Falls and Falls and Ors

[2010] FamCA 207

FAMILY COURT OF AUSTRALIA

FALLS & FALLS AND ORS [2010] FamCA 207

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Falls

FIRST RESPONDENT: Ms Falls

SECOND RESPONDENT: Mr Pattow

THIRD RESPONDENT: Mr Cordas

FILE NUMBER: MLC 6406 of 2009

DATE DELIVERED: 2 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Kennedy Wisewoulds

COUNSEL FOR THE RESPONDENTS: Mr Crowther

SOLICITOR FOR THE RESPONDENTS: Hayes & Associates

Orders

1. That all interim applications are adjourned to the Judicial Duty List at 10.00am on 20 April 2010.

2. That the wife pay the husband’s costs of $2300 thrown away this day by 4.00pm on 6 April 2010.

3. That all parties have liberty to apply in the meantime.

4. That the reasons this day be transcribed.

5. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

6. That the solicitor for the husband engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

7. That the wife and the second and third respondent file and serve any material upon which they intend to rely for the return date hearing by 4.00pm on 26 March 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6406 of 2009

MR FALLS

Applicant

And

MS FALLS

First Respondent

and

MR PATTOW

Second Respondent

and

MR CORDAS

Third Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife, and second and third respondents for an adjournment of proceedings in the judicial duty list.  To their credit, the parties have come up with an interim solution in respect of one of two properties but not in respect of the other.  It is fair to say that this application has done a 180 degree turn today because there are now new indications by the second and third respondents that they want to keep the particular property in dispute.  There are significant disputes on the facts in relation to contributions. 

2. The two reasons why it is sought to adjourn the proceedings today are that the second and third respondents want to keep the property and, more importantly, the wife wants to call evidence of her medical condition such that the property should not be sold on an interim basis.

3. It is a dilemma for this court when proceedings were adjourned on 19 November to today for the very purpose of this hearing.  Mr Crowther, the solicitor for the wife and the two other respondents has indicated that the case has taken a different turn because on 19 February, the husband filed an amended initiating application seeking different orders to that which had been previously put before the court. 

4. It was always a contentious issue as to what was to happen to these two properties.  There does not seem to be anything new in the application such that it would require an enormous amount of work by the respondents.

5. The affidavit of the husband, albeit only filed on 25 February, and served last Friday, seems to more or less update material that had already been filed in October last year and to which the wife responded in November.

6. Having regard to the difficulties that I would have in trying to work out what is an appropriate interim order, this is a case that ought to be adjourned.  The parties, however, have to take into account, and more so the wife and the two respondents, that adjourning this proceeding is effectively delaying an outcome for them.  In those circumstances, I will adjourn the proceedings but on the basis that the wife, who has sought the application for the adjournment, pays the husband’s costs.

7. The quantum of the costs is in dispute not the fact that there is an entitlement to costs. I therefore do not need to look at the issues in s 117. There is a dispute as to the quantum in that counsel has asked for $2500 for her brief fee and $1500 for the solicitor’s costs thrown away determined according to a cost agreement. The scale costs, under the Family Law Rules 2004, are $192.90 per hour for a solicitor and the maximum amount for counsel would be approximately $900. The scale is simply a guide that should be used in most circumstances but as has been said in a number of cases in relation to indemnity costs, where there is a good reason for the court to depart from the scale, it should do so.

8. The cases associated with indemnity costs are not closed.  In circumstances where the question of an adjournment was only raised yesterday and counsel was already briefed at that stage, this is a case where I can go beyond the scale and order indemnity costs.  The quantum of the costs, however, is still a matter of discretion.  Clearly the fees are on a daily basis and if the brief has been delivered then the husband will no doubt have to pay that. In the circumstances, however, the quantum of fees is a matter of his choice.  I propose to exercise my discretion and take a somewhat unusual approach and fix the costs of counsel at $1500 and $800 for the solicitor, a total of $2300.

9. It concerns me in this case that there has already been a costs order made against the wife, the sum of which was to be paid within the 30 days and that has now been outstanding for two months.  I propose to order that the $2300 be paid within 30 days as well.  Insofar as it is not paid, it may have some impact, depending on what application the husband makes, on whether the wife is able to proceed with her application for orders on the next occasion.  I am going to adjourn the proceedings to 20 April 2010 in the judicial duty list at 10 am.

RECORDED  :  NOT TRANSCRIBED  

1. The 26^th of March is a Friday so if the wife and the second and third respondents file and serve any further material upon which they relied by 4 o’clock on 26 March.

RECORDED  :  NOT TRANSCRIBED 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2010