Elliott and Zova - [2009] FamCA 49

FAMILY COURT OF AUSTRALIA

ELLIOTT & ZOVA

[2009] FamCA 49

FAMILY LAW - COSTS - Costs claim by husband against wife’s former solicitor for costs relating to an application brought by the wife’s former solicitor that the husband's solicitors be authorised and directed to retain in their trust account funds held by them belonging to the wife pending the hearing and determination of the wife's former solicitor's claim against the wife the subject of proceedings in the Supreme Court of Queensland – Husband had no interest in the moneys in his solicitors’ trust account - Wife's former solicitor’s application that the moneys be retained based on a "fruits of litigation" claim - Wife's former solicitor's application for retention of the moneys brought after husband's solicitors had paid the moneys to the wife pursuant to court order – Wife’s former solicitor’s application for retention of the moneys subsequently discontinued - Husband's claim for costs dismissed – Wife’s former solicitor’s claim for costs also dismissed

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311 at [315]
Roam Australia Pty Ltd v Telstra Corporation Ltd [1997] FCA 980

APPLICANT:

Mr Elliott

RESPONDENT:

Mr Zova

FILE NUMBER:

BRF

747

2005

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

11 March 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr Carius

SOLICITORS FOR THE HUSBAND:

Hemming & Hart

MR ZOVA:

In person

ORDERS

The husband’s application for costs filed on 14 December 2007, including for his costs relating to that application, is dismissed.
Mr Zova’s application for costs filed on 18 January 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Elliott & Zova is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 747 of 2005

MR ELLIOTT

Applicant

And

MR ZOVA

Respondent

REASONS FOR JUDGMENT

Husband’s costs application and relevant background

By application in a case filed on 14 December 2007 Mr Elliott (the husband) seeks against Mr Zova the dismissal of an application in a case filed by him on 7 September 2007 and costs relating to that application.
Mr Zova is a solicitor. He conducts a sole practice. Until 15 February 2007, he had been the solicitor for Mrs Elliott (the wife) in proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) between her, the husband and other parties.
In August 2007, I gave judgment in those proceedings, and made an order that the net property and assets of the husband and the wife or either of them be divided to effect a division of 75% to the wife and 25% to the husband. The several paragraphs of that s 79 property order included (relevantly):
2The wife have:
(a)the balance proceeds of sale of the former matrimonial home at […], presently held in the trust accounts of Hemming & (sic) Hart and [Zova Solicitors], with accretions (estimated $172,190 being estimated $176,370 less $4,180) to be paid to her within seven days.
The genesis of paragraph 2(a) is fully set out in the judgment in the s 79 proceedings, par 11 (Schedule, item 1) and pars 12-14, dealing with item 1.
In short, the former matrimonial home had been sold in May 2006; the parties, by agreement, had distributed $80,000 each for their own benefit or use; and about $176,370 remained, held in Mr Zova’s trust account and Hemming & Hart’s trust account in roughly equal amounts.
Pursuant to par 2(a) of the s 79 order:
(a) the husband had no interest in the moneys in Hemming + Hart’s trust account; and
(b) on 10 August 2007 Hemming + Hart paid to the wife the amount which previously had been held in their trust account.
On 7 September 2007, Mr Zova, by Simonidis Shoebridge, filed by leave an application claiming (relevantly) the following:
1    That the Applicant be authorised to retain in his trust account the funds presently held by him pending the hearing and determination of his claim against the Wife [Mrs Elliott] which is the subject of his Claim filed in the Supreme Court of Queensland at its Brisbane Registry numbered […].
2    That the solicitors for the Husband Messrs Hemming and Hart be authorised and directed to retain in their trust account the funds presently held by them pending the hearing and determination of the Applicant’s claim against the Wife […] which is the subject of his Claim filed in the Supreme Court of Queensland at its Brisbane Registry numbered […].
3    That to give effect to paragraphs 1 and 2 hereof Order 2(a) of the orders made on 3 August 2007 be suspended until the hearing and determination of the said Claim or earlier order. (emphasis added)
Mr Zova’s claim contained further paragraphs (4, 5 and 6) not presently relevant.
The relief sought by Mr Zova in his application filed on 7 September 2007 related to a prospective “fruits of litigation” claim by him in relation to unpaid professional fees charged by him to the wife and in essence, by par 2, sought that pending the hearing and determination of his claim for fees against the wife in the Supreme Court of Queensland Hemming + Hart retain the moneys held in their trust account for the wife.
On 12 September 2007, I ordered:
1Any initiating application by [Zova] Solicitors / Mr [Zova], Solicitor, for injunctive or other relief as presently claimed in the Form 2 application in a case filed on 7 September 2007 be filed and served by 4pm on Friday 21 September 2007 together with a notice of discontinuance of the Form 2 application.
2Upon filing of the initiating application it be listed for hearing at 2.15pm on Tuesday 4 December 2007.
4[Zova] Solicitors / Mr [Zova], Solicitor, must file an affidavit annexing all and any costs agreements (or client agreements) made or alleged to be made between it or him and the wife.
5The husband, the wife and Hemming Hart Solicitors, after service on them of any such initiating application and affidavits in support (which may include the affidavit of [Mr Zova] filed on 7 September 2007) file and serve any responses and affidavits in response by 4pm on Tuesday 20 November 2007. (original emphasis)
NOTATION:
Subject to hearing argument, unless a notice of discontinuance earlier be filed, it is proposed that on 4 December 2007 Mr [Zova’s] Form 2 application in a case filed on 7 September 2007 will be struck out as irregular there being no proceedings on foot in which such an application in a case may be filed.
Copies of Mr Zova’s proposed application and supporting affidavit had been provided to Hemming + Hart on 6 September 2007, before they were filed on 7 September 2007. Subsequently, on 28 September 2007, filed copies of the application (still in Form 2) and supporting affidavit (the same affidavit) were served on Hemming + Hart.
On 4 October 2007, Hemming + Hart were notified by Simonidis Shoebridge, by letter of that date, that a notice of discontinuance would be filed in relation to Mr Zova’s application filed on 7 September 2007.
On 19 October 2007, Mr Zova caused to be filed a notice of discontinuance in relation to his application filed on 7 September 2007.
The notice of discontinuance was served on Hemming + Hart on 20 November 2007.
On 29 November 2007, after or in the course of dealing with a s 79A consent variation to the s 79 order (otherwise not presently relevant) Hemming + Hart, by Ms Sinclair, solicitor, raised that the husband wished to make a costs claim against Mr Zova in relation to his discontinued application.
In the circumstances, on 29 November 2007, I ordered:
1In relation to the applicant’s application for injunctive and other relief filed on 7 September 2007 and discontinued by notice of discontinuance filed on 19 October 2007:
(a) any party seeking costs file and serve an application for costs and all affidavit material in support by 4pm on Friday 14 December 2007;
(b) any affidavits in response be filed and served by 4pm on Friday 18 January 2008;
(c) the costs applications be listed for hearing at 10am on Tuesday 11 March 2008. (original emphasis)
On 14 December 2007, the husband, by Hemming + Hart, filed the application presently under consideration for orders that Mr Zova’s application filed on 7 September 2007 be dismissed and that Mr Zova pay the husband’s costs relating to it, on the indemnity basis, or alternatively fixed at $4,000, or alternatively as may be determined by the Court, as well as the husband’s costs relating to the hearing scheduled for 11 March 2008, including certification for Counsel’s fees.
That part of the application seeking the dismissal of Mr Zova’s application is confusing, it having been discontinued on 19 October 2007, nearly two months earlier, a matter known to Hemming + Hart before 14 December 2007. (Although the notice of discontinuance was not served on Hemming + Hart until 20 November 2007, advance notice had been given to Hemming + Hart by the letter 4 October 2007 that a notice of discontinuance would be filed).
More precisely, the costs order sought by the husband against Mr Zova is for the husband’s costs being:
·charges for professional services “in relation to the litigation”
·appearance at Court on 7 and 12 September 2007, said to be costs incurred “in relation to” Mr Zova’s application filed on 7 September 2007
·disbursements “in relation to the litigation”
·costs “associated with” the husband’s “response and supporting affidavit” in relation to Mr Zova’s application filed on 7 September 2007 and
·costs “associated with” the husband’s preparation for and attendance at “the hearing scheduled for 11 March 2008”, including certification for Counsel’s fees.
The husband’s costs application is supported by an affidavit by Robert Maxwell Foster, solicitor, and partner in Hemming + Hart with conduct of the matter, which affidavit sets out steps taken by Hemming + Hart and contains several annexures. Although Mr Foster was the partner in Hemming + Hart with conduct of the matter, he was assisted by Ms Sinclair, solicitor, who it appears had day to day conduct and is the author of (but not signatory to) all correspondence by Hemming + Hart annexed to Mr Foster’s affidavit. The husband’s costs application is supported also by written and oral submissions provided by Mr Carius of Counsel, who appeared for the husband on 11 March 2008.
Mr Zova filed a response on 18 January 2008 seeking that the husband’s application for costs be dismissed, and that the husband pay “the loss of income” related to Mr Zova’s responding to the husband’s application for costs, travel expenses to Brisbane on 11 March 2008 and time required to prepare for the costs hearing “including loss of income” on the indemnity basis.
Mr Zova’s application is supported by a brief affidavit by him, and oral submissions made by him on 11 March 2008 (as events transpired, by telephone).

