Kedis and Kedis

[2015] FCCA 3215

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS [2015] FCCA 3215

Catchwords:
FAMILY LAW – Property orders – costs – compensation and/or restitution – as a result of conduct of the husband – orders sought by the wife – orders made upon application of wife.

Legislation:

Family Law Act 1975, ss.80, 106A, 117

Applicant: MR KEDIS

Respondent: MS KEDIS

File Number: MLC 2787 of 2013

Judgment of: Judge Hartnett

Hearing date: 21 August 2015

Date of Last Submissions:

28 August 2015 (husband)

31 August 2015 (wife)

Delivered at: Melbourne

Delivered on: 4 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Tiecher

Solicitors for the Applicant: Mulligan & Associates

Counsel for the Respondent: Mr Levine

Solicitors for the Respondent: Jeanne Gorman Barristers & Solicitors

THE COURT ORDERS THAT:

1. From the monies held in trust on behalf of the husband by the solicitors for the wife there be a further payment out to the wife in the total sum of $20,000 being:-

   (a)$10,000 toward reimbursement of legal costs incurred by the wife and not covered by previous costs orders or payment of costs and/or disbursements in respect of the conduct of the husband; and

   (b)$10,000 by way of costs reserved on 6 February 2015 and the costs of this proceeding.

2. The wife pay to the husband an amount of $500 in reimbursement of monies expended by her on repairs to the former matrimonial home but such sum be offset against the monies payable by the husband to the wife pursuant to order number 1 of these orders.

3. Otherwise and as soon as practicable all monies held in trust on behalf of the husband by the solicitors for the wife be paid out to the husband save that an amount of $5,000 can continue to be held in trust pending determination of any application filed or to be filed within 28 days hereof in the Family Court of Australia by the wife seeking a taxation and/or payments of costs by the husband to her as ordered in the Family Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2787 of 2013

MR KEDIS

Applicant

And

MS KEDIS

Respondent

REASONS FOR JUDGMENT

1. Final parenting and property orders were made in these proceedings on 29 November 2013. I refer to the judgment published for a history as to the matter. Various applications then followed, including an appeal by the husband against the orders made on 29 November 2013, such appeal being dismissed by the Full Court of the Family Court of Australia on 2 July 2014.

2. Pursuant to the orders of 29 November 2013, the real property situate at Property A in the State of Victoria (“the matrimonial home”) was to be transferred from the sole proprietorship of the husband to that of the wife. The real property situate at Property H in the State of Victoria (“the investment property”) was to be forthwith placed on the market for sale, with the net proceeds to be distributed in accordance with order number 15 of the orders of 29 November 2013. Included in that order was subparagraph 15(e) which is as follows:-

   “15. Forthwith the investment property be placed on the market for sale, with the wife to have sole authority and control of the sale and the proceeds derived from the sale be applied as follows:-

   (a) …

   (b) …

   (c) …

   (d) …

   (e) fifthly, the balance then remaining to the husband save that such monies are not to be paid out to the husband for a period of 60 days from receipt of such funds so that in the event the husband causes any further damage to the real properties on either of them and/or incurs any further unnecessary legal costs to the wife, the wife is at liberty to make application for a payment of restitution and/or compensation by the husband.”

   Also included in the orders was order number 22 of the orders of 29 November 2013:-

   “22. Liberty to apply on short notice with respect to the sale of the investment property and/or enforcement of these Orders.”

3. In addition to the above orders, the final orders of 29 November 2013 also provided for the husband to vacate the real properties as described in paragraph 2 herein on or before 3 December 2013. He failed to do so and enforcement proceedings were necessary. The orders also provided for the Registrar to sign documents on behalf of the husband pursuant to s.106A of the Family Law Act 1975 (Cth) (“the Act”) in respect of the investment property only, as at the time this was the only real property envisaged to be sold. Subsequently it became necessary for the wife to seek similar orders in respect of the unfounded lodgement of a caveat on the title to the former matrimonial home by the husband, so as to enable settlement of the sale of the former matrimonial home by the wife.

