FAYEH & FAYEH

[2009] FamCA 1119

FAMILY COURT OF AUSTRALIA

FAYEH & FAYEH [2009] FamCA 1119

FAMILY LAW – APPEAL – from a decision of a Registrar – leave

Family Law Act 1975 (Cth) s 117(2)(a)

APPLICANT: Mr Fayeh

RESPONDENT: Ms Fayeh

FILE NUMBER: SYC 6932 of 2008

DATE DELIVERED: 12 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 12 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

SOLICITOR FOR THE APPLICANT: N A Lawyers

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

1. That by consent, the Husband is granted leave to issue a subpoena addressed to the Commonwealth Bank of Australia for it to produce the Wife’s records of account and records of transactions for the period from the start of cohabitation to the present date.

2. That all parties are granted leave to inspect relevant documents produced by the Commonwealth Bank of Australia once the subpoena has been issued which is limited to the production of relevant documents.

3. The letter of instruction to the single expert Mr G from the Wife is to be in the form of the draft letter of the 23 July 2009 and at the same time as the Wife’s letter is sent, the Husband shall have leave to send a letter of instruction to Mr G containing his claims which are said to justify the practices which in the letter  of 23 July 2009 the Wife infers should be investigated, and a joint letter from both parties’ solicitors is to be sent making it clear to the joint expert that he is a Court appointed expert and that neither party has engaged him.

4. The Husband to pay the Wife costs assessed at $750.00 within one month of the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6932 of 2009

MR FAYEH

Applicant

And

MS FAYEH

Respondent

REASONS FOR JUDGMENT  

1. In this matter there have been two applications before me.  Both of them have resulted in slight changes from the orders that were made by Registrar Campbell.  The matter before me is an application to review Registrar Campbell’s orders.  In each matter the solution to the issues between the parties after the orders were made was obvious.  In relation to the subpoena, the registrar struck out a subpoena to the Commonwealth Bank issued by the husband to the wife because the subpoena sought records which were both for the period after cohabitation commenced and also for the period before that.

2. It is quite clear that it should have been available to the registrar to grant leave to issue a subpoena restricted to the cohabitation period.  Rather than the husband’s solicitors contacting the other side, whose argument was that the thing that was wrong with the subpoena was that it related to a period outside the cohabitation period – rather than appeal, the solicitor for the husband could have rung the solicitor up and said, “Would you agree an amendment of the subpoena and the issue of a new subpoena?” and there could have been an agreement between them about that which could have gone before a registrar without undue delay or cost.

3. Instead in a high-handed way the solicitor for the husband appealed, only to get the same result with the wife’s counsel coming here to say, “We would agree to a subpoena that was limited to the period from the start of cohabitation to date.”  In relation to the other matter that was determined by Registrar Campbell, it related to the appointment of an accountancy expert to value a company or companies, and other business enterprises including a trust.  The wife wished to send a letter which requested the accountant to engage in a forensic exercise before doing that valuation on the grounds that she alleged that some of the husband’s practices, or some of the books of the various enterprises, may not allow a true appreciation of the value of the company and she pointed out the areas that concerned her.

4. The husband objected to that before the registrar, saying that the registrar should only permit a joint expert to do a valuation based upon the books and that any issue of the books reflecting the true value of the enterprises incorrectly ought to be a matter for a second accountant, which in those circumstances of course the valuation of the first accountant would be useless, if it was found that during the forensic exercise that there was some falsification or distortion of the real situation.

5. Rather than simply contacting the solicitor for the other side, the husband’s solicitor appealed from Registrar Campbell’s decision, who when Registrar Campbell – in my view correctly – must have come to the conclusion that in order to do a proper valuation, a forensic exercise ought to be done, rather than take the risk of valuing the entities incorrectly because their books do not correctly reflect the true situation.  Again, what could have been done is that the solicitor for the husband could have requested the solicitor for the wife to agree that to be included in a letter to the valuer should be also any justification for the practices by the husband, or that a second letter could be sent to the court expert in which the husband attempts to justify the practices that the wife has complained of, or has regarded as suspicious.