Background to the filing of Mr Zova’s application on 7 September 2007 and preliminary observations

By letter dated 17 April 2007 from Mr Zova to Hemming + Hart, Mr Zova gave notice that he claimed an equitable interest in the amount which the wife may be awarded in the s 79 proceedings, the claimed interest being by way of outstanding legal fees and disbursements.
By letter dated 6 August 2007 from Mr Zova to Hemming + Hart, Mr Zova referred to the judgment in the s 79 proceedings given on 3 August 2007, noted that Hemming + Hart held moneys in their trust account as trustee for payment to the wife, gave notice of his intention to assert an equitable claim in relation to the moneys so held and requested of Hemming + Hart that before making payment to the wife they give notice to Mr Zova of that intention so that he may take steps to protect his claimed interest.
By letter dated 7 August 2007 from Hemming + Hart to Mr Zova, Hemming + Hart said:
We note that it is your intention to assert an interest in the funds held by this firm. Please be advised that until further ordered our client is obliged to act in accordance with the Order made by Her Honour Justice O’Reilly. (emphasis added)
By return letter dated 7 August 2007 from Mr Zova to Hemming + Hart, Mr Zova said:
The purpose of our letter yesterday was not to seek to have your client do other than act in accord with the orders that were made in the proceedings, but to ask that we be advised in the event that you are requested by the wife to make a payment to her or otherwise in reliance upon the orders. With respect, your letter of today does not respond to that request.
…
We have determined that it is appropriate that an application be promptly filed in which we seek a determination of our entitlement to have those funds paid to us pursuant to that equitable interest. We respectfully acknowledge that you have an interest in any such application so long as you hold funds on behalf of the parties, as does this firm. In that application we would be minded to seek that you be authorized and directed to pay the funds held by you to this firm, and that this firm be similarly authorized to hold the funds held by us in trust on our own behalf, as a credit against the costs presently due and owing.
We are presently of the understanding that since your interest in the funds held by you is limited to that of a trustee, you would not therefore be adversely affected by any order that we might seek to that effect, but we wish to make you aware of our intention to file an application as anticipated … . (emphasis added)
It would appear, from Mr Zova’s correspondence, that he was unaware that par 2(a) of the s 79 property order required that the moneys held by Hemming + Hart for the wife be paid to her “within seven days” of 3 August 2007, that is by 10 August 2007.
It would appear also, as I think is demonstrably plain, that at the time of filing his application on 7 September 2007 Mr Zova did not then know that Hemming + Hart already had paid the moneys in their trust account to the wife and that, if he had known that simple fact, by being told that by Hemming + Hart on or shortly after 10 August 2007, Mr Zova’s application in relation to the moneys formerly held in Hemming + Hart’s trust account would not have been made.
In my view, fundamental courtesy between practitioners demanded that Hemming + Hart inform Mr Zova of that simple fact, particularly as he had informed them that he proposed to make an application in relation to the moneys in the belief that they were held by them; and thus, could have assisted Mr Zova to avoid the costs for him of a futile application in relation to the moneys. Unfortunately, it appears that Hemming + Hart may have developed hostility towards Mr Zova (see, for example, the facts and matters in Zova & Elliott & Elliott [2008] FamCA 166 14 March 2008, and the unfortunate evidence in that case).
In any event, as to the state of Mr Zova’s knowledge as at 7 September 2007 (or at least as at 4 September 2007) in this regard I would refer to par 22 of Mr Zova’s affidavit filed on 7 September 2007 (sworn/affirmed 4 September 2007), which evidence I accept:
22I have had no further correspondence in relation to this aspect of the matter with the husband’s solicitors, nor have my solicitors, Simonidis Shoebridge and as a consequence, so far as I am aware, the husband’s solicitors still retain the said amount in their control. (emphasis added)
Further, I would refer to Mr Zova’s affidavit filed on 18 January 2008, in response to the husband’s costs application, pars 19, 20 and 22. Paragraph 19 is factual. Paragraph 20 contains Mr Zova’s stated position in the matter. Paragraph 22 however contains relevant evidence, which evidence I also accept:
19Order 2 of the Injunction Application was the only order that related to the husband which stated:
“That the solicitors for the Husband Messrs Hemming and Hart be authorised and directed to retain in their trust account the funds presently held by them pending the hearing and determination of the Applicant’s claim against the Wife [Mrs Elliott] which is the subject of his Claim filed in the Supreme Court of Queensland at its Brisbane Registry numbered […].”
20Because the husband’s solicitors had already paid the House proceeds to the wife at a prior date of being served and to the hearing of the Injunction Application, then the proposed Order 2 in the Injunction Application would not affect the husband or his solicitors and there was no need to respond to the Injunction Application.
…
22Order 2 as contained in the Injunction Application would not have been inserted had the husband’s solicitors responded to my request to provide prior notice of their intention to pay the House proceeds from their trust account to the wife. (emphasis added)
Paragraph 22 is important. As I read it, it is a criticism of Hemming + Hart’s letter dated 7 August 2007, which did not respond to Mr Zova’s request, nor provide the information that Hemming + Hart intended to pay the moneys in their trust account to the wife on or before 10 August 2007. Further, it is implicit I think in par 22 of Mr Zova’s affidavit that if Hemming + Hart had told Mr Zova on or shortly after 10 August 2007 that already they had paid the moneys to the wife, par 2 of Mr Zova’s application would not have been inserted in it, and consequentially par 3 would not have referred to par 2.
In this unfortunate chain of events, it is regrettable, as I have said, that Hemming + Hart did not, by way of professional courtesy to a fellow practitioner, send Mr Zova a short letter on or after 10 August 2007 to tell him that pursuant to par 2(a) of the s 79 order the moneys formerly held in their trust account had been paid to the wife and thus no longer were held.
Plainly enough, on the evidence which I have said I accept, and its analysis, if such a short letter had been sent, by way of courtesy, Mr Zova would not have named the husband as a respondent to his application (see the cover sheet - although the relief claimed in the body of the application was against Hemming + Hart not the husband), as well as not inserting par 2 in his application, and consequentially par 3 to the extent that it referred to par 2. Further, plainly enough, Mr Zova’s application and supporting affidavit thus never would have been served on Hemming + Hart with effect, plainly, that no costs whatever would have been incurred by the husband or them in relation to it.
However, despite these preliminary observations, based upon the want of professional courtesy, my task now is to consider the husband’s costs application on the bases upon which it was presented and argued, and make a determination accordingly, to which task I now turn.