4. Settlement of the sale of the investment property occurred on 20 June 2014. Settlement of the sale of the former matrimonial home occurred on 15 September 2014, following the wife determining to sell same because of the family violence perpetrated upon her and the children by the husband, including a threat by the husband to burn down the property. As detailed in the wife’s affidavit sworn 15 September 2014, which evidence I accept, the wife encountered great difficulty in preparing the two real properties for sale due to the husband’s conduct including a failure by him to deliver up the keys to the real properties as provided for in order number 12 of the orders made on 29 November 2013; his damaging of the real properties; his failure by himself and/or his agent, to remove his property from the real properties; and his wrongful lodging of caveats, including his instructing his mother to lodge a caveat, over both properties. The wife spent a considerable period of time and incurred unnecessary expenses preparing the properties for sale and arranging for vacant possession.

5. Following the making of the final orders of 29 November 2013, various costs orders have been made by the Court, including the following:-

   a)on 23 December 2013 it was ordered the husband pay the wife’s costs fixed in the sum of $1,500 in respect of the Application in a Case filed by the wife on 16 December 2013. That application was necessary because not only had the husband failed to vacate the parties real properties as ordered by the Court, but he had failed to deliver the keys to the parties two houses, on the two relevant parcels of real estate, to the Registrar of the Court as ordered;

   b)on 15 January 2014 a stay application of the husband filed 23 December 2013 was dismissed and a warrant of possession in respect of the former matrimonial home issued. The husband had lived in the former matrimonial home between May 2013 and February 2014, despite the making of final orders of the Court on 29 November 2013 that he vacate the premises on or before 3 December 2013. He was evicted on 25 February 2014. The wife’s costs of these applications, ultimately determined on 6 February 2015 as to quantum, was to be paid by the husband. In addition a contravention application filed by the wife on 16 December 2013 was proven against the husband resulting in an order that the husband pay the wife’s further costs in the sum of $1,000;

   c)on 11 September 2014, there being a need for an application for a Registrar, pursuant to s.106A of the Act to sign a withdrawal of caveat lodged by the husband to allow settlement of the former matrimonial home, the husband was ordered to pay the costs of the wife fixed in the sum of $1,000;

   d)on 15 September 2014 further costs were ordered against the husband in the sum of $1,500;

   e)on 6 February 2015 the parties costs of the day were reserved in respect of the response to an application in a case filed by the wife on 15 September 2014. The Court made it clear on this day, by reference to the transcript of proceedings, that there would be no order for costs in relation to the contravention application withdrawn by the husband which was also before the Court, and as such only the costs of the parties in respect to the above response of the wife were reserved. They were however clearly reserved, as ordered. The Court further ordered that the application determined by it on 15 January 2014 required the husband to pay to the wife the sum of $4,986.50 in satisfaction of the order as to costs made that day;

   f)on 4 May 2015 a further costs order was made against the husband in the sum of $3,500 in respect of an unsuccessful contravention application of the husband. The Court reiterated it would not make a costs order in respect of the 6 February 2015 withdrawal by the husband of his contravention application.

6. In respect of these past costs orders, the wife seeks a payment to her in respect of those costs reserved on 6 February 2015. On that day an order was made relevantly as follows:-

   “The parties costs of this day are reserved.”

   The husband argues that such costs were subsequently dealt with by the Court on 4 May 2015 and by reference to the transcript of proceedings. I accept the husband’s submissions in respect of any costs associated with the husband’s contravention application. The husband filed an application for contravention on 24 December 2014. The Court granted leave to the husband to withdraw that application on 6 February 2015 and otherwise reserved the costs of the day. The wife made an application for an award of costs in respect of the husband’s withdrawal of his contravention application proceedings, on 4 May 2015. The Court indicated on that day, as indeed it had on 6 February 2015, that it would not make an order for costs in respect of the husband’s flawed contravention application. The Court indicated that what remained extant on 4 May 2015 was the wife’s application contained in a response filed on 15 September 2014. That application was adjourned for final hearing to 21 August 2015. It is plain that the order reserving costs applied to that application and remains extant.

