HIRSCHFIELD & HIRSCHFIELD

[2012] FamCA 1066

FAMILY COURT OF AUSTRALIA

HIRSCHFIELD & HIRSCHFIELD [2012] FamCA 1066

FAMILY LAW – Registrar appointed to sign documents to give effect to Orders

APPLICANT: Mr Hirschfield

RESPONDENT: Ms Hirschfield

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2154 of 2005

DATE DELIVERED: 22 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 5 October, 19 October, 22 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

So, the orders that I propose are as follows:

1. That the need for service on the wife of the husband’s Application in a Case filed 14 August 2012 is hereby dispensed with.

2. That paragraph 5 of the Orders of Monteith J made 22 June 2007 shall be and is hereby discharged.

3. That a Registrar of the Family Court of Australia is to be appointed, pursuant to s 106A of the Family Law Act1975, to sign all or any documents required by the wife, including but not limited to a transfer of land, to give effect to paragraph 4 of the Orders of 16 August 2006 in relation to the property known as B Street, Suburb C in the State of Victoria being the land in Certificate of Title Volume … Folio ...

4. That the husband’s Application in a Case filed 14 August 2012 shall otherwise be dismissed.

5. That the Reasons for Judgment given by me this day shall be transcribed and retained on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hirschfield & Hirschfield 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: MLF 2154 of 2005

Mr Hirschfield

Applicant

And

Mr Hirschfield

Respondent

REASONS FOR JUDGMENT

1. On 14 August this year, Mr Hirschfield filed an ex parte application in a case with a supporting affidavit seeking dispensation of service on his former wife and that a registrar sign documents on her behalf to transfer to him a property at B Street, Suburb C. 

2. Mr Hirschfield is 93 years old, and this is the third time that this application has been before me.  Between having heard from a legal representative on his behalf on the first day, 5 October 2012, reading his affidavit filed with his application, hearing his oral evidence on 5 October 2012, making an order that day for solicitors Berger Kordos to produce certain records to the court, which they did, and an adjournment that day with a subsequent adjournment on 19 October 2012, for Mr Hirschfield to produce more records, this is what can be established. 

3. First, final consent orders were made by me on 16 August 2006.  Paragraph 4 of those orders provide for the wife to transfer this particular property to the husband, and each party was to withdraw caveats over the property.  Next, that order was stayed on 22 June 2007, by Monteith J.  His Honour ordered at paragraph 4:

   …that the husband pay the wife’s solicitors Berger Kordos all her legal costs, fees, and disbursements incurred with them on an indemnity cost basis

   which, having regard to the material provided to the court, were fixed at $82,419.92. 

4. His Honour’s orders then provided, in paragraph 5, that by way of security for the payment of the costs just ordered, that paragraph 4 of my orders of 16 August 2006 be stayed, and effectively that in the event that the husband did not pay the total amount of costs within 30 days, then the wife was to have liberty to sell the property now in question and the proceeds were to be applied to the expenses of sale, the outstanding costs, and then the balance paid to the husband.

5. Mr Hirschfield swears, and he is adamant, that he has paid the monies outstanding to Berger Kordos by way of the costs made by Monteith J. 

6. On 5 October 2012, the firm of Berger Kordos forwarded relevant ledger details to the Court.  Those details supported that a total of $71,052.24 was paid in three payments as follows:  a sum of $33,869.92 on 20 July 2007;  a sum of $29,500 on 11 February 2009;  and a sum of $7682.32 on 11 March 2009.

7. What is clear on the face of the ledger documents is as follows.  First, the $33,000-odd payment was “part payment of costs as per order of Monteith J.”  Secondly, the $29,500 was “payment by the husband pursuant to orders”, although which orders were not specified.  And thirdly, the sum of $7682.32 was “payment of costs and interest pursuant to the orders made on 27 February 2009.”

8. I have looked at orders made by Mushin J on 27 February 2009.  His Honour ordered that the husband pay the wife’s costs of $7000 with interest of $682.32, that is, a total of $7682.32.  The transcript of the proceedings of that day is on the Court file.  The transcript shows that the orders pertained to proceedings to enforce the outstanding costs order of Monteith J. 

9. The first question for me today is whether or not to dispense with service.  I accept the affidavit material and oral evidence of Mr Hirschfield, that there have been many years since he has seen the wife and since she has been in Australia, and although he believes she is in Israel, he has no knowledge at all as to where she resides and no way of ascertaining her current whereabouts.

10. So far as the ordered costs are concerned, I need to be satisfied that they have been paid in full.  I have had to piece that evidence together, but I am able to find that they have been paid in full, and I make that finding for the following reasons. 

11. First, the transcript and orders of Mushin J’s proceedings on 27 February 2009 appear to deal only with costs and interest in Berger Kordos’ favour.  That is, although they had sought to enforce the orders for costs, there is no reference at all, either in the orders or the transcript, to outstanding costs at that point.

12. Secondly, when Berger Kordos produced their ledgers to the Court on 5 October 2012, they certainly gave no indication and made no claim of any sort whatsoever, to suggest that costs remained outstanding.  It appears that they have brought no proceedings in that respect, and I note that some years have elapsed. 

13. I note too that in a letter from Berger Kordos to the husband’s solicitor on 13 March 2009, a document that I have found amongst the documents that Berger Kordos sent to court, the letter notes that Berger Kordos had received the husband’s cheque for $7682.32, obviously the amount that he was ordered to pay by Mushin J in February 2009.

14. The letter concludes:

    We confirm that your client’s payment of the costs due finalises all extant issues between the parties.

15. That appears to be a clear and definitive statement. 

16. Otherwise, Mr Hirschfield has produced various documents and parts of documents.  They certainly suggest that there has been a payment of many sums to Berger Kordos and to other lawyers for the wife, and that there were substantial sums already held on trust that were used towards the wife’s costs.  His snippets of documents in themselves could not satisfy me of payment of the $82,000-odd sum in full, but combined with the material I have just referred to, I am satisfied that the only reasonable inference is that the costs as ordered by Monteith J on 22 June 2007 have indeed been paid by Mr Hirschfield.

17. I note that there appears to be remaining caveats over the title to this particular relevant property.  That is something with which Mr Hirschfield will in due course be required to deal, but that’s not something that I can clarify further today.

18. The parties who have the caveats have not been notified of these proceedings, and in any event there is a proper procedure in relation to those caveats that will be required to be undertaken.

19. For the purposes of this application though, I am satisfied that a Registrar should sign documents on behalf of the wife so that the steps can be undertaken towards having B Street, Suburb C transferred into the husband’s name.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 22 November 2012

Associate: 

Date:  22 November 2012