Kalla and Kalla (No 2)

[2020] FamCA 532

FAMILY COURT OF AUSTRALIA

KALLA & KALLA (NO. 2) [2020] FamCA 532

FAMILY LAW – COSTS – Application dismissed

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

APPLICANT: Ms Kalla

RESPONDENT: Mr Kalla

FILE NUMBER: SYC 2434 of 2019

DATE DELIVERED: 5 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 5 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Newnhams Solicitors

THE RESPONDENT: Self-represented

Orders

IT IS ORDERED

1. That the wife’s application for costs of the Application in a Case filed 12 February 2020 be dismissed.

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 Kalla & Kalla 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 2434 of 2019

Ms Kalla

Applicant

And

Mr Kalla

Respondent

REASONS FOR JUDGMENT

1. On 9 April 2020, I delivered reasons and made orders in relation to an Application in a Case filed by Ms Kalla (“the wife”) in which she sought, against Mr Kalla (“the husband”) orders for the preservation of the proceeds of sale of a property owned by the husband, payment of $100,000 from the proceeds of sale to her and spousal maintenance of $2,321 per week.

2. The wife was successful in relation to the first two applications but was only partly successful in relation to the issue of spousal maintenance. An order was made that the husband pay $720 per week.

3. The wife now seeks an order that the husband pay her costs of the Application in a Case on an indemnity basis, assessed to be $28,094.61 or, in the alternate, on a party and party basis assessed to be $22,046.43.

4. Directions were made for both parties to file submissions in relation to the issue of costs by 21 May 2020. The wife’s submissions were filed on 7 May 2020. The husband sought and was granted an extension until 4pm on 4 June 2020 but he did not file submissions in accordance with the extension.

5. The application falls to be determined pursuant to the provisions of section 117(2A) of the Family Law Act 1975 (Cth) which are set out below:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  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;

   (c)  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;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  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; and

   (g)  such other matters as the court considers relevant.

6. The wife disclosed an income of $1,990 per week and is the beneficiary of an order for maintenance in the sum of $720 per week. However, I accept that the husband has not paid maintenance in accordance with that order.

7. Thus the wife’s income is insufficient to meet her reasonable outgoings.

8. Because the husband has not filed a current financial statement or complied with a number of directions in relation to disclosure of his financial position, it is not possible to know what his income might be or what his assets are. The obstacles to ascertaining the husband’s financial position are set out in the reasons for judgement delivered on 9 April 2020 and it is not necessary to repeat them here.

9. Neither party is in receipt of legal aid.

10. The wife relies heavily on the husband’s conduct. However, in so far as the conduct complained of is his conduct in the substantive proceedings, rather than in relation to this Application in a Case, that reliance is misconceived.

11. In relation to the present application, the wife’s solicitors wrote to the husband on 15 January 2020 proposing that the proceeds of sale of the subject property be held in controlled moneys pending resolution of the substantive proceedings. The husband did not reply. The husband failed to keep the wife informed of the progress of the sale of the property.

12. I accept that had he done either of those things, the wife might not have filed an application seeking orders in relation to the proceeds of sale. However the wife’s application also related to spousal maintenance and interim property settlement so the husband’s failure to keep her appraised of the sale of the property was not a factor in her pursuing the applications.

13. Nothing in the submissions on behalf of the wife suggests that the husband’s conduct of the proceedings in relation to interim property settlement or spousal maintenance exacerbated her costs.

14. Whilst it may be arguable that the application in relation to the proceeds of sale of the property was necessitated by the husband’s failure to comply with orders for the provision of financial information, that argument cannot be applied to the applications for spousal maintenance and interim property settlement.

15. The husband was not wholly unsuccessful. He successfully resisted the wife’s claim for maintenance of $2,321 per week. The order was for $720.

16. I do not consider that those factors justify the making of an order in favour of the wife for the costs of the Application in a Case.

17. The application will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 June 2020.

Associate: 

Date:  05/06/2020