Deleuze and Deleuze

[2016] FamCA 601

FAMILY COURT OF AUSTRALIA

DELEUZE & DELEUZE [2016] FamCA 601

FAMILY LAW – COSTS – Interim application for enforcement – where consideration of general principles – where application for costs dismissed.

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Deleuze

RESPONDENT: Ms Deleuze

FILE NUMBER: SYC 2528 of 2014

DATE DELIVERED: 29 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 29 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Kazi Portolesi Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gardiner

SOLICITOR FOR THE RESPONDENT: ClarkeKann Lawyers

Orders

1. The Husband’s application for costs of and incidental to his Application in a Case filed on 23 June 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deleuze & Deleuze 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 PARRAMATTA

FILE NUMBER: SYC 2528 of 2014

Mr Deleuze

Applicant

And

Ms Deleuze

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application for costs by the applicant husband in relation to his application in a case filed on 23 June 2016. 

2. That application in a case sought orders that would provide for him to be appointed trustee for sale of the former matrimonial home property situated at B Street, Suburb C, and for an interim distribution of the net proceeds of sale through the property holding company to each of the parties and the balance to be placed on interest bearing deposit pending final resolution of property proceedings.

3. The matter has had some history, the proceedings having been commenced in October 2015. But, more particularly, orders were made by consent by the Registrar on 24 May 2016 presumably as a consequence of difficulties in relation to the parties agreeing as to the process for sale of the property that provided that the husband shall, within 14 days of the date of those orders:

   a)Terminate the agency agreement of the previously appointed agent, D Real Estate;

   b)Provide to the wife a copy of the notice of termination; and

   c)Within seven days of 24 May 2016 appoint, pursuant to an exclusive agency agreement, E real estate agents for the marketing and sale of the subject property.

4. Regrettably, the orders made on 24 May 2016 were somewhat inelegant in that they were not in any respect self-operating because they left to the parties the joint obligation to make decisions affecting the sale of the property, including but not limited to the marketing of the property, including methods, form and costs, the acceptance or rejection of any offers received and the terms of any sale to any prospective purchasers and any other decision that would affect the method, form, terms or sale price of the property.

5. Clearly there were innumerable issues that were going to arise between the parties in relation to the listing of the property particularly, in the wife’s mind, the fact that there was no final occupation certificate available in relation to the newly constructed duplex property on the site. Although it is conceded today that such issue is little hindrance in terms of the sale proposed by the husband.

6. The application of the husband came before the Court on short notice with leave on 27 June 2016 and not unexpectedly the wife had not had the opportunity of filing any response or affidavit material in relation to that application.

7. The application was adjourned to today’s date at 2.15 pm and the wife was ordered to file a response and her affidavit relied upon by the close of business yesterday, 28 June 2016. 

8. The parties were granted leave to provide a copy of the orders made on 27 June 2016 to the mortgagee bank, the National Australia Bank, and to the bank’s solicitors by reason of sabre-rattling by the bank and the bank’s solicitors threatening court action under the mortgage seeking vacant possession of the property and facilitating a mortgagee sale. 

9. It was noted on 27 June 2016 that it was the expectation of the Court that a valuer appointed by the wife and the valuer sought to be relied upon by the husband should, if at all possible, meet in the interim and endeavour to reach some agreement as to the proposed sale price of the subject property. 

10. The wife has made some inquiries, it appears, and is satisfied that the proposed sale by the husband of the property at a price of $2.4 million is appropriately within the range and having been in a position to make that concession did not file any formal documents in response to the husband’s application, but filed a short affidavit with leave by her solicitor setting out the background circumstances leading to that concession.

11. The orders made today by consent provide for the husband, on or before 30 June 2016, to cause an exchange of contracts for the sale of the property.  That contract will be for a price of $2.4 million to F Pty Ltd as trustee for G Consortium, being the purchaser entities. The orders that then flow for distribution of the net proceeds of sale are all but identical to the orders made by consent on 24 May 2015. 

12. It’s the husband’s contention in relation to his application for costs that the wife has been wholly unsuccessful in her opposition to the orders sought by the husband and in such circumstances he having brought the application then the general rule that each party should pay their own costs, as provided for in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), be displaced by reason of an overall consideration of the factors in s 117(2A) of the Act.

13. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

14. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

15. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section as follows:

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

    b)Whether any party has legal aid and the terms of any grant of aid;

    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 answers, 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.

16. The husband for his part, as has been said, has failed to comply with the obligations placed upon him by orders made on 24 May 2016 and, indeed, has done not one jot in an endeavour to comply with his obligations under the orders.  Although it must be said that his excuse for not doing so appears to be that he has discovered a purchaser at a price that is reasonable to the market and the circumstances of that proposed sale were made known in his affidavit in support of his application. 

17. The wife’s reticence initially in relation to his proposal is founded by Exhibit D where the existing selling agent, D Real Estate Suburb C Pty Limited, informed her of a market value of $3 million or more. Hence being apprised of that knowledge in early May 2016 she, no doubt, treated with some suspicion the revelations as to the husband having found a purchaser independent of the orders made on 24 May 2016.

18. Having regard to the matters set out above, the Court is not satisfied that the general rule in relation to costs should be displaced and the husband’s application for costs is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 June 2016.

Associate: 

Date:  29 June 2016