Principles relevant to costs applications

It was not in issue that s 117 of the Family Law Act 1975 (Cth) applies. Pursuant to s117(1) and (2) the parties are to bear their own costs unless the Court forms the opinion that there are circumstances to justify a costs order in which case it may make such order as it considers just. Before making a costs order, the Court must identify the circumstance or circumstances on which it relies to justify the order and must have regard to the matters in s117(2A).
In Penfold v Penfold (1980) 144 CLR 311 the High Court said at 315:
It is an accurate description of s.117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s.117(2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. … (emphasis added)

The matters upon which the husband’s application for costs is based

Having regard to the matters in s 117(2A) of the Act, Mr Carius of Counsel, for the husband, advanced the following matters as relevant to the exercise of the discretion:
·S 117(2A)(e): Mr Zova was wholly unsuccessful in his “fruits of litigation” claim which, further, was “misconceived” and had “no prospects of success”
·S 117(2A)(c): Mr Zova’s conduct (and the conduct of his solicitors, Simonidis Shoebridge) caused the husband to incur costs needlessly, subsequent to the making of the s 79 order
·S 117(2A)(f): The husband made an offer in writing to Mr Zova to settle the husband’s costs application on the basis of the payment by Mr Zova to the husband of $1,800, which was a reasonable offer in all of the circumstances of the case.
Further, it was put by Mr Carius that Mr Zova’s conduct warrants an order for Mr Zova to pay the husband’s costs on the indemnity basis, because Mr Zova committed “multiple breaches of the Rules” causing the “unnecessary escalation of costs”.
Although in his application filed on 7 September 2007 no relief was sought by Mr Zova against the husband, Mr Carius made clear, during argument, that the costs application was brought by the husband, and that there was no application for costs by the husband’s solicitors. It was put that the costs incurred by the husband’s solicitors (including disbursements and outlays) were necessary, and incurred on the husband’s behalf, for a variety of reasons, including:
·Mr Zova’s application was “related” to the s 79 proceedings, in which the husband’s solicitors had been retained by the husband
·The husband’ solicitors had a “duty to assist the Court” in relation to the matter of Mr Zova’s application
·The husband’s solicitors would have been in contempt of any (possible future) Court order that they continue to hold the moneys in their trust account, even though before the making of any such (possible future) order they already had paid the moneys out pursuant to a prior Court order that they do so, and thus had good reason to resist the making of any such (possible future) Court order.
It is convenient to deal first with these aspects of the matter, before dealing with the s 117(2A) matters relied on.

Mr Zova’s application “related” to the s 79 proceedings

Whilst it is true that Mr Zova’s application was “related” to the s 79 proceedings, in which Hemming + Hart had been retained by the husband, those proceedings had been finalised on 3 August 2007 save, pursuant to par 19 of the s 79 property order, my monitoring of the carrying into effect of parts of the order (principally pars 4-13, not presently relevant) at hearings listed at 9.30am on 20 September 2007 and 31 October 2007, as specified in par 19, and a further hearing listed on 29 November 2007.
However, pursuant to par 2(a) of the s 79 property order, the husband had no interest in the moneys in Hemming + Hart’s trust account; and, on 10 August 2007, pursuant to par 2(a) of the s 79 property order, the husband’s solicitors already had paid the moneys in their trust account to the wife. It is difficult, in these circumstances, to accept that there was any basis for the incurrence of costs on the husband’s behalf in relation to Mr Zova’s application. Put shortly, no relief was claimed against the husband.
The only relief sought by Mr Zova “related” to the husband’s solicitors, in their capacity as a trustee, and thus did not “relate” to the husband at all. This not only is self evident, but seems to be recognised by the husband’s solicitors by the contentions in the second and third dot points above which, expressly, concern the husband’s solicitors, and not the husband at all.

Duty to assist the Court

Although it is plain that solicitors have a duty to assist the Court in matters in which they are retained, and indeed more broadly, occasionally in matters in which they are not retained, by reason of their being officers of the Court, the duty in this particular case would have been discharged fully by promptly informing the Court (by a short letter or the filing of a short affidavit (two lines), at the same time provided also to Mr Zova) stating simply that pursuant to par 2(a) of the s 79 property order the moneys the subject of Mr Zova’s claim in par 2 of his application had been paid to the wife on 10 August 2007.
Hemming + Hart’s duty to the Court (which was their own duty, not a duty to the husband, or one arising on his behalf) is to be distinguished however from the quite discrete matter of courtesy to a fellow practitioner, a matter to which I have referred already, and sensible conduct to obviate the needless incurrence of costs by both Hemming + Hart and Mr Zova.
All that had to be done by Hemming + Hart upon the receipt of Mr Zova’s application (then proposed application, not even yet filed) on 6 September 2007 (in their own capacity, not on the husband’s behalf) was to write a short letter to Mr Zova to tell him that which plainly he did not know, namely that pursuant to par 2(a) of the s 79 property order the moneys formerly held in their trust account had been paid to the wife, and perhaps, upon any ultimate (if it had been proceeded with) listing of the matter for hearing, file a short affidavit (two lines) stating that fact (and only that fact), if that had not been done already, and much earlier, in the discharge of the duty to assist the Court. Based on Mr Zova’s evidence to which I have referred already, and accept, it would seem to follow that if Hemming + Hart had told Mr Zova even as late as 6 September 2007 upon the provision to them of a copy of the proposed application that the moneys had been paid out then on 7 September 2007 Mr Zova in all probability would have deleted par 2 in his application with consequential amendment to par 3 before filing it by leave on that date (it having been prepared already and dated 4 September 2007).
Thus, the best assistance to the Court, in the discharge of the duty, and the best assistance to Mr Zova, as a fellow practitioner, would have been to do that which the husband’s solicitors did not do.

Contempt

The Court does not make orders which are impossible of performance. If, at any ultimate hearing of Mr Zova’s application, the Court had the information that on 10 August 2007 Hemming + Hart had pursuant to par 2(a) of the s 79 property order paid the moneys formerly held in their trust account to the wife, plainly the Court would not make an order that it be retained. If, for any reason, the Court did not have that information, and made the order that the moneys be retained, it is impossible to suggest that Hemming + Hart who already had paid the moneys to the wife, could have been in contempt. There cannot be retrospective contempt of a Court order not yet made. To suggest to the contrary is a nonsense.

The s 117(2A) matters relied upon by the husband

I will turn now to the s 117(2A) matters relied upon by the husband.

