Kalantari and Maine (No 3) - [2021] FamCA 183

FAMILY COURT OF AUSTRALIA

KALANTARI & MAINE (NO. 3)

[2021] FamCA 183

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband’s former solicitor to intervene in the costs proceedings between the husband and wife – Where the court found the completed section 79 property proceedings render the court functus officio – Leave to intervene refused.

FAMILY LAW – COSTS – Competing applications for costs by the husband and wife – Orders made in favour of the wife.

Family Law Act 1975 (Cth) ss 79(2), 79(10), 92, 117

Family Law Rules 2004 (Cth) r 6.05)

Bailey v Marinoff (1971) 125 CLR 529

Guinness and Guinness (No. 2) [2008] FamCAFC 100

McDonald and McDonald (1976) FLC 90-047

Vadisanis v Vadisanis (2015) FLC 93-671

APPLICANT:

Ms Maine

RESPONDENT:

Mr Kalantari

INTERVENOR:

SS Pty Ltd t/a SS Company

FILE NUMBER:

SYC

2016

DATE DELIVERED:

7 April 2021

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rugendyke

SOLICITOR FOR THE APPLICANT:

Georgia Seaton Family Law and Mediation

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Owen Hodge Lawyers

COUNSEL FOR THE INTERVENOR:

Ms Carnell

SOLICITOR FOR THE INTERVENOR:

SS Company

Orders

Insofar as is necessary, the application of SS Company for leave to intervene in these proceedings is refused.
Within 28 days the husband pay to the wife a sum of $20,000 on account of her costs in the proceedings for alteration of property interests.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalantari & Maine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8 of 2016

Ms Maine

Applicant

And

Mr Kalantari

Respondent

And

SS Pty Ltd t/a SS Company

Respondent

REASONS FOR JUDGMENT

The proceedings

Ms Maine (the wife) and Mr Kalantari (the husband) were parties to litigation in respect of property settlement and parenting issues. The proceedings originally were listed for trial for five days commencing on 10 February 2020. On 13 February 2020 the parties consented to final parenting orders in relation to their two children.
A substantial issue in the property proceedings was the wife's post-separation use of funds drawn down on mortgage accounts. The husband sought that an amount of $622,179 be "added back" to the list of assets and/or taken into account pursuant to section 79(2)(o) of the Family Law Act 1975 (Cth) ("the Act"). At the commencement of the trial on 10 February 2020, counsel for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FamCA 183
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by SS Pty Ltd, the former solicitor for Mr Kalantari (the husband), for leave to intervene in costs proceedings between the husband and Ms Maine (the wife). The primary dispute involved competing applications for costs following final property settlement orders made on 29 October 2020. The court also had to determine the wife's application for costs and the husband's response, which included a request for costs against the wife.

The legal issues before the court were whether SS Pty Ltd had standing to intervene in the costs proceedings, and if so, whether leave should be granted. The court was also required to determine the wife's application for costs and the husband's counter-application for costs, considering the conduct of the parties and other relevant factors under section 117 of the Family Law Act 1975 (Cth).

Stevenson J found that SS Pty Ltd lacked standing to intervene because the substantive property proceedings under section 79 of the Family Law Act had been finalised and perfected by orders entered on 29 October 2020. Citing *Bailey v Marinoff* and *Vadisanis v Vadisanis*, the court held that it was *functus officio* in relation to those proceedings, meaning it had no power to reopen perfected orders except in limited circumstances such as the correction of formal errors, fraud, or a failure to give a party a hearing, none of which applied here. The court determined that the orders sought by SS Pty Ltd would affect substantive rights and were not merely machinery or consequential orders. Furthermore, SS Pty Ltd had already commenced separate proceedings in the Local Court and Supreme Court to recover its costs from the husband, indicating an election of jurisdiction.

Consequently, the application by SS Pty Ltd for leave to intervene was refused. The court then turned to the competing costs applications between the husband and wife. After considering the conduct of the parties and other relevant matters under section 117 of the Family Law Act, the court ordered that within 28 days, the husband pay to the wife a sum of $20,000 on account of her costs in the property settlement proceedings.

Orders