7. The substantive application before the Court and the subject of these Reasons is an application as contained in a response to an application filed by the wife on 15 September 2014. In that response the wife seeks the following orders:-

   “1. That the husband make pay (sic) compensation/restitution for damage to the real properties and for all costs associated with cleaning up the yards at Property A and Property H, and changing locks at both properties to prevent the husband from re-entering either or both properties in the sum of $506.00

   2. That the husband pay compensation/restitution for expenses associated with the storage of the husband’s belongings and cars and car parts at (omitted) Self Storage in the sum of $1591.50

   3. That the husband pay to me care of my solicitor indemnity costs as agreed and in default of agreement as taxed in relation to the caveat placed on the title of Property A to include all costs associated with the caveat including attendances on the real agent, the Registrar of Titles, the Registrar of the Federal Circuit Court of Australia and the Application in a Case filed 11 September 2014.

   4. That the husband pay to me care of my solicitor indemnity costs in relation to the failure by the husband to collect his belongings from Property A and Property H, including for attendances by my solicitor upon the husband’s solicitor, the husband and upon (omitted) Self Storage.

   5. That the husband pay to me care of my solicitor indemnity costs in relation to the Application for Possession filed 10 January 2014 and all costs of an associated with the Application including attendances on the Sherrif’s Office and the Registrar of the Federal Circuit Court.

   6. That the husband pay indemnity costs in relation to the Appeal lodged by him in the Appeal Court of the Family Court.

   7. Costs of this Response on a solicitor and own client basis and costs in relation to the husband’s Application in a Case.”

8. I note the Court has no jurisdiction to make costs orders in respect of appellate proceedings in the superior court.

9. On 15 September 2014 the Court made orders in respect to the application of the wife relevantly as follows:

   “1. …

   2. Until further order, notwithstanding any other earlier orders to the contrary including but not limited to order 15(e) of the final Orders made 29 November 2013, the entirety of the husband’s entitlement to the proceeds of sale of the investment property situate at Property H in the State of Victoria remain in an interest bearing trust account held on his behalf and there be no payment out to the husband. Payment out is to be permitted by order of the Court only but to include the payment of any costs and/or damages and/or expenditures necessary as a result of the husband’s conduct orders made, past, present and future and made against the husband in favour of the wife.

   3. The husband to file and serve any response and affidavit in support within 30 days hereof.

   4. The husband’s Application in a Case filed 12 September 2014 is dismissed.

   5. The wife’s costs of this day are fixed in the sum of $1,500 to be paid out of the monies held in trust on behalf of the husband.”

10. On 6 February 2015 the Court ordered that monies be paid out to the husband. By consent, order number five of those orders was as follows:-

    “5. Order 2 of the Orders made 15 September 2014 be varied such that the husband’s solicitor be paid out, for payment to the husband, the sum of $135,000 of the monies invested on behalf of the husband. Such monies to be made available to the husband’s solicitors on 16 February 2015.”

11. There was agreement between the parties that the remaining sum of approximately $65,000 payable to the husband be kept in trust on behalf of the husband to meet any costs ordered with respect to the wife’s application of 15 September 2014, which include the wife’s reserved costs on that application of 6 February 2015; the substantive application costs of the final hearing which concluded by final hearing on 21 August 2015; together with any orders that might be made consequent upon the operation of order number 15(e) of the orders of 29 November 2013, and order 2 of the orders made on 15 September 2014.

12. As at the 31 August 2015 the amount of $9,612.82 was held in the Solicitors for the wife trust account on behalf of the husband. Such monies were not placed on term deposit in order to have accessible some funds to meet ongoing costs orders. The balance of the husband’s property orders monies was in the sum of $66,489.05 on that date and invested on term deposit with the (omitted) Bank.