Wholly unsuccessful

There is a valid distinction to be made between a matter being wholly unsuccessful by Court determination, and a matter being wholly unsuccessful by being discontinued, in that in the latter case the merits are not judicially assessed or adjudicated upon.
However, it is valid to consider that an application discontinued nonetheless is wholly unsuccessful, because it is at an end without any successful result for the applicant. Further, I acknowledge that Rule 10.11(4) of the Family Law Rules 2004 (the Rules) provides that if a party discontinues a case (including part of a case and an order sought in an application: see Rule 10.10) another party may apply for costs within 28 days after the notice of discontinuance is filed. (Presently, the time limitation is irrelevant, because of order 1(a) of the orders made on 29 November 2007).
It seems however that Mr Zova’s discontinuance was effected (at least as against Hemming + Hart) wholly or in part because Mr Zova had learned, at some stage between 7 September 2007 and 4 October 2007, that Hemming + Hart already had paid the moneys formerly held in their trust account to the wife, so that there was no utility in proceeding with his application against Hemming + Hart. According to Mr Zova’s evidence, his decision to discontinue the application was the result of “comments” (observations) made by me on 12 September 2007. It is relevant to set out, in this regard, pars 14-17 of Mr Zova’s affidavit filed on 18 January 2008:
14For a period of about 10 minutes during the Subpoena Costs Application hearing that occurred on 7 and 12 September 2007, I recall Her Honour, Justice O’Reilly indicating to Mr Westbrook my counsel, various views about the Injunction Application and on 12 September 2007, that in general terms, she did not consider that the Injunction Application had merit.
15As a result of the comments made by Her Honour Justice O’Reilly on 12 September 2007, it was decided to discontinue the Injunction Application.
16On 4 October 2007, Simonidis Shoebridge Lawyers, who were representing me at the time, sent correspondence to the husband’s solicitors indicating that the Application filed 4 (sic) September 2007 (that is to mean the Injunction Application) would be discontinued.
17On 19 October 2007, a Notice of Discontinuance was filed in relation to the Injunction Application. (emphasis added)
I accept Mr Zova’s evidence, in par 15, that his decision to discontinue the application was “as a result” of “comments” (observations) which I made in Court on 12 September 2007.
Paragraph 14 asserts that on either or both of 7 and 12 September 2007 I indicated to Mr Westbrook of Counsel that I did not consider that Mr Zova’s application had merit. Whilst this may be a matter of interpretation, my observations primarily were not in relation to the “merits” as such, but rather futility, as the following examination of the transcript will show. On those dates I was hearing a quite separate application by Mr Zova for costs relating to a subpoena. On 7 September 2007, my attention was drawn to the existence of Mr Zova’s application (not yet filed) seeking the retention by Hemming + Hart of the moneys in their trust account which I had ordered be paid to the wife. I did not embark upon any determination of the matter and would not have prejudged it. The transcript of 7 September 2007 shows discussion as to the proper characterisation of a “fruits of litigation” claim: transcript 7 September 2007 3/45-6/12 and 95/5-97/15; and reference to the form of the application (Form 1 instead of Form 2): 100/30-101/35. Specifically however in relation to the merits of the matter I said “Let’s leave that argument for another day”: 97/15. The transcript of 12 September 2007 shows Mr Foster informing the Court that the moneys formerly in Hemming + Hart’s trust account had been released, and an observation by me “If they’re released, they’re released”: transcript 12 September 2007 106/12-20, which I will set out:
MR FOSTER: Before we pass, if I may, your Honour, if I’m reading that correctly, the situation is that in accordance with your order we have released the funds that - - -
HER HONOUR:   That’s all right. That’s all right. If they’re released, they’re released.
MR FOSTER:   Then the matter no longer, so far as that’s concerned, involves the respondent. (emphasis added)
Further, at transcript 12 September 2007 108/35-38 is the following:
HER HONOUR:   Then the relief seeks that Hemming + Hart retain in its trust account moneys held by them which on 3 August I ordered to be paid out to the wife within seven days and Mr Foster tells me that’s already been done. (emphasis added)
It seems obvious that until Mr Zova was told this information given in Court on 12 September 2007 he did not know that the moneys had been paid out, and it appears, as I have observed already, that Mr Zova had been unaware that the s 79 property order had required the payment to be made by 10 August 2007. Mr Zova, it must be recalled, no longer acted for the wife as at 3 August 2007 and had not done so since 15 February 2007. On 3 August 2007, when the s 79 property order was made and reasons for judgment given in the proceedings between the husband and the wife, Mr Shoebridge, solicitor, attended, after notice given by the Associate, for the purpose of directions being made in Mr Zova’s costs application related to a subpoena issued on 30 March 2007 and discharged by order made on 23 April 2007, which orders made on 23 April 2007 included that Mr Zova’s costs application be adjourned “to a date to be arranged after judgment is given in the s 79 proceedings”. On 3 August 2007, by a separate set of orders, directions were made in relation to that costs application, subsequently heard and determined: see Zova & Elliott & Elliott referred to above. Thus, even though arguably Mr Zova was “represented” when the s 79 property order between the husband and the wife was made, his business before the Court was quite separate. Plainly, by 4 September 2007, the date appearing on his application ultimately filed on 7 September 2007, Mr Zova was aware of the terms of par 2(a) of the s 79 property order, and, plainly, became aware of its terms some time between 3 August 2007 and 4 September 2007. His correspondence to Hemming + Hart 6 and 7 August 2007 (referred to above) show that he had been “advised” (seemingly by Mr Shoebridge) that the funds in Hemming + Hart’s trust account were to be paid to the wife but not that the order specified that the payment was to be made within any specified time limit. This is abundantly clear in particular by Mr Zova’s letter 7 August 2007 stating that he did not seek that anything be done other than “in accord with the orders that were made in the proceedings”. Indeed I would infer in all of the circumstances that if Mr Zova, as at 6 and 7 August 2007, had known that the orders provided that the payment be within seven days it is likely he would have moved the Court before 10 August 2007 for the relief he sought.
By way of clarification, for complete accuracy in the matter, and in fairness to Mr Foster, it is necessary to say that towards the end of the hearing on 7 September 2007, when the matter of Mr Zova’s application was raised (it having been mentioned also earlier in the hearing on 7 September 2007), Mr Foster had made a statement as to the payment of moneys “in accordance with the time limit that was imposed”: transcript 7 September 2007 95/40. At the time, the context in which that statement was made seemed to relate it to par 5 of the s 79 property order, namely the proceeds of sale of two properties: transcript 95/25-40 and see par 5 of the s 79 property order. However, as the two properties had not been sold (a matter which Mr Foster may be taken to have known), and indeed ultimately became the property of the wife pursuant to a later consent order made under s 79A(1)(b) made on 29 November 2007 (annexure A to that order, par 1), it would appear that Mr Foster’s statement (despite its context) may indeed have been intended to relate to the moneys referred to in par 2(a) of the s 79 property order as having been paid to the wife “in accordance with the time limit that was imposed”. However, as I have mentioned, this did not become clear until 12 September 2007, as is plain by reference to the transcript passages of that date already set out. Moreover, Mr Zova’s affidavit, par 15, refers to 12 September 2007 as the date of “comments” (observations) by me pursuant to which it was “decided to discontinue” his application.
I have referred already to the circumstance that Mr Zova’s application was filed by leave on 7 September 2007. This occurred before Mr Foster’s statement on 12 September 2007 that Hemming + Hart already had paid the moneys to the wife. The filing by leave however occurred after (shortly after) Mr Foster’s statement on 7 September 2007 to which I have earlier referred, which makes clear I think that Mr Foster’s statement on 7 September 2007, for whatever reason, was not effective to communicate the vital information it contained. See transcript 7 September 2007 3/45-4/25 and 99/5-25; and 12 September 2007 106/12-20 and 108/35-38. As will be seen, however, whether the information given in Court (in the course of the hearing of a quite separate matter) was given on 7 or 12 September 2007 ultimately is irrelevant to my determination of the substantive matter I am to determine.
Mr Westbrook of Counsel, for Mr Zova, told the Court on 7 September 2007 that Mr Zova’s application sought to be filed by leave had been lodged for filing on 31 August 2007, but as at 7 September 2007 the Registry had not issued it as a filed document. See transcript 7 September 2007 3/45-4/40 and 98/45-99/25. This is inaccurate, as is self evident by the date on the application 4 September 2007. However, nothing turns on that.
The transcript 12 September 2007 shows further the making of orders enabling Mr Zova to remedy the procedural defect in his application by filing a notice of discontinuance in relation to the Form 2 application and filing a fresh application in Form 1: 105/37-106/5 and 106/48-107/45. See also the orders made on 12 September 2007. Again, however, as to the merits of the matter I said “This is not the day for argument”: 109/11. Thus, there was no intimation by me of prejudgment of the matter. I should mention, in this context, by way of utility, that a separate part of Mr Zova’s application (par 4) had sought to restrain the wife from selling two real properties the subject of par 4 of the s 79 property order, which plainly was still a live matter: transcript 12 September 2007 106/48-107/5 and 108/50-109/5. This part of the application, plainly, did not concern the husband or Hemming + Hart.
Whilst, thus, there was no prejudgment, certainly on 12 September 2007 there was the sudden and inevitable realisation, I would think by everyone in the courtroom who heard Mr Foster’s statement, of the futility of Mr Zova’s application to restrain Hemming + Hart from paying out the moneys already paid out.
In this regard, I would refer again to par 22 of Mr Zova’s affidavit filed on 7 September 2007 (see at par 30 above), being testimony by Mr Zova that as at its affirming/swearing date (4 September 2007) so far as he was aware Hemming + Hart still held in their trust account the moneys the subject of his application against them.
What is important thus is that the discontinuance of Mr Zova’s application (at least in so far as it had sought that Hemming + Hart retain the moneys in their trust account) was because at some stage between 7 September 2007 and 4 October 2007 it came to Mr Zova’s attention that the moneys already had been paid out so that there was no utility in proceeding with par 2 of the application, and consequentially par 3 in so far as it related to par 2. Whether Mr Zova may have had other reason to discontinue the application in its entirety is not presently relevant.
I have said that I accept Mr Zova’s evidence in par 15 of his affidavit filed on 18 January 2008 that his decision to discontinue the application was “as a result” of “comments” (observations) made by me on 12 September 2007. In this regard, it is not necessary to look beyond my observation on that date as to the obvious, in relation to the moneys: “If they’re released, they’re released” and “Mr Foster tells me that’s already been done”. However, Mr Zova does not say in par 15 that the decision to discontinue was made on 12 September 2007. Indeed, it appears that he may not have been in the courtroom on 12 September 2007 and thus was given the information subsequently. Mr Zova lives north of Brisbane. On 7 and 12 September 2007 he was represented by Mr Westbrook of Counsel. As is plain by reference to Zova & Elliott & Elliott referred to above, at [79], Schedule, “Basket 1”, items below the table at p 19, his costs claim in relation to the subpoena (which I was hearing on 7 and 12 September 2007) included a claim for his travel to Brisbane and attendance at Court on 7 September 2007 but not 12 September 2007. Thus, it may be inferred that Mr Zova was not present in Court on 12 September 2007 when Mr Foster made his statement and that he learned of it at some later stage but by 4 October 2007.

