K (formerly v) and v

FAMILY COURT OF AUSTRALIA

K & V

[2008] FamCA 399

FAMILY LAW – COSTS - Between parties

Family Law Act 1975 (Cth)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123
Penfold and Penfold (1980) 144 CLR 311

APPLICANT:

Ms K

RESPONDENT:

Mr V

FILE NUMBER:

SYF

5441

2003

DATE DELIVERED:

10 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

21 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Messner

SOLICITOR FOR THE APPLICANT:

Vizzone Ruggero & Associates

COUNSEL FOR THE RESPONDENT:

Mr Thomas

SOLICITOR FOR THE RESPONDENT:

Bayside Soliicitors

Orders

The Husband pay the costs of the Wife of an incidental to the hearing of the applications for final property settlement listed before the Judicial Registrar on 23, 24 and 25 May 2005.
The Husband pay the costs of the Wife of and incidental to the hearing before Boland J on 14 October 2005 and 7 and 8 November 2005.
The Husband pay the costs of the Wife of and incidental to the hearing before Cohen J on 10 February 2006.
The Husband pay the costs of the Wife of and incidental to the hearing before Lawrie J on 17 February 2006.
The costs referred to in orders 1, 2, 3 and 4 hereof be paid by the Husband in an amount(s) as agreed upon by the parties within 21 days of the date of these orders and failing such agreement as assessed by a Registrar on a party and party basis.
The Husband pay the costs of the Wife of and incidental to the hearing by me of the applications for costs.
The costs referred to in order 6 hereof be paid by the Husband in an amount as agreed upon by the parties within 21 days of the date of these orders and failing such agreement as assessed by a Registrar on a party and party basis.
The application by the Husband for costs be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5441 of 2003

Ms K

Applicant

And

Mr V

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Before me for hearing are applications for costs. The Applicant is Ms K (formerly V) whom I shall refer to as the Wife. The Respondent is Mr V who I shall refer to as the Husband.
The Wife seeks the following:
1.That the Husband pay the costs of the Wife on a party-party basis:-
1.1    the costs thrown away on 23, 24, 25 March 2005 as a result of the Husband’s withdrawing his consent for the matter to be heard before by the Judicial Registrar
1.2    of proceedings before Boland J on 18, 19, 22 August 14 October and 7 and 8 November 2005
1.3    of proceedings before Cohen J on 10 February 2006.
1,4    of proceedings before Lawrie J on 17 February 2006.
as agreed or in default of agreement as assessed under the Family Law Rules 2004
2The Wife serve upon the Husband within 30 days an itemised costs account
3.The itemised costs account served by the Wife upon the Husband be paid within 90 days from the date of this order
4.The Husband’s application for costs in the proceedings be dismissed.
5.The Husband’s application for costs in respect of his Application – Contravention filed 11 October 2006 be dismissed.
The Husband seeks the following:
1.That the Wife pay the Husband's costs assessed as follows:
1.1    property hearing before Boland J.   $88,017.73
1.2    costs thrown away of the contravention proceedings         $22,707.30
1.3    costs of these proceedings  $23,299.82
Total  $134,024.85
In the alternative
2.That the Wife pay the Husband’s costs on an indemnity basis, as agreed or taxed, of the following hearings:
2.1    before Boland J. on 17, 18, 19, & 22 August 2005; 14 October 2005; 7 and 8 November 2005
2.2    the costs of the contravention proceedings
2.3    the costs of these proceedings.
The amount of evidence I had was voluminous. The Wife swore affidavits on 1 June 2007 and 2 September 2007 and relied upon a further 18 documents. The Husband swore an affidavit on 23 July 2007 to which a number of documents were exhibited. I have considered various judgments and transcript of evidence of prior hearings. I also had written submissions. I had no prior involvement with the case.

BACKGROUND FACTS

The Husband was born in February 1958. The Wife was born in March 1960. The parties were married in March 1981. On 5 May 2003 the parties separated. On 25 July 2005 a Decree Nisi dissolving the marriage was pronounced.
In May 2003 the Wife left the former matrimonial home situate at and known as … (the matrimonial home). Thereafter the Husband had sole occupation of the former matrimonial home until 14 December 2005.
On 3 December 2003 an application was filed by the Wife in which she sought an order for property settlement.
On 7 May 2004 the parties attended a Conciliation Conference. The matter was not resolved.
On 3 June 2004 the Husband made an offer to settle on the basis that he receive 60 per cent of the proceeds of sale of the former matrimonial home and the Wife receive 40 per cent. He also offered a superannuation splitting order in favour of the Wife of $86,859. The Wife did not accept the offer. At this time the parties were in dispute about the value of the former matrimonial home with the Wife asserting that it was worth $2.2 million.
On 14 December 2004 the first property valuation of the former matrimonial home was prepared by BN & Associates. The value was $1.75 million.
On 1 March 2005 a Pre Trial Conference was held and the applications for property settlement were listed for final hearing before a Judicial Registrar for three days commencing on 23 May 2005.
On 5 April 2005 the Wife’s employment was terminated.
On 6 May 2005 the Husband received the proceeds of sale of shares of about $11,000. The Husband alleges that he applied these monies to repayment of a mortgage secured over the former matrimonial home.
