applicant:	Auyeung Hencent & Day Lawyers
First Respondent:	Self-Represented
Solicitor for the Second Respondent:	Nolan Lawyers

ORDERS

SYC 6598 of 2017

BETWEEN:

MR DEA

Applicant

AND:

MS CULL

First Respondent

MR LENZ

Second Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	7 APRIL 2021

THE COURT ORDERS:

1.That, from the proceeds of sale of the property at EE Street, Suburb FF, the Trustee for sale pay, in addition to the amounts authorised in the Orders made 19 March 2021, the sum of $12,000 to Mr Dea being the costs of the application determined on 19 March 2021.

2.That the wife pay to the husband the sum of $5,000, being costs of the application determined 19 March 2021, such sum to be paid from any funds to which the wife is entitled in the substantive proceedings. 

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. On 19 March 2021, I delivered reasons and made orders to facilitate the settlement of the sale of a property at Suburb FF, owned by the wife in the substantive proceedings, to Mr Dea, contracts for sale having been exchanged on 4 June 2020.

2. I directed that any submissions or evidence in relation to the costs of those proceedings were to be filed within seven days, that is, by 26 March 2021.

3. Both the husband and Mr Dea have filed affidavits and written submissions. No material has been filed by the wife.

4. Both applications for costs are governed by the provisions of s117(2A) of the Family Law Act 1975 (Cth), which are reproduced below:

   (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.

5. I propose to deal with the applications separately.

   APPLICATION OF MR DEA

6. The application brought by Mr Dea arose in the circumstances fully set out in the reasons for judgment delivered on 19 March 2021. For present purposes, it is sufficient to record that the wife, having exchanged contracts to sell the Suburb FF property to Mr Dea, failed or refused to settle the sale. The Court appointed a Trustee for sale to complete the contract.

7. There is no current evidence of the financial position of either the wife or Mr Dea. 

8. Neither party is in receipt of legal aid.

9. The proceedings were necessitated by the wife’s failure to take proper steps to complete the contract for sale.  Mr Dea is a third party seeking to enforce a contractual right.

10. The application was necessary because of the wife’s conduct.

11. The wife should pay the costs of Mr Dea.

12. Those costs are estimated to be $12,000. There is no objection by the wife to the quantum of costs. The amount appears reasonable.

13. I propose to order that the costs be paid from the proceeds of the sale. The alternative is to order that the costs be paid from any funds to which the wife is judged entitled in the substantive proceedings. This would entail a delay which is not justified by the amount involved.

    THE HUSBAND’S APPLICATION FOR COSTS

14. The relative financial positions of the husband and the wife are in issue and will be determined in the substantive hearing.

15. The proceedings were necessitated by the wife’s conduct and the husband should not have been required to expend money for representation.

16. The wife should pay his costs.

17. There is no assessment of the husband’s costs at scale. I assess those costs at $5,000, the amount to be paid from any funds otherwise due to the wife by the substantive orders.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       7 April 2021