In these circumstances, it is difficult for Mr Carius to contend that Mr Zova’s “fruits of litigation” claim was “misconceived” and had “no prospects of success” other than in the context of the circumstance that the moneys already had been paid out to the wife. Certainly, on 7 and 12 September 2007, there was no adjudication of the husband’s “fruits of litigation” claim having regard to the relevant principles in relation to such claims as set out, for example, in Roam Australia Pty Ltd v Telstra Corporation Ltd [1997] FCA 980. Thus, in my view, it is not open to Mr Carius to contend that if the moneys had not been paid out there may not have been merit in Mr Zova’s “fruits of litigation” claim, nor that it was “misconceived” and had “no prospects of success” other than on the basis that the moneys already had been paid out before Mr Zova’s application was filed. That is to say, if the moneys had not been paid out already, Mr Zova ultimately may have succeeded in his “fruits of litigation” claim to have the moneys held on trust for the wife in Hemming + Hart’s trust account paid out to Mr Zova. That was never litigated and thus now will never be known.
Mr Carius put also that the husband was “wholly successful” in “resisting” Mr Zova’s application. This contention is awkward, in the circumstances which I have described, in particular that the application was discontinued by Mr Zova. Further, no relief was sought against the husband for him to “resist”. The only relief sought (relevantly) was against Hemming + Hart.