6. That was not done.  As a result the matter has come before me and I have permitted the husband to add such a letter to the material given to the accountant, after having come to the conclusion that the letter that the wife wished to send to the accountant was perfectly appropriate.  One does not know whether the wife’s solicitor would have agreed to any request about this letter.  The problem that I have with that is that does not excuse the solicitor for the husband for failing to find out, and therefore failing to take a step which may have avoided the other aspect of the appeal, which to me has largely been a waste of time because common sense dictated the results of both of the issues that were the subject of the appeal.

7. In the circumstances, although I have altered the orders in effect of the registrar, the wife now seeks costs.  The usual considerations apply:  firstly, that the principal thrust of the Act is that parties should bear their own costs unless there are circumstances which justify the court for making an order for costs.  In determining whether there are circumstances, I must consider the provisions of section 117(2)(a) of the Act.  The first is the financial circumstances of each parties to the proceedings.  These are financial proceedings.  Their financial circumstances are currently not known but in my view in the particular circumstances of this case, whatever their circumstances might be, it seems to be appropriate, because there must be some money available as between them for there to be property proceedings. 

8. And no matter how bad one party is off compared to the other party, that is likely to change to a substantial degree on final orders being made.  In those circumstances the financial circumstances of each of the parties at this stage is irrelevant and should not affect a costs order.  The next issue is whether any party to the proceedings is in receipt of Legal Aid.  The answer to that is, no, these are property proceedings.  The next thing relates to the conduct of the parties to the proceedings generally, although there are specific aspects which the Act refers to.

9. I have referred to the conduct that I think is of importance in considering whether or not I make a costs order.  The conduct I am talking about is the lodgement of appeals against minor matters which are before a registrar without having tried to resolve the matter with the opposition.  It is my strongly held view that the court should take a stance about this type of behaviour.  It is habitual in this court, and in my view is responsible for a large proportion of the time taken up in the duty list;  time which is in many of the instances, together with costs, which could have been avoided by simple, practical common sense attempts to resolve the matter by speaking to the solicitor on the other side.

10. I am of the view that costs orders seem to be the only realistic way of getting solicitors to speak to the other side before they lodge appeals, especially appeals from registrars in extraordinarily minor matters.  In the circumstances this, in my view of this particular aspect of conduct, creates a very, very strong reason to order costs against the appellant.  The next element of section 117(2)(a) is whether the proceedings were necessitated by any failure of a party to comply with previous orders of the court.  There is no suggestion of that here.

11. The next aspect is whether a party to the proceedings has been wholly unsuccessful.  I would not say that the husband has been wholly unsuccessful.  I think that they have had success.  My complaint is that they could have had the same degree of success had they spoken to the solicitor – to the other side and obtained that solicitor’s agreement, and if they would not have obtained the solicitor’s agreement they would have been in a position where I would have taken as tough a stance as I have about the solicitor for the husband about the solicitor for the wife and would be highly likely to have ordered costs against the wife.

12. The next consideration that I make is whether either party to the proceedings made an offer in writing, etcetera.  This is a significant element.  In circumstances like this to simply telephone or write to the solicitor on the other side in an attempt to resolve the matter would have made it clear one way or the other and should have resolved the matter.  The failure to do that was in effect much the same as a failure to make an order and of course the failure to make an offer put the other side in a position where it cannot be said about them that they rejected it.

13. Any other matters the court considers relevant?  There are none.  I am of the view on balance that this is a matter which justifies the court in making an order for costs against the husband.  A small order is warranted in the hope that the message will get through to solicitors that they should speak to one another at least.

14. The wife seeks a lump sum of $3500.  One of the things that must be said about this matter is that once the appeal was lodged, the wife’s solicitor could have rung the husband’s solicitor too and resolved the matter.  I do not think that the obligation to do that was as great as that upon the husband’s solicitors in the circumstances, because the appeal was already lodged;  some costs would have been incurred that ought to have been unnecessary.  Counsel is here for the wife, instructed by a solicitor.       

15. It appears to me that counsel of Mr Tockar senior I think would be entitled to charge at least $2500 a day.  He is asking for $3000.  His instructing solicitor would probably be entitled to $350 a day at least, and both would have had to put aside the whole day in view of the fact that one would not know when the matter could get on.  Nevertheless, as I have said, I do not think that that is an appropriate quantum for costs.  I am of the view that $750 is.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:

Date: 25 November 2009