On 12 April 2005 a notice pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) was served on the parties on behalf of the St George Bank. The St George Bank had a registered mortgage over the title of the former matrimonial home.
On 12 May 2005 the Wife filed an application in a case seeking spousal maintenance of $150 per week.
On 18 May 2005 a second valuation of the former matrimonial home was prepared by BN & Associates and the value was $1.7 million.
For the purposes of the final hearing listed to commence on 23 May 2005 the Wife filed a summary of argument on 19 May 2005 and the Husband filed a summary of argument on 23 May 2005.
On 23 May 2005, after the parties appeared before the Judicial Registrar, and the Judicial Registrar said that he was available to hear the case, counsel for the Husband stated that the Husband did not consent to the Judicial Registrar hearing the case. As there was no Judge available to hear the applications the hearing dates were vacated. The applications were then listed for final hearing before Boland J on 17, 18, 19 and 22 August 2005.
The Wife contends, and I accept, that she still had to pay the costs of her counsel and solicitor for the hearing before the Judicial Registrar of a total of $12,300.
After the hearing was adjourned the Husband made an offer to settle the financial issues on the basis that he pay $450,000 to the Wife for her share of the former matrimonial home. He also offered a superannuation split of $106,810 in favour of the Wife. The Wife rejected the offer.
On 1 July 2005 the Husband was made redundant from his employment. The Husband later received a total package of $81,616.71. The Husband asserts that he remained unemployed until 5 February 2006.
On 19 July 2005 the Husband deposed that he was unable to afford the mortgage payments in respect of the mortgage secured on the former matrimonial home and he proposed that the property be listed for sale.
On 18 August 2005 the hearing of the applications for final orders commenced before Boland J. At the commencement of the hearing it was agreed that the former matrimonial home had a value of $1.7 million.
In her judgment of 16 December 2005 Boland J said:
1.The parties are in dispute about division of their property at the end of their long term marriage of 22 years. At the commencement of the hearing there was little dispute about the nature of the parties’ assets, or the value of those assets. During the course of the proceedings, evidence was adduced that the wife’s father had transferred to her an interest in a parcel of land in Greece in 2003. The husband asserted that the wife had failed to make a full, frank and complete disclosure of her financial position to the husband and to the Court. The wife also asserted the husband had failed to make a proper disclosure to the Court of his financial position, specifically in respect of funds received by or retained by him post separation.
2.As well as the parties’ assertions about each other in respect of disclosure, they are at issue about the weight to be given to contributions made throughout their cohabitation, particularly in respect of financial and other contributions made by each of their respective families throughout their marriage. The dispute largely centres on the assertions, made on behalf of the wife, about contributions made by her father, who is a builder, to renovations to two properties owned by the parties’ during the course of their marriage.
3.The parties are also at issue as to the appropriate adjustment, if any, to be made under s75(2) of the Family Law Act 1975 (“the Act”).
In her judgment of 16 December 2005 Boland J said that at the conclusion of the evidence the Wife sought orders for the sale of the former matrimonial home essentially by private treaty and that on completion of the sale the proceeds be divided so that she received 60 per cent of the parties’ property and superannuation entitlements. The Wife did not seek a share of the Husband’s superannuation by way of splitting order, but rather that she receive her entitlement from presently available assets. By contrast, the Husband in his outline of case document sought the sale of the former matrimonial home by public auction and on completion of the sale that the proceeds be divided as to 35 per cent to the Wife and 65 per cent to him. He also sought a splitting order under Part VIIIB of the Family Law Act 1975 (Cth) in respect of his superannuation entitlements held in the AMP Superannuation Savings Trust with a base amount of $106,810 being allocated to the Wife.
After the conclusion of the evidence on 22 August 2005 orders were made by consent as follows:
1.That the parties shall confer about the appointment of a single expert to value the wife’s land in […], Greece. In the event the parties are unable to reach agreement about the appointment of a single expert they shall notify my Associate by 4.00 pm on Thursday 25 August 2005 so the matter may be relisted.
2.That the husband shall file and serve by 4.00 pm on 5 September 2005 an affidavit limited to the question of the level of grading of licensed aircraft engineers and shall file relevant evidence of the award.
3.That in the event the wife proposes to call a case in reply she may file and serve an affidavit on or before 3.00 pm on 5 September 2005.
4.That I make orders in accordance with the document entitled Minutes of Order signed by the husband and wife and dated 22 August 2005 a copy of which is attached.