Conduct

The conduct of Mr Zova relied upon by the husband, and some of the claimed consequences of that conduct are:
·Before the provision of Mr Zova’s proposed application on Hemming + Hart 6 September 2007, Mr Zova made requests for information to them, as set out in the correspondence 6 and 7 August 2007, and requested to be given notice of any request by the wife for payment, which requests, it is alleged, necessitated Hemming + Hart to read the correspondence and respond to it (the correspondence is that dated 6 and 7 August 2007, referred to above)
·Mr Zova, having provided unsealed copies of his proposed application and supporting affidavit on 6 September 2007 (by hand delivery by Simonidis Shoebridge) then, by himself on the same date, by facsimile served several copies of the same material, supplemented by a further facsimile from Mr Zova on 7 September 2007; whereas filed copies of the application and supporting affidavit were not served until 28 September 2007 (by Simonidis Shoebridge)
·The facsimile unsealed copies provided by Mr Zova on 6 September 2007 (44 pages) was sent four times: 5.17pm, 5.33pm, 5.49pm and 5.51pm, with repeat sending by facsimile of some of that material on 7 September 2007 at 8.49am, necessitating Hemming + Hart to read all of that material (several bundles of material each 44 pages)
·Mr Zova’s application served on 28 September 2007 (filed copy) remained in Form 2, despite order 1 made on 12 September 2007 and the notation to those orders, alleged to be a “breach” by Mr Zova of order 1; and further there was “breach” of order 4 of those orders requiring Mr Zova to file an affidavit annexing all and any costs agreements (or client agreements) made or alleged to have been made between his firm (or him) and the wife
·On 7 September 2007 Mr Zova had not complied with that part of par 2(a) of the s 79 property order which required him to pay to the wife the moneys held in his own trust account
·Mr Zova breached the Rules “on several occasions” not only by his use of a Form 2, rather than a Form 1, but at various times breached the Rules relating to the filing of a notice of address for service and relating to not sending more pages by facsimile than permitted by the Rules
·Mr Zova personally dealt with Hemming + Hart, despite having Simonidis Shoebridge as his solicitors on the record, leading to confusion and the necessity for correspondence to seek clarification as to whether Simonidis Shoebridge represented Mr Zova in relation to his application.
The husband’s case is that this conduct caused the incurrence of costs relating not only to the reading of the material served, but necessary correspondence, electronic court searches (three in number) and the amendment of an existing application by the husband. In this regard, his case is that because as at 26 September 2007 no Form 1 application had been filed by Mr Zova there was therefore no competent application (it not being in Form 1) in which Hemming + Hart competently could file the husband’s costs application against Mr Zova in relation to his application filed on 7 September 2007. In the result, Hemming + Hart amended an existing application by the husband for costs (against the wife and Mr Zova for the husband’s trial costs) to include a costs application against Mr Zova in relation to his application filed on 7 September 2007. See the husband’s (separate) amended application in a case filed on 26 September 2007, par 7(ii).
I will deal with these matters as shortly as I can.
The correspondence 6 and 7 August 2007 preceding the filing of Mr Zova’s application amounted to genuine and reasonable inquiry by him to protect his claimed interest.
Hemming + Hart could have, but for reasons which I am unable to fathom, did not, write a short letter to Mr Zova on or soon after 10 August 2007 to tell him that on that date, pursuant to par 2(a) of the s 79 property order, they paid the moneys formerly held by them to the wife.
The giving of advance notice by Mr Zova to Hemming + Hart, on 6 and 7 September 2007, of his intended application, was genuine and reasonable conduct by him to protect his claimed interest, particularly as Hemming + Hart had not, as at those dates, told Mr Zova that the moneys formerly held in their trust account already had been paid to the wife.
The sending of multiple copies of the documents on 6 and 7 September 2007 seems to have been machine error, which unfortunately at times can and does occur. However, a cursory glance at the material would have shown it to have been the same, sent repeatedly in error.
There was no breach by Mr Zova of the orders made on 12 September 2007. Order 1 did not require Mr Zova to file an application in Form 1. Rather, it permitted him to do so if he so chose. Order 4 was intended by me to operate in conjunction with order 1, not independently of it, so as to require Mr Zova (if he filed a Form 1 application) to file also an affidavit annexing all and any costs agreements (or client agreements) made or alleged to have been made between his firm or him and the wife. This I would have thought plain, without explanation.
Order 5 of the orders made on 12 September 2007, in terms, required the husband and Hemming + Hart to respond only after any service on them of any Form 1 application filed by Mr Zova, and not otherwise. There was therefore no necessity for the husband or Hemming + Hart to take any action after the service on 28 September 2007 of the same Form 2 application and supporting affidavit, of which unsealed copies they had received earlier on 6 and 7 September 2007. This is because the notation to the orders made on 12 September 2007 made clear that on 4 December 2007, the listing date allocated on 12 September 2007, unless a notice of discontinuance earlier be filed, I proposed, subject to hearing argument, to dismiss Mr Zova’s Form 2 application as irregular.
The matter of Mr Zova not complying with that part of par 2(a) of the s 79 property order which required him to pay moneys in his trust account to the wife was not the business of the husband or Hemming + Hart, and needed no attention by him or them.
Whether Mr Zova breached the Rules by filing and serving a Form 2, rather than a Form 1, pales into insignificance when it is considered that if Hemming + Hart had told Mr Zova on or shortly after 10 August 2007 that already they had paid the moneys in their trust account to the wife, Mr Zova (as is plain) would not have sought any relief against the husband or Hemming + Hart. Mr Zova’s use of a Form 2, rather than a Form 1, cannot in my view have caused any cost consequences to the husband or Hemming + Hart. The fact is, as I find, that an application was made (regardless of the form) which could have been wholly avoided if Hemming + Hart had given notice to Mr Zova on or shortly after 10 August 2007 that the moneys formerly held in their trust account already had been paid to the wife, particularly as they were on notice as to his intended application.
Suggested breaches of the Rules relating to the filing of an address for service are I think misconceived. Mr Zova’s application, on the cover sheet, clearly showed that Simonidis Shoebridge were his solicitors in the application and provided their address for service at Brisbane. See Rule 8.05(3)(a). Although the email address (provided as part of the address for service on the cover sheet to the application) was Mr Zova’s email address, I cannot imagine that such a minor error, seemingly caused by inadvertence, ought to have caused excitement or confusion.
It is suggested that, pursuant to Rule 8.06, Note 1(c), a new address for service was required because after initially appointing Simonidis Shoebridge in relation to his application, later Mr Zova acted “in person”. I do not think this is a correct analysis. Simonidis Shoebridge wrote to Hemming + Hart on 5 September 2007 advising that they held instructions on behalf of Mr Zova in relation to “all matters” relating to BRF747/2005. Simonidis Shoebridge were the solicitors on the record in relation to Mr Zova’s application filed on 7 September 2007 by reference to the cover sheet to that application, showing that their address was Mr Zova’s address for service in relation to the application.
After 7 September 2007, Mr Zova did not communicate directly with Hemming + Hart. I note that on 4 September 2007, before Mr Zova’s application was filed on 7 September 2007, Hemming + Hart wrote to Simonidis Shoebridge announcing that they would communicate directly with Mr Zova. (Mr Foster’s affidavit, annexure RMF6). However, that was before Mr Zova’s application was filed, which application showed clearly, as I have mentioned, that Simonidis Shoebridge were Mr Zova’s solicitors on the record in relation to his application filed on 7 September 2007 and that Mr Zova’s address for service was their address.
For some reason, as deposed in Mr Foster’s affidavit, Hemming + Hart made several electronic court searches (three in number) one of which did not show that Simonidis Shoebridge acted for Mr Zova in relation to the application filed on 7 September 2007. Mr Foster’s affidavit, par 35, describes annexure RMF14, being the relevant electronic search referred to at par 35, as “showing” that Simonidis Shoebridge “were not the solicitors on the record for Mr [Zova]”. This is incorrect. Rather, the search referred to simply did not show that they were. There is a distinction between a positive assertion that the contents of a document contain negative information (that Simonidis Shoebridge “were not the solicitors on the record”), and the mere silence of that document by its containing no information as to the relevant subject matter (no information as to which firm, if any, were the solicitors on the record). Moreover, the Court’s electronic file search system (as demonstrated on the face of annexure RMF14) contains a statement that it is not the Court’s formal record. In any event, I am at a loss to understand why the searches were done. Hemming + Hart were entitled to rely and ought to have relied on the cover sheet of Mr Zova’s application which contained the clear information that Simonidis Shoebridge were Mr Zova’s solicitors on the record in relation to it, unless and until advised by Simonidis Shoebridge or Mr Zova to the contrary. In any event, the omission in the Court’s electronic record is not Mr Zova’s nor Simonidis Shoebridge’s fault.
Further, as correctly stated in Mr Foster’s affidavit, par 45(b), Mr Zova was “never a self represented litigant”. Thus, Rule 8.06, Note 1(c), invoked by Hemming + Hart to found the allegation of a breach of the Rules by Mr Zova has no application to the facts of the case.
The fact of Simonidis Shoebridge being the solicitors on the record in relation to Mr Zova’s application is so plain that it is difficult to understand why Hemming + Hart suffered confusion as to this aspect of the matter. Moreover, it does not appear on the evidence that Mr Zova, as alleged, made any personal communication with Hemming + Hart in relation to the matter after 7 September 2007, on which date Simonidis Shoebridge became his solicitors on the record. In any event, even if he had, it is difficult to see any cost consequence.
If the Rules (see Rule 7.16) were breached by a facsimile containing more pages than permitted, that does not have a costs consequence, other than perhaps the cost of the paper at the receiver’s end. If a document is to be read, it can hardly be relevant to costs whether it was sent by facsimile or hand delivered. Moreover, in cases of urgency of notice, as occurred in this case, at least from Mr Zova’s perspective, the main purpose of the Rules must be considered as well as the Court’s power to dispense with compliance with the Rules in an appropriate case even after the occasion for compliance has passed: see Rules 1.06, 1.07, 1.08 and 1.12(2).
There is reference in Mr Foster’s affidavit (par 37) to the firm Barry & Nilsson as also acting for Mr Zova. This is not a matter of any confusion. That firm was acting for Mr Zova solely in relation to the husband’s application for costs against the wife and Mr Zova for the husband’s trial costs. Barry & Nilsson made this clear to Hemming + Hart by their letter 13 December 2007. See Mr Foster’s affidavit, annexures RMF17 and 18.
The matter of the claimed required amendment to the husband’s costs application against the wife and Mr Zova in order to bring the costs claim presently under consideration because as at 26 September 2007 no Form 1 application had been filed by Mr Zova begs the question whether the husband was entitled to bring any costs claim against Mr Zova in relation to his application filed on 7 September 2007, there being no relief sought against the husband in Mr Zova’s application filed on 7 September 2007. Moreover, if the costs claim presently under consideration should fail, it being the same as the subject matter of the amendment referred to (par 7(ii) of the husband’s application in a case filed on 26 September 2007), then there is no substance in this aspect of the matter.

