Gustav and Gustav

[2010] FamCA 208

FAMILY COURT OF AUSTRALIA

GUSTAV & GUSTAV [2010] FamCA 208

FAMILY LAW – CASE MANAGEMENT – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Gustav

RESPONDENT: Mr Gustav

FILE NUMBER: MLC 3051 of 2009

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crofts

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Nedovic & Co

Orders

1. That the application of the wife filed 19 February 2010 and the response of the husband (filed by leave) on 24 February 2010 be adjourned part-heard before me at 10.00am on 20 April 2010.

2. That the wife file and serve any further affidavit material upon which she intends to rely by 4.00pm on 12 March 2010.

3. That the husband file and serve any affidavit in reply to that of the wife by 4.00pm on 8 April 2010.

4. That the wife pay to the husband $1750 by way of costs thrown away this day, such payment to be stayed but to be part of any payment to be adjusted at property settlement.

5. That the reasons for judgment this day be transcribed and be placed on the court file.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the husband immediately pay or cause to be paid all insurance and registration on the Toyota Landcruiser Reg No … in the wife’s possession and provide evidence of payment and a valid registration sticker to the wife’s solicitors by not later than 10.00am on 28 February 2010 (registration) and 9 April 2010 (insurance).

3. That the husband forthwith instruct accountants to prepare income tax returns for the year ending 30 June 2009 for the following entities and himself and financial report for the following entities for the periods to 30 June 2009 and 31 December 2009.  Truce copies of such accounts and returns to be delivered to the wife’s solicitors by not later than 15 April 2010 or such later date as the parties may agree in writing.  Entities – RS Superannuation Fund, Gustav Family Trust, RS Pty Ltd, the B Unit Trust, C Company Pty Ltd.

AND THE COURT NOTES that in respect of Order 7 above, the husband says that the payment has been made in respect of the registration and instructions have been given to the accountant in respect of the matters set out in paragraph 8 above.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3051 of 2009

MS GUSTAV

Applicant

And

MR GUSTAV

Respondent

REASONS FOR JUDGMENT

1. An application has been filed by the wife for a variety of orders.  Two out of the four orders sought could not be made on the basis of the evidence before me today.  That is not to say that the wife concedes that, but it is clear that, if I was to rule on the basis of the current evidence, it is lacking. 

2. To have the parties have to come back on another occasion with a fresh application seems a bit silly having regard to the fact that delaying their ultimate trial is not in anyone’s interests, nor is the question of having to expend further costs when, in reality, the application is to seek some form of litigation funding.  Dr Ingleby, I think rather sensibly, says that there is no real prejudice to the husband because of the fact that costs can cure what he has lost today. 

3. This is a case in which, I think, it makes sense to adjourn the proceedings to allow the wife to call proper evidence which would support one or more of what orders she is seeking.  It is argued by Mr Crofts on behalf of the wife that the husband had to be here today and incur those costs because, on any view, two of the four issues sought related to the payment of car registration expenses and for the completion of taxation returns which are required for the substantive property proceedings anyway.  Both of those matters may be described as minimal in the scheme of things, but the wife had pursued both of those issues and was met with a stony silence.  Had the matter been properly prepared with all of the evidence that would have enabled me to deal with the substantive issues relating to the litigation funding and the exclusive occupancy of the home, the whole matter could have been dealt with today.  What has occurred is that the husband is now going to incur further costs, notwithstanding what I have just said about the two minor issues. 

4. In the circumstances, this is a case which justifies a departure from the rule that each party pays their own costs.  It is clear under s 117 when making an order for costs that the court has to look at the provisions of s 117(2A).  Whilst the wife is clearly in some financial trouble, having regard to the very reason she is here, ultimately there is a pool in excess of $1 million and in the future, her financial circumstances may very well be better than what they are today.  The husband has the bulk of the assets, to use the words of the wife, and therefore his financial position is reasonably comfortable at this point in time.  The real reason why the parties have not been able to resolve matters or have them resolved today is the fact that the evidence is not being presented in respect of the two major matters. 

5. In those circumstances, the fault has fallen on the wife and this is a case where the order for costs justifies a payment of $1,750 being counsel’s fee for the husband thrown away for the day.  Counsel for the husband very sensibly says that that can be paid from the property settlement, having regard to the wife’s financial circumstances as I have indicated. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2010