5.Either party may apply to restore to the list on 24 hours notice to the other party and my Associate.

6.The matter is adjourned until 10.00 am on 14 October 2005 unless otherwise notified by my Associate.”

Order 4 of these orders effected a division of some of the parties’ chattels.

During the hearing the Wife admitted that she had an interest in land in Greece. The Husband obtained documents during May 2005 about the Wife’s interest in the Greek land but did not disclose this information to the Wife until she was being cross examined. The Husband subsequently required a proper valuation of this land but then withdrew from the valuation process such that the only evidence of value before the Court was that of the Wife. The land had an insignificant value that was far outweighed by the costs of pursuing the issue. In her judgment Boland J found that the interest in the Greek land was of minimal value namely $1,997. Her Honour said that it was also of significance that the Husband was aware of the Wife’s interest in May 2005, had obtained a translation of the relevant documents but did not disclose these documents until the cross-examination of the Wife. Her Honour found that the Wife’s failure to disclose the transaction in Greece was improper. However, her Honour also found no other evidence to suggest that the Wife has not otherwise made other than a full, frank and complete financial disclosure to the Court.
The hearing was adjourned to 14 October 2005.
In her judgment of 14 October 2005 Boland J said that correspondence disclosed an offer on 15 September 2005 to purchase the former matrimonial home at a sale price of $1.6 million. On 15 September 2005 the Wife’s solicitors advised the Husband’s then solicitors that the Wife wished to accept the offer of $1.6 million. It was rejected by the Husband.
On 16 September 2005 the Husband made a loan application to Liberty Financial seeking $1.2 million. The application stated that the former matrimonial home was worth $1.7 million and that the Husband proposed to rent it out for $1,000 per week. The existing mortgage debt was $600,000.
On 19 September 2005 the selling agent wrote to the Wife as follows:
We write to advise developments and relay our conversation with [the husband] at approx 10:30am Monday 19^th September 2005.
I rang to see where his thoughts were with the offer of $1.6million from Mr. & Mrs. […] and to remind him that we require a written reply prior to 5:00pm today.
[the husband]: “[A], I’ve already told you before my house is for sale at $1.75 million”.
[A]: “Have you put this in writing?”.
[the husband]: “Yes to my solicitor. I’m sick of these people playing games. My house is for sale at $1.75 million.”, and then hung up.
It is very disappointing that [the husband] has once again changed his mind. At our meeting with him on Friday 12^th August 2005 when we discussed the fact that we felt the valuation was too high as it used older sales and the market has gone backwards since then he stated “he would listen to anything over $1.5million”
It would now appear that [the husband] has no intention of selling his house for anything less than $1.75million. If this is the case we suggest he should purchase it himself at that price.
At this time [the husband] has not replied to us in writing. This is disappointing as we are expected to issue written reports continually (often about irrelevant issues) but the same courtesy is not extended to us.
We do not wish to lose these purchasers.
In summary the real estate agents conducting the sale of the former matrimonial home advised the Wife that the Husband would not sell for less than $1.75 million when he previously had indicated that he would listen to anything over $1.5 million.
On 20 September 2005 the Wife’s solicitors wrote to the Husband’s solicitors noting the following:
…Our client has indicated her willingness to accept this offer being cognizant of the following factors:
(a)     The agent from [P Agency] has expressed the view that your client is being obstructive and abusive to the agent and prospective purchasers making the task of selling and marketing the property extremely difficult;
(b)    The husband has deposed in his recent Affidavit of 5 September 2005, that he remains unemployed and that he has had to draw on his line of credit to finance mortgage arrears.
(c)    The risk of foreclosure by St. George Bank;
(d)    The husband’s refusal to permit a “For Sale” sign to be placed at the front of the property;
(e)    Advice from the agent regarding the property market.
On 21 September 2005 the St George Bank wrote to the Wife noting its security was in default and that the full balance of the loan was $142,667.19. On the same day another letter was sent by the Bank noting a further security in default and seeking repayment in full of the amount secured of $203,163.79. A third letter from the Bank of the same date sought repayment in full of $253,357.08. In respect of each borrowing the Bank said:
In the event that you have not, within ten (10) days of the date of this letter, discharged the loan in full or made an acceptable arrangement with the Bank, the matter will be referred to our Solicitors, to commence legal action for the recovery of all monies owed by you to the Bank.
In November 2005 the Husband increased his borrowings on a line of credit to make a payment pursuant to the mortgage to forestall a mortgagee sale.
On 26 September 2005 the then solicitors for the Husband ceased to act.
On 3 October 2005 the Wife received notice from the GIO for outstanding premiums in respect of insurance cover over the former matrimonial home.
On 8 October 2005, the prospective purchaser again wrote to the real estate agents making a conditional offer to purchase the former matrimonial home for $1.6 million subject to a satisfactory contact and building and pest inspections. The prospective purchaser sought a response to the conditional offer by 17 October 2005.
On 14 October 2005 the hearing resumed before Boland J. By the time the hearing resumed the Husband’s former solicitors had filed a Notice of Ceasing to Act and the Husband was represented by Jordan Djundja, solicitor who also instructed Mr Richards of counsel. The Husband did not attend Court on 14 October 2005. An oral application was made on behalf of the Husband for an adjournment but was refused.
On 14 October 2005 counsel for the Wife made an oral application for orders by way of interim or partial property settlement, with the Wife being appointed trustee for sale of the former matrimonial home. Boland J delivered ex tempore reasons for judgment on that day which she later said should be read in conjunction with her reasons for judgment of 16 December 2005.
In her judgment delivered on 14 October 2005 Boland J said:
19.It is clear from the parties’ competing applications that they seek the sale of the home. Neither has on the evidence before me the capacity to purchase the other’s interest in the home.
20.The evidence is that the home is in a poor state of repair. Neither party has the capacity to make the mortgage payments. The balance now due and owing to the bank is $599,188 and the mortgagee has given notice of intention to commence legal proceedings against the parties. Prima facie it appears likely the matrimonial home is uninsured. These all compelling reasons why the home should be sold as soon as possible for the highest price reasonably obtainable.
21.However there is no current evidence of value of the home before me except what the parties themselves agreed in August 2005. The correspondence from the real estate agent gives no indication of the agent’s opinion of the home’s current value, rather the correspondence demonstrates the husband has insisted on a sale price in excess of the agreed value for these proceedings.
22.I find the house should be sold as soon as possible. The parties have consistently been unable to agree about matters involved with this litigation. I find it is highly unlikely they will be able to agree a price at which to sell the home. The bank may exercise its rights unless the home his sold promptly.
23.Mr Richards submitted that I could not be in error if I made an order listing the home for sale by public auction and fixing a method to obtain a reserve price if the parties could not agree. I accept his submission. However such a course will involve the parties in incurring auction expenses, and further delay. They may lose the present prospective purchaser although that purchaser’s offer is conditional upon, inter alia, a building report and on receipt of such report may not proceed given the evidence before me.
24.Mr Johnston indicated the parties had based their value of the matrimonial home on a registered valuer’s valuation. I cannot take judicial notice of a fall in real estate prices in Sydney.
25.I find the most practical and cost effective manner to deal with this application is to stand over the application for one week during which time the wife can have the opportunity to put evidence before me of the current value of the home. Common sense would suggest the valuer previously retained to value the home could conduct such a valuation quickly and inexpensively. I would then be prepared to make an order that the home be sold at the expert’s valuation or above by private treaty for a limited period of time and thereafter by public auction. Failing the filing of satisfactory evidence of valuation within seven days, I propose that the matrimonial home be sold by public auction within four weeks thereafter at an agreed price, or failing agreement within 14 days of these orders that the President for the time being of the Australian Institute of Valuers nominate a valuer at the joint expense of the parties to fix the reserve price.
26.The wife seeks an order that each party immediately receive $100,000 from the proceeds of sale. Both parties have debts including credit card liabilities and in respect of borrowings for these proceedings. This order sought appears entirely sensible in the circumstances of this case.
Her Honour made an order that within seven days the Wife serve a report about the valuation of the former matrimonial home and the hearing was adjourned.