Offer to settle

Usually, offers to settle are considered after the Court has made a determination on the principal application, in this case the husband’s application for costs.
It is therefore not appropriate for me to consider the husband’s offer to settle his costs claim for $1,800 (see Mr Foster’s affidavit, par 56 and annexure RMF17) until I have determined whether the husband should be awarded costs.

The heads of costs claimed

Appearance at Court 7 and 12 September 2007

On 7 and 12 September 2007 I heard a quite separate application by Mr Zova for costs relating to a subpoena.
In the course of that hearing, Mr Zova’s application the subject of the present costs claim was filed by leave: transcript 7 September 2007 99/15. It was however not dealt with other than by incidental observations by me on either or both of 7 and 12 September 2007, and the making of the procedural orders on 12 September 2007, to which I have referred.
The time spent on those dates in relation to Mr Zova’s application the subject of the present costs claim was minimal, and did not unduly lengthen the hearing time on either date. The totality of the minimal time spent on those dates in relation to Mr Zova’s application is evidenced by the following. On 7 September 2007, the matter was referred to at transcript 3/45-6/40 and 94/45-101/50; and on 12 September 2007 the matter was referred to at transcript 103/30-111/35; each demonstrating the minimal amount of time spent on the matter on those dates and that it was incidental and did not unduly lengthen the hearing on those dates of the application then being heard. In any event Hemming + Hart were present for the substantive hearing of the other matter listed for hearing on those dates namely Mr Zova’s application for costs relating to a subpoena.
Mr Foster’s affidavit, par 52, asserts:
52On 12 September 2007, Hemming + Hart Lawyers were wholly successful in having the Injunctive Application, essentially, summarily dismissed.
This is not accurate. There was no summary dismissal. Rather, various submissions and argument on that date led to the procedural orders which I made on that date and the notation already referred to. I accept that on 7 September 2007 Mr Foster raised with the Court the procedural irregularity of Mr Zova’s application being in Form 2, namely an application in a case, in circumstances in which there were no longer any principal proceedings on foot in which any such application in a case properly could have been made so that any application by Mr Zova was required to be an initiating application in Form 1: transcript 7 September 2007 100/30-101/35 and transcript 12 September 2007 103/45-106/8. In the events which transpired however of the filing of a notice of discontinuance in relation to Mr Zova’s Form 2 application it is plain there was no summary dismissal. It is true, as shown in the transcript passages to which I have referred (in particular 12 September 2007 103/45-104/1) that I observed that, subject to hearing argument from Mr Westbrook, who appeared for Mr Zova in his subpoena costs application, the application in Form 2 “really must be dismissed” for its procedural irregularity. With the benefit of hindsight, it may have been preferable if I had ordered that the Form 2 be treated as a Form 1, as I have done on occasions with litigants in person. However, none of this alters the reality that the Form 2 application ultimately was discontinued and not dismissed, summarily or otherwise.
In my view therefore if costs otherwise should be allowed none should be allowed as claimed for “appearance at Court on 7 and 12 September 2007”. Hemming + Hart already were present in the courtroom on those dates on other business, and I deemed it expedient to make the observations and orders which I made.

Costs “associated with” the husband’s “response and supporting affidavit” in relation to Mr Zova’s application filed on 7 September 2007

A further head of claim is for costs “associated with” the husband’s “response and supporting affidavit” in relation to Mr Zova’s application filed on 7 September 2007. I have observed already that the only response necessary was a short affidavit (two lines) deposing to the circumstance that the moneys formerly held in the husband’s solicitors’ trust account already had been paid to the wife; and then to be filed only upon any ultimate listing of the matter.
In any event, the husband’s material does not refer to any “response and supporting affidavit” having been prepared or filed. Indeed, as previously I have explained, none was necessary or required until after Mr Zova filed a Form 1 application, which he did not do. Order 5 of the orders made on 12 September 2007 made this clear.
The hearing date listed for 4 December 2007, specifically, by order 2 made on 12 September 2007, was only in relation to any such Form 1 application, if filed, it being clear by the notation that, subject to hearing argument, unless a notice of discontinuance earlier be filed Mr Zova’s Form 2 application would be dismissed on 4 December 2007. The hearing date was vacated, there being no Form 1 application filed by Mr Zova, and there being earlier the notice of discontinuance filed on 19 October 2007 in relation to the Form 2 application, advance notice of which was given to the husband’s solicitors on 4 October 2007.

At the risk of repetition, it is clear by order 5 of the orders made on 12 September 2007 that there was no necessity or requirement for the husband to prepare or file any material, until after a Form 1 application should be filed and served by Mr Zova. There was no Form 1 application. Thus, order 5, requiring the filing of material by the husband or his solicitors by 20 November 2007 did not become operative. Indeed, instead, Mr Zova’s notice of discontinuance was filed on 19 October 2007, before 20 November 2007 had arrived. It is not of consequence that the notice of discontinuance was not served on Hemming + Hart until that same date, 20 November 2007, because in any event they were not required to file any material before that date, as explained. Moreover, Hemming + Hart had notice as early as 4 October 2007, within seven days after service on 28 September 2007 of Mr Zova’s filed application and supporting affidavit, that a notice of discontinuance would be filed.
Mr Zova said, during argument, that the service by Simonidis Shoebridge on Hemming + Hart on 28 September 2007 of the Form 2 application and supporting affidavit resulted from a “miscommunication error”. Whilst this is not evidence, and cannot and is not regarded by me as such (it being a statement from the Bar table) there is sufficient evidence for me properly to draw the inference of miscommunication error. First, the orders made on 12 September 2007, and the notation to those orders, were clear in their terms. It cannot be imagined that any solicitor with knowledge of those orders and the notation to them would have served on 28 September 2007 the Form 2 application filed on 7 September 2007 unless by mistake. This is so self evident that it defies contradiction. Secondly, it would appear that the service on 28 September 2007 of the Form 2 application was not initiated by Simonidis Shoebridge by their own proactivity. Rather, on 26 September 2007 Hemming + Hart, by Ms Sinclair, seemed to have initiated or caused Simonidis Shoebridge’s unwitting error, by unnecessary proactivity. In short, by letter 26 September 2007 (authored by Ms Sinclair) Hemming + Hart wrote to Simonidis Shoebridge (Mr Foster’s affidavit 14 December 2007, annexure RMF11):
We note that we have not been served with anything pursuant to the orders made by Her Honour Justice O’Reilly on 12 September 2007 in relation to your client’s application for injunctive relief. (emphasis added)
Other paragraphs in the letter related to a separate application, and made reference to a separate set of orders made on 12 September 2007 in that separate application and thus are not relevant.
The paragraph set out seems, singularly, to have caused Simonidis Shoebridge then on 27 September 2007, under cover of a letter of that date (part of annexure RMF12 to Mr Foster’s affidavit filed on 14 December 2007) by erroneous reaction to the suggestion that something ought to have been done which had not been done, to respond by serving on Hemming + Hart the Form 2 application and supporting affidavit filed on 7 September 2007 (received by Hemming + Hart on 28 September 2007 under cover of the letter 27 September 2007). See also the further letter authored by Ms Sinclair 28 September 2007, annexure RMF13 to Mr Foster’s affidavit filed on 14 December 2007, inquiring “Could you please explain why your client has persisted with the application”, being the Form 2 application, without cognisance of the obvious fact that its service was responsive to her letter 26 September 2007. The timing of the responsive service, I think, leads easily to the conclusion of error, and “miscommunication error”. Certainly, the responsive service was not the fault of Mr Zova.
If that analysis is unfair, then, as I have observed, in any event the husband’s material does not refer to any “response and supporting affidavit” having been prepared. Moreover, even if that had been deposed to, it would not impact upon my central finding that if Hemming + Hart had told Mr Zova on or shortly after 10 August 2007 that already they had paid the moneys in their trust account to the wife, no claim by Mr Zova against Hemming + Hart for retention of the moneys would have been made, to require any “response” by the husband or his solicitors.

