Esselbrugge and Esselbrugge and Anor
[2019] FamCA 935
•6 December 2019
FAMILY COURT OF AUSTRALIA
| ESSELBRUGGE & ESSELBRUGGE AND ANOR | [2019] FamCA 935 |
| FAMILY LAW – COSTS – Where the second respondents sought an order for costs after the parties were unable to agree on consent orders for a pleading regime –Where the husband has not complied with orders to pay the wife spousal maintenance – Where the wife’s spousal maintenance is not being paid in large part because of the second respondents’ refusal to loan any more money to the husband – Where the wife declined to file consent orders until the husband paid her spousal maintenance – Where s 117(2A) of the Family Law Act 1975 (Cth) applied – Where on the balance the circumstances do not justify the making of an order for costs – Second respondents’ application for costs dismissed. |
| Family Law Act 1975 (Cth) s 117 |
| Esselbrugge & Esselbruggeand Anor [2019] FamCA 431 |
| APPLICANT: | Ms Esselbrugge |
| FIRST RESPONDENT: | Mr Esselbrugge |
| SECOND RESPONDENTS: | Mr B Esselbrugge (Snr) and Ms D Esselbrugge |
| FILE NUMBER: | CSC | 619 | of | 2018 |
| DATE DELIVERED: | 6 December 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 16 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Wilson QC |
| SOLICITORS FOR THE APPLICANT: | Reaston Drummond Law |
| SOLICITORS FOR THE FIRST RESPONDENT: | Hirst & Co |
| SOLICITORS FOR THE SECOND RESPONDENTS: | Simonidis Steel Lawyers |
Orders
The second respondents’ application for costs is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esselbrugge & Esselbrugge and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 619 of 2018
| MS ESSELBRUGGE |
Applicant
And
| MR ESSELBRUGGE |
First Respondent
And
MR B ESSELBRUGGE (SNR) and MS D ESSELBRUGGE
Second Respondents
REASONS FOR JUDGMENT
INTRODUCTION
On 5 July 2019, I disposed of competing applications for interim relief between the several parties to these proceedings, which related to summary dismissal and spouse maintenance. In the reasons which were then published,[1] at [86], I said:
86. As I understand it, the parties are agreed that, in the event that the summary dismissal application did not succeed, then the next step should be for there to be a pleadings regime embarked upon, in relation to the wife’s claims against the second respondents. Such a regime should enable the present lack in specificity to either be cured, or if it is not, then the weaknesses of the wife’s case will be more starkly exposed. In the latter event, the second respondents foreshadowed a further application to summarily dismiss the wife’s claim. If the parties are unable to agree a pleading regime, then I propose that any party has liberty to bring the matter back on before me, in order that the timetable may be imposed.
[1]Esselbrugge & Esselbruggeand Anor [2019] FamCA 431.
On 1 October 2019, the solicitors for the second respondents exercised that liberty to apply, and sought that the matter to be listed as “[t]he parties have been unable to agree on such a [pleadings] regime...”[2]
[2] Letter from Simonidis Steel Lawyers to Associate of Justice Tree, 1 October 2019.
The matter was then listed before me on 16 October 2019. However on that day, the solicitors for the wife filed a Statement of Claim on her behalf, and in due course, consent orders for the continuation of the pleadings regime were sought and pronounced. However the solicitor for the second respondent sought an order for costs, in the sum of $744.55, save that “[it] be paid from settlement funds received by the [wife] at the conclusion of this matter.”[3]
[3] Second Respondent’s Affidavit filed 15 October 2019, paragraph 10.
That application was opposed by the wife.
RELEVANT STATUTORY PROVISIONS
Section 117 of the Family Law Act 1975 (Cth) (the “Act”) relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118 each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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 answer 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.
…
EVALUATION
By reference to the relevant matters in s 117(2A) of the Act, I observe as follows.
I do not have up-to-date financial information for the husband and the wife, and have no financial information in relation to the second respondents. However importantly, it seems uncontentious that, despite my having ordered on 5 July 2019 that the husband ought pay the wife $700.00 per week by way of spouse maintenance, he has not paid anything to her. According to correspondence in evidence before me, that is because of two things; firstly that he has been unable to sell a boat which is said to be worth about $40,000.00, and secondly, because the second respondents, who are his parents, have now refused to increase loans to him to enable the continued payment of further spouse maintenance.
In large part, the previous spouse maintenance which the husband had been paying to the wife had been funded by him borrowing from the second respondents. At [33] of my 5 July 2019 reasons, I said as follows:
33. Interestingly, the husband does not depose in his affidavit to an inability to continue to increase the loan to his parents. Rather, what he does instead, is to annexe correspondence from his solicitors to the wife’s solicitors, in which it was said:
In these circumstances we are instructed that our client is unable to continue to pay your client the amount of $700.00 per week beyond 7 June 2019 (being the expiration of his obligations under the order of 7 December 2018), and we provide notice that he is unable to do so…
Perhaps in anticipation of that, one of the second respondents, in his capacity as a director of a related company, advised the husband that “H Pty Ltd can no longer offer you an ever-expanding loan facility, in particular we will not be lending you money to pay any spousal maintenance.”[4] Therefore although the solicitor for the second respondents in his submissions said that his client had no connection with the failure of the husband to pay spouse maintenance, which led to the wife’s asserted impecuniosity, leading to her inability to pay legal fees (and hence impeding her pleading being prepared), upon analysis, that is not correct. The connection is shown by the letter of 3 August 2018. The fact that the needs of the wife are not being met by the payment of spouse maintenance is in large part because of the second respondent’s refusal to loan their son any further monies.
[4] Letter from Mr B Esselbrugge to Mr Esselbrugge, 3 August 2018.
No party appears to be in receipt of legal aid.
The second respondents contend that the wife failed to agree to a regime of pleadings, seemingly first proposed on 17 July 2019, and again on 24 July 2019. Further, on 9 August 2019 the husband’s solicitor forwarded to the wife a proposed consent order signed by the husband and the second respondents, which established a timetable for the delivery of a further affidavit and a Statement of Facts, Issues and Contentions, and provided for either a Response, or a further application to remove parties, to be filed within 28 days thereafter. On 22 August 2019 the wife’s solicitors responded in part saying “[o]ur client is reluctant for us to file the consent orders until confirmation is received your client will start complying with the order requiring him to pay spousal maintenance.”[5] No further progress towards agreeing a timetable was able to be made, and it was only the re-listing of the matter which appears to have precipitated the delivery of the Statement of Claim on the day of the hearing. I am satisfied that the wife’s failure to agree was unreasonable.
[5] Email from Reaston Drummond Law to Hirst & Co, 22 August 2019.
Queens Counsel for the wife contended that there was a further matter which was relevant to the exercise of the discretion as to costs, namely that although the wife was successful in relation to her application for spouse maintenance, and in resisting the second respondents’ application for summary dismissal, nonetheless she did not then seek an order for costs. Whilst that is true, I give that consideration little weight.
Weighing those matters in the balance does not persuade me that there are circumstances which justify the making of an order for costs in this case. The second respondents’ application for costs is therefore dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 6 December 2019.
Associate:
Date: 6 December 2019
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