In her judgment of 16 December 2005 Boland J said that on 14 October 2005 submissions were made by each party’s counsel as to the appropriate division of assets pursuant to s 79 of the Family Law Act. On behalf of the Wife it was submitted that the Wife’s contribution based entitlement should be assessed at 55 per cent and the Husband’s entitlement at 45 per cent. On behalf of the Wife it was submitted that a 5 per cent adjustment should be made in her favour under s 75(2) of the Family Law Act based on the Husband’s superior earning capacity. It was submitted that the Wife’s entitlement of 60 per cent should be paid out of presently available assets and that no splitting order should be made. On behalf of the Husband it was submitted that the parties’ contribution based entitlements should be assessed at 55 per cent/45 per cent in favour of the Husband, and that an adjustment, not exceeding 5 per cent, should be made in the Husband’s favour under s 75(2).
On 18 October 2005 a third valuation of the former matrimonial home was prepared by BN & Associates. The former matrimonial home was valued at $1.65 million. The valuers conducted an external inspection only.
The Husband said that in November 2005 he commenced receiving unemployment benefits.
On 7 November 2005 the oral application made on behalf of the Wife on 14 October 2005 came back for further hearing before Boland J. No material has been filed by the Husband in response as was foreshadowed when the matter was adjourned on 14 October 2005. On 7 November 2005 the Husband’s solicitor appeared and advised that a Notice of Ceasing to Act had been filed. The Husband appeared on his own behalf. He sought and was granted leave to oppose the Wife’s oral application that she be appointed trustee for sale. That application had been opposed by his counsel on 14 October 2005. The Husband also made an oral application to amend his final orders sought to provide that the Wife transfer her interest in the matrimonial home to him, and that he pay an unspecified cash sum to the Wife and a split of his superannuation entitlement by way of property settlement. The Wife opposed this late amendment. The mortgage debt secured over the former matrimonial home was $606,017.72. At this time the Husband had additional liabilities of $64,617. The Wife amended her application that she be appointed as trustee for sale of the former matrimonial home to include a price, and that the Husband offer vacant possession of the former matrimonial home.
When the hearing resumed before her Honour on 7 November 2005 an updated report from BN & Associates was tendered on behalf of the Wife. The updated valuation took into account further sales within the matrimonial home’s and surrounding locales. Mr N, noted “our inspection was of an external nature only and our assessment is subject to an internal inspection confirming verbal advice, as given, should it be required”. Mr N valued the former matrimonial home at $1,625,000. In ex tempore reasons for judgment published on 8 November 2005 her Honour found, accepting the evidence of Mr N, that there had been a fall in prices obtainable in the area of the former matrimonial home. Her Honour also found, based on the Husband’s evidence, that there were maintenance problems at the home and that the home required significant maintenance and/or repairs, including repair of a leaking hot water service, and work to be carried out on the swimming pool. Her Honour said that the Husband provided no updating evidence in relation to the value of the former matrimonial home.
In her judgment delivered on 8 November 2005 Boland J made a number of findings. Her Honour said that there was no reason why the Husband should have brought the application “at the heel of the hunt”. He had been aware of the application to the mortgage broker at least since 16 September 2005, but no application was made until 7 November 2005 notwithstanding the matter was adjourned on 14 October 2005. Her Honour said that the Husband’s entire case was conducted on the basis he sought a sale of the former matrimonial home. The Wife had not had any opportunity to test the Husband’s limited evidence save and except the brief cross-examination on the voir dire on the admissibility of the loan application. Her Honour found that the further amendment sought by the Husband to his application for final orders, was one which was impractical given his circumstances. Her Honour said that she maintained her earlier findings that it was appropriate for there to be an interim or partial property settlement which involved the sale of the former matrimonial home. Her Honour was of the view that the parties could not work in co-operation to affect the sale of the former matrimonial home and that the apparent lack of co-operation by the Husband was likely to lead to a mortgagee sale to the detriment of both parties.
On 8 November 2005 Boland J made the following orders:
1.The wife be appointed Trustee for sale of the property situate at […] (Folio Identifier […]) (“the property”) [(the matrimonial home)] at the best price reasonably obtainable by private treaty for a period of two months from the date of these orders and at a minimum selling price of $1,625,000 and if not sold within that period then to sell the property by public auction with a reserve price of $1,625,000.
2.That the husband shall deliver up vacant possession of the property to the wife on or before 5.00 pm on 13 December 2005 and deliver all keys to the home and its appurtenances to the wife’s solicitors by that time.
3.That upon completion of the sale of the property the proceeds of sale shall be distributed in the following order and priority:
3.1    in payment of agent’s fees and commission;
3.2    in payment of legal and or conveyancing costs and expenses;
3.3    in discharge of all monies due and outstanding to St. George Bank Limited pursuant to any mortgage secured over the property;
3.4    in payment to each party or as they may direct the sum of $100,000 provided however the husband shall give notice in writing to each of his former solicitors namely Jordan Djundja and Moira Ryan Partners of the terms of this order;
3.5    the balance then remaining shall be held in an interest bearing account in the joint names of parties pending further order of the Court.
4.The parties or any affected third party shall have liberty to apply on 24 hours notice by arrangement with the Associate to Boland J in respect of implementation of these orders.
5.Judgment in the substantive proceedings is reserved.
On 16 November 2005 the Husband obtained a further Liberty Financial ‘conditional’ loan approval for $1.16 million or 80 per cent of the value of the former matrimonial home.
The Husband did not give vacant possession of the former matrimonial home to the Wife by 13 December 2005 as he was required to do by the orders of 8 November 2005.
On 14 December 2005 the Husband was arrested at the former matrimonial home. The Husband appeared at the Local Court at Sydney and was charged with an offence of “Use of a carriage device to menace/harass/offend”. The Husband was released on bail conditions that included that he was not to contact the Family Court. The matter was dealt with on 12 October 2006 and the Husband said he was placed on a bond to be of good behaviour.
On 15 December 2005 the Husband was forced by the Police to vacate the former matrimonial home. The Wife contends that the former matrimonial home was in a state of disrepair and damaged.
On 16 December 2006 Boland J delivered judgment and made the following orders:
1.That the parties shall do all acts and things necessary after the sale of the matrimonial home as provided in the orders appointing the wife trustee for sale made on 8 November 2005 to cause the funds held in the investment account in the joint names of the parties to be distributed between them so that the wife shall receive 52.5 per cent and the husband 47.5 per cent of the net assets and liabilities as set out in paragraph 109 of the reasons for judgment dated 16 December 2005 subject to the following adjustments:

(a)the matrimonial home shall be the actual sale price, less agent’s commission, auction costs if any including advertising, and legal costs and expenses associated with the sale;
(b) the Commonwealth Bank (St George Bank Limited) mortgage shall be the actual sum required to discharge the loans secured against the matrimonial home; and
(c) the sums, if any, paid to the parties pursuant to order 3.4 of the orders made on 8 November 2005.

2.Except as otherwise provided in order 4 of the orders made on 22 August 2005 and these orders, the husband and wife are entitled to the sole legal and beneficial ownership of all items of property including but not limited to money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession and control of them respectively.

3.The husband shall, within 7 days of the date of these orders, do all acts and things necessary to transfer to the wife any interest held by him in the Telstra shares.

Splittable payment

4.1Pursuant to s 90MT (1) (a) of the Family Law Act 1975 the Trustee of the AMP Superannuation Savings Trust shall make a splittable payment out of the interest held by [the husband] (DOB […].1958) (Policy No […] – Flexible Lifetime Super Plan) in the AMP Superannuation Savings Trust, and the trustee shall pay to [the wife] (DOB […].1960) an entitlement calculated in accordance with Part VI of the Family Law (Superannuation ) Regulations 2001 using a base amount of $96,650 held on behalf of [the husband] in the AMP Superannuation Savings Trust and there will be a corresponding reduction in the entitlements held on behalf of [the husband] which he would have had but for these Orders;

4.2That for the purposes of this order:
(i)     the base amount to be allocated to [the wife] is the amount of $96,650;
(ii)    these orders will have effect from the operative time;
(iii)     the operative date is 14 days after the Orders have been served upon the Trustees of the AMP Superannuation Savings Trust; and
(iv)   these orders are binding on the Trustees of the AMP Superannuation Savings Trust.

4.3That each party and each of the Trustees have liberty to apply in relation to the implementation of the orders effecting the superannuation interests of [the husband] in the AMP Superannuation Savings Trust.

4.4Pursuant to Section 90MZD of the Family Law Act 1975 as a matter of procedural fairness, the Trustees of the AMP Superannuation Savings Trust, having been given notice of the intention of the parties to seek orders set out herein are bound by them as and from the date of service upon the Trustees and shall give effect to these orders.

4.5Until the happening of:
(i)     the establishment of a separate account in the name of the wife;
(ii)    the transfer or rolling into another superannuation fund of the payment created herein in favour of the wife;
(iii)     the wife satisfies a condition of release and is paid the payment created by the Orders herein; or
(iv) the wife executes a waiver of rights within the meaning of section 90NZA of the Family Law Act 1975 in relation to the payment split
the Husband is forthwith restrained from drawing upon or encumbering the member’s interest in the AMP Superannuation Savings Trust or executing any death benefit nomination in favour of any person or doing any act or thing that would have the effect of defeating, diminishing or otherwise reducing the allocated splittable payment or rendering any part of his interest as a “not splittable payment” within the meaning of Regulation 12 and 13 of the Family Law (Superannuation) Regulations 2001.