Charges for professional services and disbursements “in relation to the litigation”

The claim for charges for professional services “in relation to the litigation” and for disbursements “in relation to the litigation” on the evidence are unclear. What is clear however is that “the litigation”, relevantly, can only be a reference to Mr Zova’s claim for injunctive relief against Hemming + Hart (par 2 of Mr Zova’s application) and associated relief (par 3 of Mr Zova’s application). As I have explained, however, there was no necessity for the husband or Hemming + Hart to do anything in relation to Mr Zova’s application other than to do the very thing which Hemming + Hart did not do, namely simply to notify Mr Zova that the moneys the subject of his proposed application already were paid out to the wife which, as I have found, if Hemming + Hart had done, would have resulted in Mr Zova’s application against them not being brought at all.
Moreover, there could not have been any costs incurred by the husband, because no relief was sought against him, and, according to par 2(a) of the s 79 property order, he had no interest in the moneys held by Hemming + Hart. Plainly then, any costs which Hemming + Hart did incur (whether reasonably or unreasonably), were incurred on their own behalf (the relief in par 2, relevantly, being sought against them, and consequentially the relief in par 3) and not on the husband’s behalf. I have referred already to the circumstance that Mr Carius made clear, during argument, that the costs application was brought by the husband, and there was no application for costs by the husband’s solicitors.

Costs “associated with” the husband’s preparation for and attendance at “the hearing scheduled for 11 March 2008”, including certification for Counsel’s fees

The remaining head of costs claimed is for costs “associated with” the husband’s preparation for and attendance at “the hearing scheduled for 11 March 2008”, including certification for Counsel’s fees. However, the listing on 11 March 2008, ordered on 29 November 2007, was only for costs applications filed by “any party” seeking costs, to be filed by 14 December 2007. See order 1. Only the husband filed a costs application pursuant to order 1. Thus, the listing on 11 March 2008 was solely in relation to the husband’s costs application filed on 14 December 2007. It follows that if that costs application should be dismissed, there can be no claim for its preparation or for attendance on 11 March 2008, or indeed for Counsel.
It is relevant to mention in this context that on 29 November 2007, by three separate sets of orders, I dealt with (1) a consent variation to the s 79 property order pursuant to s 79A(1)(b); (2) directions in the husband’s costs application filed on 26 September 2007 for his trial costs against the wife and Mr Zova, listed for hearing on 2 May 2008; and (3) directions in this matter, already set out above, pursuant to which the husband’s costs application presently under consideration was filed on 14 December 2007.

Determination and decision

In my view, the husband’s application for costs against Mr Zova must fail, because:
(a)Mr Zova’s application filed on 7 September 2007, although naming the husband as a respondent, did not seek any relief against the husband;
(b)upon pronouncement of the s 79 property order on 3 August 2007, the husband had no interest in the moneys held in his solicitors’ trust account; and
(c)in substance, the only relief claimed by Mr Zova (relevantly) was that the husband’s solicitors (in their capacity as trustee), if directed by the Court, retain moneys in their trust account pending the hearing and determination of a claim made by Mr Zova in another court (par 2) and associated relief (par 3), with neither the husband nor his solicitors having any interest in the outcome of that application in another court.
I will now expand upon these matters.
Traditionally, and properly, where a solicitor holds moneys as a trustee, and notice is given of a proposed court application for it to be held pending some future application or event, the solicitor holding the moneys immediately notifies all concerned that he or she will “abide the order of the court” and, properly, has no further involvement.
By analogy, in this particular case, because the husband’s solicitors already had paid to the wife the moneys formerly held in their trust account, the proper course would have been for Hemming + Hart to notify Mr Zova that the moneys already had been paid.
It is difficult to find any reason why, in this case, the husband’s solicitors did not adopt that proper course, but rather, by misconception of their role as trustee (and indeed a former trustee at that, the moneys formerly held having been paid out), set about the extraordinary and unwarranted course of action described in Mr Foster’s affidavit.
Further, in my view, any costs incurred by the husband’s solicitors, as I have explained above, were unnecessary, with the minor exception of perusing the documents served on them, at minimal cost. There was no rational basis for the husband’s solicitors to do anything in relation to Mr Zova’s application, other than that which they did not do, but which properly they should have done, as explained above.
In the exercise of my discretion, however, I will not allow that minimal cost, for the following reasons.
Having carefully considered the s 117(2A) matters relied upon by the husband, as analysed above, I am not satisfied that there is any justifying circumstance to award costs. In essence, referring to each of the s 117(2A) matters relied upon by the husband:
(a)the husband’s allegation that Mr Zova’s application was “wholly unsuccessful”, because it was discontinued, ignores the circumstance, as I have found, that Mr Zova’s application would not have been brought at all against the husband’s solicitors if they, on or shortly after 10 August 2007, had told Mr Zova that the moneys formerly held in their trust account had been paid to the wife. In this regard, I have referred to my finding based upon my acceptance of Mr Zova’s evidence. Further, common sense dictates that, if a solicitor is on notice of a pending application in relation to moneys held in his or her trust account, that solicitor promptly should give notice to the inquirer that the moneys already have been paid out;
(b)having carefully considered all of the allegations of conduct against Mr Zova, in Mr Foster’s affidavit and in Mr Carius’s written and oral submissions, as analysed above, I am unable to conclude that any conduct by Mr Zova is a justifying circumstance to make a costs order; and
(c)as I have determined already, it is not appropriate to consider the husband’s offer to settle his costs claim before I have determined whether he should be awarded costs.
There is therefore no “essential preliminary” to the making of a costs order.
The result is that the husband’s application for costs will be dismissed. It follows that his application for costs of his costs application also must be dismissed.
Further, having regard to s 117(2A)(g), namely “such other matters as the Court considers relevant”, although the husband’s solicitors, properly, as I have found, incurred minimal costs, they also however have caused Mr Zova to incur costs not only in defending the husband’s costs application, evidenced by Mr Zova’s response filed on 18 January 2008 and affidavit in support, but also his time in appearing (by telephone) on the husband’s unsuccessful costs application on 11 March 2008 which costs, on any view, would exceed those minimal costs.
Finally, I return, for emphasis, to the circumstance that no relief was sought against the husband, only against the husband’s solicitors. I have dealt above with Mr Carius’s submissions in this regard, namely that the application “related” to the s 79 property proceedings the subject of their retainer; the “duty to assist the Court” submission; and the contempt submission; all of which I have rejected, for the reasons already explained.

Mr Zova’s costs application

The husband’s application for costs has been wholly unsuccessful.
Further, Mr Zova, somewhat generously, made an offer in writing to pay $500 for the husband’s costs, which offer was rejected. See Mr Foster’s affidavit filed on 14 December 2007, par 61 and annexure RMF18.
Despite these matters in Mr Zova’s favour, in relation to exercise of the discretion under s 117 and in particular the matters which must be considered under s 117(2A), Mr Zova urged at the conclusion of the hearing that “given the nature of what has occurred” each party should pay his/its own costs of the husband’s costs application.
In my view, in all of the circumstances, that is the proper result.
I will therefore also dismiss Mr Zova’s application for his costs of the husband’s failed costs application.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: