Elliott & Anor and Elliott

[2013] FamCA 1130

FAMILY COURT OF AUSTRALIA

ELLIOTT AND ANOR & ELLIOTT [2013] FamCA 1130

FAMILY LAW – ORDERS – Where the applicant husband is deceased – where the respondent wife has failed to comply with an order for the sale of the former matrimonial home – no appearance for the wife – wife to pay the costs of the estate out of her share of the net proceeds of sale.

Family Law Act 1975 (Cth)

FIRST NAMED APPLICANT: Mr Elliott (Deceased)

SECOND NAMED APPLICANT: Mr Yale

RESPONDENT: Ms Elliott

FILE NUMBER: MLC 6363 of 2012

DATE DELIVERED: 6 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 August 2013

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND NAMED APPLICANTS: Mr Croxford

SOLICITOR FOR THE FIRST AND SECOND NAMED APPLICANTS: Croxford Partners

COUNSEL FOR THE RESPONDENT No appearance

SOLICITOR FOR THE RESPONDENT: Voitin Lawyers

Orders

IT IS ORDERED THAT

1. The wife pay the costs of the Estate of Mr Elliott fixed in the sum of $1,200 to be paid to the Estate out of the wife’s share of the net proceeds of sale of the property at B Street, Suburb C in the State of Victoria.

2. The Amended Application in a Case filed 5 August 2013 be otherwise dismissed and the matter removed from the list of pending cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elliott & Elliott 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 MELBOURNE

FILE NUMBER: MLC 6363 of 2012

Mr Elliott (Deceased)

First Named Applicant

And

Mr Yale

Second Named Applicant

And

Ms Elliott

Respondent

REASONS

1. The application before me today is the Amended Application in a Case filed by the Executor of the Estate of the husband, Mr Elliott. It was filed on 5 August 2013.  I made orders in this case for final property settlement on 19 November 2012, which included an order for the sale of what had been the former matrimonial home.  There were some difficulties in relation to that sale and further orders were made on 4 June 2013 to give effect to the earlier orders providing for the sale of the property.  The application before me today arises as a result of an unsuccessful auction of the property on 27 July 2013. 

2. The only bid on that day was a vendor bid.  The property was then placed on the market for private sale for $689,000, although the parties had previously agreed that the reserve price would be $680,000.  On 5 August, there was an offer made by the only prospective purchaser of the property for $675,000.  The wife would not agree to sign the contract, as a result of which the wife’s solicitors were put on notice that an application would be filed shortly before lunchtime on 5 August 2013 and shortly after lunchtime, the application was filed and served upon the wife’s solicitors by email at approximately 3.30 pm that day.

3. A phone call was received from Mr Goddard, who acts on behalf of the wife, at approximately 4.00 pm indicating that the wife would sign the contract on the basis that the proceedings would be discontinued. Mr Croxford, who appears on behalf of the Estate, indicated that he would be seeking his costs of that application.  There is no appearance on behalf of the wife today and the wife has been called and does not appear.  Mr Croxford seeks his client’s costs in the sum of $1,200.  He also raises the possibility that there may be issues with respect to the wife vacating the property and sought in the alternative that I either adjourn the application for a mention on a date before me in approximately 60 days, which is the term of the contract, or reserve liberty to apply at short notice with respect to the settlement of the sale of the property.

4. The general rule is that each party to proceedings in this Court should bear his or her own costs. That general rule is subject to section 117(2) of the Family Law Act 1975 (Cth) which provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may make such order as to costs as it considers just. Section 117(2)(a) sets out the matters the Court must have regard to in determining what, if any, orders should be made for costs insofar as they are relevant. The weight to be given to those matters is at the discretion of the Court. The Family Law Rules 2004 (Cth) provide that the Court may order that a party is entitled to costs of a specific amount as assessed, to be calculated in accordance with the methods stated in the order, or for part of a case, or part of an amount being assessed in accordance with Schedule 3.

5. In this case, it is clear from the orders that the Estate will receive 35 per cent of the net proceeds of sale.  The contract has now been signed for the sum of $675,000, and I am told by Mr Croxford that there is a mortgage, which is increasing with the passage of time, of approximately $240,000.  Pursuant to the orders, the wife is to receive 65 per cent of the net proceeds of sale.

6. In this case, the conduct of the parties to the proceedings is not of particular relevance, save and except that the wife has chosen not to respond to these proceedings and, to that extent, the application for costs could be said to be unopposed.  However, perhaps of greater significance in this case is the fact that it is the wife’s failure to sign the contract of sale in circumstances which would appear, in the absence of any possible purchases for the property, to be somewhat unreasonable and have caused the issue of these proceedings and these costs to be incurred.

7. In all of the circumstances, I consider that it is appropriate in this case to make an order for costs.  I am satisfied that the sum of $1,200 is an appropriate sum.  I do, however, propose to make that order for costs, rather than payable immediately, payable out of the wife’s share of the proceeds of sale once that sale is completed. 

8. I am not of a view that I should adjourn the matter for mention before me.  Hopefully the matter will proceed in an orderly fashion, the wife will sign whatever further documents she is required to sign and she will vacate the property as she is required to do at settlement.  If she does not, it is always open to the Estate, and clearly there would be possible cost ramifications to the wife in the event that that was necessary, to issue a further application seeking orders to give effect to the sale of that property. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 August 2013.

Associate: 

Date:  26 May 2014