4.6The solicitors for the wife shall serve a sealed copy of order 4 of these orders on the Trustees of the AMP Superannuation Savings Trust within 14 days of the date of these orders.

Other orders

5.Liberty to either party to restore to the list on 7 days notice to the other party and the Court.

6.That all exhibits and material produced under subpoena be returned to the owner thereof on the expiration of 28 days.

7.In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these orders a Registrar of the Court or their appointee pursuant to section 106A of the Family Law Act may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.

Her Honour made a finding that the property interests at the date of hearing had a gross value of $1,877,565 and after allowance for liabilities of $668,361 the net value was $1,209,204. Her Honour found that the superannuation interests had a value of $281,676.00. Her Honour found that the former matrimonial home was valued at $1.625 million. The effect of her Honour’s order was to give the Wife an entitlement to 52.5 per cent or $634,832 of the property interests and 47.5 per cent to Husband. The effect of her Honour’s order was to give the Wife an entitlement to $126,754 of the superannuation interests.
In January 2006 the Husband made an offer to purchase the former matrimonial home for $1.45 million.
On 19 January 2006 the Wife filed submissions as to costs.
On 19 January 2006 the Wife filed an application in a case to set a reserve price for the sale of the former matrimonial home as per a valuation of BN & Associates.
On 23 January 2006 a fourth valuation of the former matrimonial home was undertaken by BN & Associates and the property was valued at $1.45 million. In the report it was said “Our visual inspection conducted on Friday 20th January, 2006 revealed the property to be in an extremely neglected state with damage to internal areas also being evident”. Some time after this Husband offered to pay the Wife an amount of $350,000 for her interest in the home.
On 25 January 2006 the Husband attended the Local Court at Sydney. On 27 January 2006 Boland J disqualified herself from hearing any further applications between the parties.
On 3 February 2006 submissions were filed by the Husband in relation to costs.
On 10 February 2006 the Wife’s application to have the reserve price for the sale of the former matrimonial home reduced was listed before Cohen J. The Husband did not appear. His Honour made an order that the reserve price at the auction of the former matrimonial home be $1.45 million or in the event of failure to sell at auction such reasonable price as could be obtained.
On 16 February 2006 the Husband filed an application in a case seeking to postpone the sale of former matrimonial home at auction on 18 February 2006. On 17 February 2006 the Husband’s application was dismissed by Lawrie J. The Husband stated to the Court that he was not in a financial position to bid at the auction. The Court was advised that the St George Bank had obtained a writ of possession and if the property was not sold on 18 February 2006 the Bank would have the writ executed by the Sheriff. The Court was also advised that the mortgage debt was about $620,000.
On 18 February 2006 the Husband was the successful bidder at the auction of the former matrimonial home for a price of $1.41 million. The Husband provided a personal cheque of $70,000. The previous bid prior to Husband’s bid was $1.39 million. The Husband’s cheque was subsequently dishonoured.
On 27 February 2006 after negotiation by the Wife with the next highest bidder at the auction, the former matrimonial home was sold for $1.32 million.
On 21 March 2006 the Wife filed an application in a case seeking that the Husband’s former solicitors remove a caveat lodged on the title of the former matrimonial home and that the solicitors fees be paid into court from the proceeds of sale of the former matrimonial home. The Wife also made a claim that an amount sought by her in Local Court proceedings be paid into Court from the proceeds of sale. On 4 April 2006 Lawrie J made orders in respect of the caveat lodged by the Husband’s former solicitors. Her Honour dismissed the Wife’s other application and made no order as to costs.
Completion of the sale of the former matrimonial home took place on 10 April 2006. On settlement, after the payment of agents’ commission, legal costs and the amount required to discharge a mortgage namely $630,630.70, the net amount available from the proceeds of sale was $658,955.20. The Husband contends that the total net property pool was $838,417.20 when allowance was made for further assets of a value of $179,462 referred to in paragraph 109 of the judgment of Boland J of 16 December 2005. The Husband contends that his entitlement being 47.5 per cent was $398,248.17 and that the Wife’s entitlement being 52.5 per cent was $440,169.03.
On 12 April 2006 Faulks DCJ made the following orders:
1.That the husband will pay the costs of the wife on a party-party basis in the proceedings before her Honour Justice Boland on 14 November 2005, the hearing of 7 and 8 November 2005, and of costs thrown away on the first day as a result of the husband’s withdrawing his consent for the matter to be heard by the Judicial Registrar as agreed or in default of agreement as assessed under the Family Law Rules 2004.
2.That the wife serve upon the husband within 30 days an itemised costs account.
3.That the itemised costs account served by the wife upon the husband be paid within 90 days from the date of this order.
4.That the husband’s application for costs in the proceedings be and is hereby dismissed.
On 10 May 2006 the Husband filed a Notice of Appeal against the orders made by Faulks DCJ on 12 April 2006.
On 22 May 2006 orders were made by consent in the Local Court to discontinue proceedings commenced by the Wife seeking the sum of $47,250 as a result of the Husband’s actions at the auction of the former matrimonial home.
On 23 May 2006 the Husband served on the Wife a copy of the Notice of Appeal filed on 10 May 2006.
On 14 June 2006 a firm of solicitors on behalf of the Husband wrote to the solicitors for the Wife and contended that having regard to the sale price of $1,320,000 the Wife was entitled to $440,169.03 and the Husband was entitled to the balance of $398,248.17. It was contended that in order for the Husband to receive an entitlement of 47.5 per cent of the assets he was to receive $408,671.17 from the net proceeds of sale of the former matrimonial home whereas in fact he received the sum of $399,401 leaving a shortfall of $9,269.57.
On 11 October 2006 an application for contravention was filed by the Husband in relation to the amount of $9,269.57 which he contended was owing to him as part of his share of the proceeds of sale of the former matrimonial home. The parties agreed that the argument of the costs of the contravention proceedings be reserved to be determined by the Judge determining the property proceedings costs issues.
On 28 November 2006 the Wife solicitors wrote to the Husband’s solicitors referring to the application for contravention filed on 11 October 2006 on behalf of the Husband. On behalf of the Wife it was contended that pursuant to the orders made on 12 April 2006 by Faulks DCJ in relation to costs, the Husband owed the Wife a total of $11,993 and that if this was offset against the amount of $9,269.57 then the Husband owed the amount of $2,723.43 to the Wife. A suggestion was made that this amount be paid and held in trust pending the outcome of the Husband’s appeal against the orders made by Faulks DCJ.
On 5 February 2007 the Husband commenced employment with … as a senior business consultant. This employment may now have ceased.

On 30 March 2007 orders were made by the Full Court (Kay, Coleman and Stevenson JJ) that the appeal against the costs orders made by Faulks DCJ be allowed, the orders set aside and the matter be remitted to a Judge for re-hearing.

