Cuperus and Marshall and Anor (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUPERUS & MARSHALL and ANOR (No.2) [2011] FMCAfam 338

FAMILY LAW – Property – substantial application dismissed – costs against solicitor.

Family Law Act 1975, ss.44(4), 117, 117(A)
Federal Magistrates Court Rules 2001, rr.4.05, 21.07

Z (A Solicitor) & Limousin [2010] FamCAFC 59
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re F: Litigants in person guidelines (2001) 27 Fam LR 517; FLC 93-072

Applicant: MS CUPERUS

First Respondent: MR MARSHALL

Second Respondent: [COMPANY X]

File Number: BRC 4947 of 2008

Judgment of: Coates FM

Hearing date: 11 April 2011

Date of Last Submission: 11 April 2011

Delivered at: Brisbane

Delivered on: 18 April 2011

REPRESENTATION

Solicitors for the Applicant: John-Paul Mould, Solicitors

Solicitors for the Respondents: Barry & Nilsson, Solicitors

ORDERS

1. That solicitor Mr John-Paul Mould pay the husband’s costs of and incidental to these proceedings fixed in the sum of $2,480.00 within

   
   

   28 days.

IT IS NOTED that publication of this judgment under the pseudonym Cuperus & Marshall and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 4947 of 2008

MS CUPERUS

Applicant

And

MR MARSHALL

First Respondent

[COMPANY X]

Second Respondent

REASONS FOR JUDGMENT

1. I delivered judgment in this matter on Monday 11 April 2011, dismissing the wife’s application for leave to proceed out of time for an alteration of property interests.

2. I also dismissed a concurrent application to restrain the husband’s alleged company, [Company X], from pursuing an action against the wife allegedly relating to marital property which was filed in the Supreme Court of Queensland.

3. The husband never filed a response to the application, but did file a Notice of Address for Service, on the basis that the wife had not met the evidential requirements to show she had a case.

4. In dismissing the wife’s leave to proceed application, I held that no evidence of hardship was produced, a crucial element required for leave to be given.

5. In dismissing the restraining order application, I held that no evidence that the matter was within the jurisdiction of the Family Law Act 1975 (the Act) was put before me.

6. I anticipated that a costs application was inevitable given the manner in which the combined matters were run.

7. I did not anticipate that the costs application, made orally, would be in the alternative seeking orders that the wife’s solicitor indemnify the wife for costs or that a costs order be made against him.

8. In seeking orders against the solicitor, Mr Cooper for the husband relied on r.21.07 of the Federal Magistrates Court Rules 2001 which states:

   “21.07 Order for costs against lawyer

   (1)    The Court or Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:

   i)to be incurred by a party or another person; or

   ii)to be thrown away;

   because of undue delay, negligence, improper conduct or other misconduct or default.”