Eleninovska & Patronis (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELENINOVSKA & PATRONIS (No.2) [2007] FMCAfam 906

FAMILY LAW – Costs – conduct during course of litigation – husband ordered to pay costs of wife.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Charles & Charles [2007] FamCA 276
G, T and G, L [2004] FMCAfam 9
Kohan and Kohan (1993) FLC 92–340

Applicant: SUZIE ELENINOVSKA

Respondent: FRANK PATRONIS

File Number: SYM 3564 of 2006

Judgment of: Sexton FM

Hearing date: 24 October 2007

Delivered at: Sydney

Delivered on: 2 November 2007

REPRESENTATION

Solicitors for the Applicant: Norbert Lipton & Co.

Solicitors for the Respondent: Newnhams Solicitors.

ORDERS

1. That the husband pay the wife’s costs of the property and costs proceedings in the total sum of $18,200.00 by 31 January 2008.

2. That all outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 3564 of 2006

SUZIE ELENINOVSKA

Applicant wife

And

FRANK PATRONIS

Respondent husband

REASONS FOR DECISION

1. This is the wife’s costs application in relation to proceedings brought by her for property orders. The property proceedings were heard at Sydney on 26 and 27 February 2007 and judgment was delivered on 15 May 2007. The husband was unrepresented at the trial, though had been represented during almost the whole course of the proceedings until shortly before trial. The husband was represented by Mr Thompson or Newnhams at the hearing of this application.

2. In summary, Mr Sankey, solicitor for the applicant wife argues that the property proceedings could have been avoided altogether, or at least finalised much earlier if the respondent husband had fully and frankly disclosed his financial position when first asked to do so, and had conducted the proceedings in a cooperative manner. Instead, Mr Sankey says “a fairly simple application involving a relatively small amount of property, developed into an extremely complicated and difficult action, necessitating the wife’s representation by an experienced barrister.”

3. While conceding the husband’s conduct during the proceedings was less than satisfactory, Mr Thompson submits the husband’s conduct before and during the proceedings was not such as to justify a departure from the usual rule that each party pay his/her own costs.

4. In her application filed 8 June 2007, the wife seeks indemnity costs from the husband in the sum of $56,474.06 inclusive of GST, or in the alternative, costs as assessed or taxed on an indemnity basis. In addition, the wife seeks costs of the costs proceedings in the sum of $2,200. Mr Sankey deposes to the wife having incurred costs, inclusive of GST, in the sum of $39,490.00 and disbursements of $18,484 (Mr Sankey’s total of $16,751 is inaccurate). The wife says, as at 28 September 2007, she owes her solicitors $32,122.68 and her sister $14,000 which she borrowed to meet her counsel’s fees and her share of the forensic accountant’s fees.

5. The husband asks that the wife’s application be dismissed and that the wife pay the husband’s costs of…