RELEVANT PRINCIPLES

Section 117(1) of the Family Law Act1975 (Cth)provides that subject to s 117(2) and s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) provides that if, in proceedings under the Act, I am of opinion that there are circumstances that justify me in doing so, I may, subject to sub secs (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs whether by way of interlocutory order or otherwise, as I consider just.
Section 117(2A) provides that in considering what order (if any) should be made under s 117(2), I shall have regard to the matters set out in paras (a) to (g).
Section 117AA deals with costs in proceedings relating to overseas enforcement and international Conventions and s 118 deals with frivolous or vexatious proceedings.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ) said at p 130:
[41]…The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
I also observe that although I am required to make a finding of justifying circumstances I am not required to specify the circumstances that may justify the making of an order. In fact even in the absence of reasons an appellate court may examine the circumstances and determine for itself whether the circumstances show that the discretion was wrongly exercised: Penfold and Penfold (1980) 144 CLR 311.

RELEVANT MATTERS

I am required to consider the financial circumstances of each of the parties to the proceedings.
In her judgment Boland J said that the effect of the orders proposed by her would result in the Husband retaining property and superannuation interests totalling $729,294 and the Wife retaining property and superannuation interests of $761,586. The Wife would retain slightly more of the available assets. However, part of the Wife’s entitlement included her half interest in a property at … (“the third property”) which may not be immediately realisable.
Her Honour also said that at the commencement of the hearing both parties were unemployed. The Wife was registered with employment agencies and had obtained occasional casual work at a relatively modest pay rate. The Husband’s curriculum vitae indicated that he is a highly qualified senior business consultant with 28 years experience both in Australia and overseas. Although he was made redundant on 1 June 2005, his evidence was that there was a possibility of work for him in the United States but he was not interested in working overseas. He conceded in cross examination that employment with an Australian company was possible but it would be in Brisbane or Melbourne. On 7 November 2005 the Husband gave evidence that he had attended a job interview and had prospects of obtaining employment in Sydney commencing in January in 2006 on a six month contract at a weekly salary of $5,000 per week.
As to the Wife, her Honour said that the Wife had a history of employment in the retail sector and in office work as an administrator. Prior to her redundancy the Wife earned a gross weekly sum of $882 per week. The Husband’s salary as disclosed in his eligible termination package comprised a base salary of $146,908, and superannuation of $12,109 resulting in a total package of $159,017.60. Her Honour found that the Husband’s earning capacity, by reason of his training, skills and expertise acquired during the marriage, including periods of his employment overseas, significantly exceeded the Wife’s capacity.
I am required to consider 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. Neither party was in receipt of a grant of legal aid.
I am required to consider 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. This is an important matter.
There are a number of issues raised in the submissions on behalf of the Wife in relation to the conduct of the proceedings generally and difficulties that she confronted. On behalf of the Wife it was submitted that both parties prepared for the hearing listed before the Judicial Registrar, and it was anticipated that the matter would proceed on that day. The issue of consent was raised by the Judicial Registrar and not by the Husband through his legal representatives. The Husband was represented at the time that the applications were set down for hearing and either consented or acquiesced to the listing. Subsequently the Husband did not raise any issue of limits on the Judicial Registrar’s jurisdiction until about 11:00 am on 23 May 2005. The Wife found it necessary to pay her legal expenses for the three day aborted hearing before the Judicial Registrar.
The Husband did not meet the mortgage payments over the former matrimonial home eventually resulting in St George Bank obtaining a writ of possession. During 2005 the Husband did not pay the insurance premiums on the former matrimonial home to the GIO. Pausing there, I do not consider that this conduct per se falls within the type of conduct envisaged by s 117(2A)(c) of the Family Law Act as the provision deals with “…conduct …in relation to the proceedings” but may be relevant to the proceedings under s 79 or perhaps even s 79A. However such conduct would be relevant in relation to proceedings that arise in consequence of such conduct.
On behalf of the Wife it is submitted that the Husband’s focus upon the Wife’s interest in land in Greece acquired by her by way of gift from her father in 2003 caused the Wife to expend a disproportionate amount on legal costs compared to the value of her interest being $1,997. On behalf of the Husband it is submitted that the Wife did not disclose in a timely fashion her interest in real property in Greece.
Then there are a number of findings made by Boland J. Her Honour said “I am satisfied that the debt incurred by the Husband by reason of his increase in borrowings against his line of credit taking into account any reduction in the mortgage, has been the result, in part, of his conduct in failing to act appropriately and diligently to secure the sale of the matrimonial home in a timely manner including cooperation with the real estate agent and prospective purchasers.” Her Honour said “I found the Husband’s evidence about his expenditure post separation, particularly the events in the preceding paragraph, was unsatisfactory and I was unable to accept much of his evidence.” Her Honour said: “I found the Husband’s evidence about his expenditure post separation was not clear or cogent. On the evidence before me I was simply unable to reconcile much of the Husband’s alleged expenditure with his income and borrowings”.
The Husband did not accept offers made by a purchaser to buy the former matrimonial home for $1.6 million on 15 September 2005 and on 8 October 2005. During 2005 the Husband did not cooperate with the real estate agents in selling the former matrimonial home, and at times was obstructionist in the sale. On behalf of the Wife it is submitted that the opportunity for the parties to sell the former matrimonial home for $1.6 million and then for $1.39 million were thwarted by the Husband leading to a significant loss to both parties.
The Wife found it necessary to make an application to the Court for various orders relating to the former matrimonial home on 14 October 2005, 7 November 2005, 10 February 2006 and 4 April 2006. The Wife contends, and I accept, that she expended significant legal costs in prosecuting her various applications.
The Husband allowed the former matrimonial home to fall into disrepair during his sole occupation of the property from 5 May 2003 to 15 December 2005. On behalf of the Wife it is submitted that the diminution in the value of the former matrimonial home was in part a result of the Husband’s lack of care for the property during the period that he was in sole occupation.
The Husband opposed the Wife’s application that she be appointed as trustee for sale. The Husband did not comply with the Orders that he provide vacant possession on 13 December 2005. The Husband did not consent to the reserve price at the proposed auction being $1.45 million. The Husband by application sought to delay the auction sale of the former matrimonial home with such application being dismissed. The Wife had to defend the Husband’s application to the Court on 17 February 2006 again incurring legal costs. The Husband purported to purchase the former matrimonial home at the auction when he was not in a position to do so as evidenced by his paying the five per cent deposit with a dishonoured cheque.
So far as the Husband is concerned on his behalf it is submitted that the contravention proceedings were made necessary by the Wife's failure to pay an amount of money in accordance with the orders of 16 December 2005. It is submitted that the Wife conceded to the Husband by letter on 28 November 2006 that she had failed to pay the full amount in accordance with the order of 16 December 2005. The Wife sought to offset any amount due to the Husband pursuant to the property order on the basis of amounts of money outstanding to the Wife pursuant to a costs order.
I am required to consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.
On behalf of the Husband it is submitted that the contravention application was brought about by the Wife's failure to pay to the Husband monies due to him pursuant to the orders of 16 December 2005.
On behalf of the Wife it is submitted that the Application filed by the Husband on 11 October 2006 was purportedly pursuant to s 112AD of the Family Law Act. The application was in relation to an additional payment by the Wife to the Husband because of a miscalculation of the settlement figures. The Husband did not avail himself of any of the procedures for enforcement of the payment of monies. The Husband at that time owed the Wife monies in respect of costs orders. On behalf of the Wife it is submitted that the application was inappropriate or alternatively that it had little prospect of success.
I am required to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings. This matter is relevant.
On behalf of the Husband it is submitted that the Wife was unsuccessful in her property application. The Wife sought a division of the matrimonial home in percentages 70 per cent to herself and 30 per cent to the Husband. It is submitted that the final order falls far short of the Wife's ambit application which was not moderated at any time during the hearing. Further, the Wife did not receive an order for spouse maintenance.
In fact the Wife sought an entitlement of 60 per cent and no splitting order. The Husband sought an entitlement of 60 per cent. The Wife achieved an entitlement of 52.5 per cent of the property interests and a splitting order.
The Wife successfully obtained relief on 8 November 2005 and 10 and 17 February 2006.
I am required to consider 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. This matter is relevant. It is perhaps the most significant matter relied upon by the Husband.
The Husband made two offers of settlement. The first on 3 June 2004 and the second on 23 May 2005.
On behalf of the Husband it is submitted that if the offer made on 3 June 2004 is compared to the calculation of the results as set out in the Husband's affidavit at paragraph 49 it can be seen that the Wife did not do as well as the Husband's offer. The second offer of settlement was made on 23 May 2005 and inferentially replaced the first offer of settlement. On behalf of the Husband it is submitted that if this offer is compared with the calculation of the results as set out in the Husband's affidavit at paragraph 49 it can be seen that the Wife did not do as well as the Husband's second offer. It is submitted that had the Wife accepted either of these offers then any costs following these offers would have been avoided. It is also submitted that had the Wife accepted the Husband's other offers to purchase the former matrimonial home the Wife would have been in a superior position financially as compared to her financial position as a consequence of the orders of Boland J.
The Husband contends that under the terms of his first offer of settlement if the Wife had accepted his offer she would have received an entitlement of a net value of $452,495.08 and he gave evidence showing how this amount was calculated. He also contends that in addition he made an offer of a splittable payment of his interest in a superannuation fund using a total base amount of $86,859 and as well the Wife would have retained her superannuation interest of a value of $30,104. He contends that under his first offer the Wife would have received a total of $569,458.08 and pursuant to the orders of Boland J the Wife received a total of $566,915.03.
On behalf of the Wife it is submitted that the offer of June 2004 was made at a time when the Wife thought that the former matrimonial home was worth $2.2 million. The offer allowed for the Wife to have 40 per cent of the proceeds of sale of the former matrimonial home and a superannuation splitting order of some $86,859. The Wife’s perception of the value of the former matrimonial home, and of the Husband at that time, was of a significantly increased value of the property pool and the disparity in what each party would receive pursuant to the offer. In the submissions the Husband purported to calculate the value of the offer using the figures that were eventually received from the proceeds of sale of the former matrimonial home some 20 months later, and after a significant diminution in the value of the former matrimonial home.
The Husband contends that pursuant to the terms of second offer of settlement if accepted the Wife would have received a net amount of a total of $638,913. In addition the Wife would have received superannuation interests with the consequence which she would have received, inclusive of the superannuation, an entitlement of a net value of $775,827 compared to the total amount received of $566,915.03 pursuant to the orders of Boland J.
On behalf of the Wife a number of submissions were made in relation to the offer of 23 May 2005. Both parties’ final property applications sought a percentage split of the proceeds of sale of the former matrimonial home. At the time that the Husband made the offer, his Case Outline document showed that he was contending that the net assets of the parties had a value of $1,282,868 not including superannuation interests. This net value included the value of the former matrimonial home at $1.7 million. Pursuant to the offer the Wife was to receive a payment for her share of the former matrimonial home of $450,000 plus other assets valued at $181,873 being a total of $631,873. This represented at that time 49 per cent of the total net value of the assets (not including superannuation) as agreed to by both parties. It also represented about 40 per cent of the agreed value of the former matrimonial home less the liability for the mortgage debt. The Husband was also offering a splitting order of $106,810 being about $10,000 more than the Wife received pursuant to the final orders of Boland J. The additional amount of $10,000 in the offer by way of superannuation was not significant. The final orders of Boland J gave the Wife 52.5 per cent of the total net value of the assets excluding superannuation that is 3.5 per cent more than the Wife was to receive by way of the offer. If the Husband’s offer had given the Wife 52.5 per cent of the value of the asset pool (not including superannuation) then he would have been required to pay about $491,632 to the Wife for her interest in the former matrimonial home. At the commencement of the hearing before Boland J the most significant asset of the parties’ being the matrimonial home continued to have an agreed value of $1.7 million. By 7 November 2005 an external inspection had reduced the value to $1.625 million. At the time the offer was made the parties could not have foreseen that the value of the former matrimonial home would be further reduced to $1.32 million by the time of its sale in February 2006.
On behalf of the Wife it is submitted that some aspects of the Husband’s conduct as mentioned above may well have led to the resultant diminution of value of the former matrimonial home and in particular his lack of co-operation in the sale, his lack of care and maintenance of the property and his mischievous attempt to purchase the property at auction. As a result of the former matrimonial home selling for significantly less than the value ascribed to it at the hearing both parties were worse off. Such a situation was not a matter contemplated by either party at the time the offer was made, and that the offer represented a significant percentage drop given to the Wife by the orders of Boland J.
The Husband also made a number of ‘offers’ to buy the Wife’s interest in the former matrimonial home. These offers were made essentially after the hearing of the matter both before and after the judgment. At the time of these offers the Husband was unemployed and was unable to maintain payments such as mortgage, rates, utilities, insurance and so on in respect of the former matrimonial home. The loan application contained a number of conditions and there is no evidence that the Husband would have been able to fulfil those conditions, for example, obtaining a tenancy agreement for $1,000 per week. Additionally by 7 November 2005 the Husband ceased to have legal representation in the proceedings. The Wife was concerned that the offers were not genuine but merely a ploy to stop the sale of the former matrimonial home. Her concerns were realized by what happened at the auction of the former matrimonial home and the Husband’s attempts to purchase it.
I am required to consider such other matters as I consider relevant.
On behalf of the Husband it is submitted that at no stage during any of the proceedings does it appear that the Wife has taken the opportunity to seriously consider a resolution of the proceedings. It is submitted that both offers of settlement made by the Husband in relation to the property proceedings were rejected. The Wife declined an opportunity to pay to the Husband an amount of money due to him pursuant to the property orders. It was necessary for the Husband to lodge an appeal to the Full Court of the Family Court in order to have Faulks DCJ determination set aside. The setting aside of this order did not happen by operation of an order made by the Full Court after a contested hearing, but was dealt with by way of consent orders.

CONCLUSION

In this case there were property settlement proceedings and the trial judge found that the assets of the parties, including superannuation interests, had a gross value of $2,159,241 ($1,877,565 plus $281,676) and after allowance for liabilities of $668,361 a net value of $1,490,880. Her Honour found that the former matrimonial home was valued at $1.625 million. The effect of her Honour’s order was to give the Wife an entitlement to 52.5 per cent or $634,832 of the property interests and 47.5 per cent to Husband. The effect of her Honour’s order was to give the Wife an entitlement to $126,754 of the superannuation interests. Thus the Wife was to receive in total $761,586. The Husband was to receive a total of $729,294. The former matrimonial home later sold for $1.32 million being $305,000 less than the value found by her Honour and thus the assets had a net value of $1,185,880. The former matrimonial home was the most significant asset. Yet in these circumstances by consent the matter was listed for a three day hearing before a Judicial Registrar which on the first day of the hearing was vacated. The applications were then listed before a judge on 18, 19 and 22 August 2005, 14 October 2005, 7 and 8 November 2008 and 10 and 17 February 2006.

In all the circumstances of this case, the Wife has established justifying circumstances in relation to the costs thrown away on 23, 24, 25 May 2005 as a result of the Husband’s withdrawing his consent for the matter to be heard by a Judicial Registrar. In my opinion, in all the circumstances, no or no adequate explanation has been given by the Husband for why this cost was incurred. I am going to order that the Husband pay the costs of the Wife.
Before Boland J the parties were at issue in respect of their respective entitlements. As seen, at the conclusion of the evidence the Wife sought orders for the sale of the former matrimonial home essentially by private treaty and that on completion of the sale the proceeds be divided so that she receive 60 per cent of the parties’ property and superannuation entitlements. The Wife did not seek a share of the Husband’s superannuation by way of splitting order, but rather that she receive her entitlement from presently available assets. The Husband sought the sale of the former matrimonial home by public auction and on completion of the sale that the proceeds be divided as to 35 per cent to the Wife and 65 per cent to him. He also sought a splitting order under Part VIIIB of the Family Law Act in respect of his superannuation entitlements held in the AMP Superannuation Savings Trust with a base amount of $106,810 being allocated to the Wife. In her judgment of 16 December 2005 Boland J said that on 14 October 2005 submissions were made by each party’s counsel as to the appropriate division of assets. On behalf of the Wife it was submitted that the Wife’s contribution based entitlement should be assessed at 55 per cent and the Husband’s entitlement at 45 per cent. On behalf of the Wife it was submitted that a 5 per cent adjustment should be made in her favour under s 75(2) of the Family Law Act based on the Husband’s superior earning capacity. It was submitted that the Wife’s entitlement of 60 per cent should be paid out of presently available assets and that no splitting order should be made. On behalf of the Husband it was submitted that the parties’ contribution based entitlements should be assessed at 55 per cent/45 per cent in favour of the Husband, and that an adjustment, not exceeding 5 per cent, should be made in the Husband’s favour under s 75(2). The effect of her Honour’s order was to give the Wife an entitlement to 52.5 per cent or $634,832 of the property interests and 47.5 per cent to Husband. The effect of her Honour’s order was to give the Wife an entitlement to $126,754 of the superannuation interests. Thus the Wife achieved $761,586. The outcome sought by the Wife was 60 per cent of $1,490,880 being $894,528.
I am concerned about the findings which the trial judge made about the behaviour of the Husband which I have referred to earlier in this judgment. These matters are also relevant as to why the Wife did not accept the offers made by the Husband. However as to the application by the Wife for costs, in all the circumstances, I accept that there were reasonable areas of disagreement between the parties and that a judicial adjudication of the respective claims was necessary and that the hearing required three days as was originally envisaged. In the result I am not persuaded that the Wife has established justifying circumstances supporting an order that the Husband pay her costs of the three day hearing on 18, 19 and 22 August 2005.
I am also not persuaded that the Husband by reason of his two offers of settlement and offer to purchase the Wife’s interest in the former matrimonial home has established justifying circumstances such that the Wife should pay the Husband’s costs of the property proceedings. I accept the submissions made on behalf of the Wife. I accept that the rejection by the Wife of the various offers made by the Husband was reasonable. I also take into account the findings in relation to the behaviour of the Husband.
After the hearing on 22 August 2005 the hearing was adjourned and thereafter was before her Honour on three occasions. I do not accept that the non-disclosure by the Wife of the interest in land in Greece is relevant to the costs issues. The Husband could have raised the issue well prior to the hearing before her Honour and the value resolved. In any event the value obviously became immaterial to the Husband. What was more significant was the value of the former matrimonial home and the necessity to sell the property and the efforts undertaken to do so. This was the subject of the further hearing before Boland J on 14 October 2005 and 7 and 8 November 2005. In my opinion, the Wife has established justifying circumstances in relation her costs incurred on these days.
Even after Boland J delivered judgment and made a final order the problems of selling the former matrimonial home persisted and there were further proceedings on 10 February 2006 before Cohen J and on 17 February 2006 before Lawrie J. In my opinion, the Wife has established justifying circumstances in relation to her costs incurred on these days.
As to the Husband’s application for costs in respect of his Contravention Application filed on 11 October 2006 I am not persuaded that he has established justifying circumstances. I accept that it was reasonable for the Wife to seek an offset against what was then a current order of Faulks DCJ. Further, the issue could have been dealt with by an application for an enforcement order. I accept that it was a miscalculation. I am not persuaded that the general rule in s 117(1) should not apply to these proceedings.
If I were to make an order that the costs be in an amount as agreed within a specified time and failing such agreement as taxed then given the history of litigation and the behaviour of the Husband I am concerned that an agreement may not be reached and the parties then put to the further costs and expense of an assessment. However, notwithstanding these concerns I propose to make an order that the costs be in an amount as agreed within 21 days of the date of this judgment and failing such agreement as assessed by a taxing officer on a party and party basis.
In relation to the costs of this costs application I am satisfied that the Wife has established a justifying circumstance. The Wife has been substantially successful. Again I propose to make an order that the costs be in an amount as agreed within 21 days of the date of this judgment and failing such agreement as taxed by a taxing officer.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date: 10 June 2008

[2008] FamCA 399

10 June 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Appeal