13. On 21 August 2015 the Court heard the wife’s application for the husband to pay for the incurring of unnecessary legal costs by the wife together with a payment of restitution and/or compensation by the husband arising from the operation of the orders of 29 November 2013 and 15 September 2014. Such application also sought payment of costs reserved by order of the Court on 6 February 2015, and payment of costs in relation to the substantive proceedings then before the Court. Following the hearing, each of the parties filed further written submissions, the husband on the 28 August 2015 and the wife on 31 August 2015. The wife relies on revised submissions subsequently filed by her but on 31 August 2015. That is acceptable to the Court. All submissions were filed with the leave of the Court and it was necessary for the Court to be appraised of the balance of monies held in trust on behalf of the parties as provided in the revised submissions. No breach of procedural fairness to the husband ensues.

14. In respect of this proceeding:-

1. the wife relied upon the following evidence:-

   a)the wife’s response to an application in a case filed on 15 September 2014;

   b)affidavits of the wife sworn on 15 September 2014; 1 May 2015;  and 18 May 2015;

   c)affidavits of Jeanne Clare Audas Gorman affirmed on 15 September 2014; 15 December 2014; and 24 June 2015;

   d)affidavit of Mr D, (omitted), sworn on 30 April 2015;

   e)affidavit of Mr J, (omitted), sworn on 30 April 2015; and

   f)affidavit of Ms P, costs consultant, sworn on 15 December 2014;

2. the husband relied upon the following evidence:-

   a)affidavits of the husband affirmed on 15 December 2014; 1 May 2015 and 4 May 2015; and

   b)affidavits of the husband’s father, Mr M affirmed on 1 May 2015 and mother, Ms E affirmed on 1 May 2015.

   I note specifically the husband had no application before the Court. The husband was ordered, on 15 September 2014, to file and serve any response within 30 days. He did not do so. He opposed the orders sought by the wife. Each of the husband and wife were cross-examined as were Mr D and Mr M.

1. There was also tendered by the wife in evidence and marked exhibit “K1” the Victoria Police response dated 22 July 2015 to the wife’s Freedom of Information request received by Victoria Police on 10 July 2015. Such request was for documents in relation to property damage at the former matrimonial home in Property A between May 2013 and 25 February 2014. Such documents provided evidence supportive of the wife’s evidence that the husband was charged in respect of property damage as follows:-

   “The accused at Property A between May 2013 and February 25^th 2014 intentionally and without lawful excuse did damage property namely Walls of premises Property A belonging to Ms KEDIS and valued at Unknown value.”

   In addition the husband was charged with contravening a Family Violence Final Intervention Order on 27 February 2014. Some parts of the evidence supporting the charges was that on 26 February 2014 from approximately 9:00pm onwards, and during the following two and a half hours, the husband sent three text messages to the wife in breach of a Family Violence Intervention Order. The second text message relevantly said “regarding the property which is in the garage tell your dad I got cameras set up like shifty.” The third text message read “you will have a lot of issues regarding property I promise you this 100 percent.”

   The husband was incarcerated between 28 February 2014 and 30 August 2014 as a result of the hearing of those contravention charges and the court findings.

2. The Court is satisfied that on 25 February 2014, when the wife and her real estate agent attended upon the former matrimonial home following the husband’s eviction by the Sheriff from same, they both observed extensive damage to the walls of the various rooms of the home. The wife reported such damage to the (omitted) Police. The (omitted) forensic team attended upon the former matrimonial home to take photographs of the damage. Such photographs were before the Court in evidence. The damage was caused by large footprints and by the use of something likened to a baseball bat being applied to break (with force) plasterboards, causing approximately 18 large and unsightly holes in the walls. The husband admitted in the Magistrates Court at Dandenong on 27 February 2014 that he had put holes in the kitchen walls, but denied further damage.

3. Reasonable repairs for the damage sustained to the walls of the former matrimonial home were in the sum of $1,678. The husband’s sworn assertion that the house was not damaged, and that there was no requirement for plastering work is not credible and is inconsistent with the evidence he gave earlier as described in paragraph 16 above. Further, the evidence before the Court by the wife, in tendered documents, by Mr D and by the husband and his father is to the contrary. The husband and his father gave evidence in these proceedings that damage was occasioned to the walls, but in November 2013, and whilst they were absent from the former matrimonial home attending the Court hearing of November 2013. The husband’s evidence was that this damage occurred on the 12^th or 13^th of November 2013. He then indicated it could have been on the 13^th, 14^th or 15^th November 2013. His father’s evidence was that it occurred on the first day of the final hearing in November 2013, namely the 13^th November 2013. The husband agrees he made no mention of this extensive damage to the former matrimonial home to the Court during the then running of the proceedings. The valuer valued the former matrimonial home on 14 November 2013. In that valuation, the valuer says “the dwelling appears in reasonable condition internally with no necessary repairs required.” The husband made no report to Victoria Police as to damage to the property by alleged unknown intruders in November 2013. The Court concludes the husband and his father were not witnesses of truth and their evidence cannot be relied upon. To the extent the husband’s mother adopts the evidence of her husband, her evidence in this regard is rejected. The Court accepts that the husband perpetrated this damage prior to his eviction from the former matrimonial home. The wife then reasonably incurred the services of a security guard to protect both the former matrimonial home and the investment property from being further damaged by the husband. The cost of same was $737.50 paid to (omitted) on 20 May 2015.  

1. Mr D gave evidence in the proceedings. He is a (occupation omitted). He was an impressive and credible witness. He was retained to change the locks at the former matrimonial home and the investment property also being a necessary consequence of the husband’s conduct (including his refusal to provide the keys to the real properties). He did so and rendered reasonable invoices, paid in the total sum of $506 for the work done. Mr D was also retained to perform repairs to the former matrimonial home in July 2014. He undertook rectification works of the damaged internal walls and rebuilt the brick front wall near the former matrimonial home’s entrance. The total cost was $2,178 of which a total of $500 was applicable to repairs to the front fence of the former matrimonial home.

2. At the time of the final hearing on 29 November 2013, the front masonic fence of the former matrimonial home required repairs as referred to on page 9 of the valuation certificate of Mr A. Repairs were performed as described in the preceding paragraph in about July 2014. The orders of 29 November 2013 did not provide for there to be a further adjustment between the parties in respect of this expenditure. The wife was to receive the property in the state, and at the value it was, as provided for in the valuation of Mr A dated 14 November 2013. That is, the valuation included a consideration of the then state of the front fence:-

   “The current condition of the dwelling is semi-modern internally being renovated within the last 15 years however externally would benefit from a general tidy-up/maintenance” (page 11)

   (the maintenance was a reference to the front fence on page 9 of the valuation).

   There should be no payment from the husband to the wife in respect of repairs to the front fence. The husband may have damaged it further but there is no evidence before the Court to make that finding, and indeed the wife does not specifically raise any damage claims beyond the state of the fence in November 2013.

3. As described in his affidavit sworn on 30 April 2015, Mr D’s further  evidence was as follows:-

   “3. I was retained to arrange the removal of the Respondent’s personal items in the garage and carport from the matrimonial property to the storage facility (omitted) Self Storage in (omitted) on or about 24^th July 2014. In addition to his personal items, the Respondent’s cars, trailer, boat and chassis were transported to the said storage facility. The storage facility does not permit gas bottles to be stored. I read the BOC tag on the gas bottle and took it to BOC Gas and Gear in (omitted) to be stored there.”

   The total cost of this transportation work was $2,123.00.  Again it was necessary work and an expense caused to the wife consequent upon the husband’s actions, being his failure to vacate the former matrimonial home and remove his property from the parties’ real properties. As a response to the necessary work undertaken by him, Mr D was threatened by the husband whom accused him of the theft of his belongings. The email forwarded by the husband to Mr D of 19 October 2014 which is in evidence before the Court is both intimidating and threatening.

4. Mr J’s unchallenged evidence is that (omitted) Self Storage was retained on or about 24 July 2014 to store the husband’s items. Between that date and the 8 September 2014 the husband’s property remained in storage. The reasonable costs of same were $1,591.50. The wife was required to meet the payment. The husband’s adverse conduct caused this further expense.

5. In his affidavit of 4 May 2015, the husband deposed to various property items including tools, car parts and chattels belonging to him being allegedly stolen during the period of his incarceration between approximately January 2014 and 30 August 2014. Thereafter he gave evidence as to various items of his property being damaged by the wife and/or Mr D. I accept the evidence of the wife and Mr D that none of the husband’s property was stolen and/or damaged by them and nor did the wife make any admission as to same to Mr D as alleged by the husband. The husband was not a credible witness. Such assets were not so itemised by him in the property proceedings. The husband was residing in the former matrimonial home until his eviction on 25 February 2014. He was not incarcerated until 28 February 2014. By earlier orders of the Court the husband should have removed all such items from the investment property to allow for its immediate sale and from the former matrimonial home to provide vacant possession to the wife. He failed to do so and his personal property, cars, tools and other equipment was required to be removed by Mr D, the wife and the husband’s father and others. The evidence of Ms Gorman sets out the extensive attempts made by the wife and her Solicitor to have the husband, by that time incarcerated, so via his agents, remove the husband’s belongings from both the former matrimonial home and the investment property. Correspondence from the wife’s Solicitor continued over months. No real outcome was achieved other than the incurring of significant legal costs to the wife. The correspondence commenced on or about 13 May 2014. It continued until 12 September 2014. The wife repeatedly sought that the husband arrange for collection of his belongings, including cars and car parts. The husband’s father and others attended on one day and removed some of the items including two cars left at the investment property. I accept the wife’s evidence that she “permitted them to take everything that day and they didn’t”. The wife provided various deadlines for the removal of the husband’s property. The removal was imperative as she was attempting to sell both the investment property and the former matrimonial home.

6. The husband’s claim that the wife refused to allow his parents to collect his personal belongings from the former matrimonial home is plainly not true on the evidence before the Court. In fact, the wife was requested by the husband’s Solicitor to grant to his parents extensions of time for them to make arrangements for removal of the husband’s items. The wife did so on at least one occasion and otherwise provided the husband with ample notice of her intention to place in storage his items if not collected. Ultimately they failed to attend further. The wife’s settlement of the former matrimonial home was delayed by the husband lodging a caveat, wrongly, against the title to the former matrimonial home. The prospective purchaser also indicated to the wife that they would not settle the purchase of the former matrimonial home unless the husband’s property was removed. To that end, the wife’s Solicitors sent a letter to the husband’s Solicitors on 3 September 2014 requesting the removal of additional belongings of the husband from the former matrimonial home. That letter advised that the items had to be removed by 11 September 2014, and that the gate would be unlocked to allow entry to the property. The wife’s evidence which I accept as to this part of the husband’s furniture was as follows:-

   “16. I left the furniture which was to be retained by the husband pursuant to the final orders, in the former matrimonial home as it saved me the additional costs of storage and the children and I were able to use the furniture in the meantime until collected.

   17. My solicitor has since the time the husband was in jail been writing to him and to his solicitor seeking that furniture and other belongings left in the property be collected by him.

   18. I also seek an order for costs incurred by my solicitor as a result of being required to correspond extensively with the husband, his solicitor, the estate agent and the solicitors for the purchaser in relation to the removal of the furniture and belongings. I am advised by my solicitor and believe that in the days immediately preceding the settlement of the sale neither correspondence to the husband's former solicitor, or to the husband or to his parents received any response to the request that the husband remove all of his belongings still remaining at the former matrimonial home.

   19. It was a matter of concern to me that the husband still had not collected the furniture and other belongings still in the former matrimonial home. On Saturday 13 September I received a call from the real estate agent, (omitted) of (omitted) Real Estate  who told me that, the buyers of the property would not proceed with the settlement if the husband's belongings were left in the premises. I was told that if the items were not removed by this weekend the purchasers would pull out of the contract.

   20. As a result of the call from the agent, I asked my sister to send the husband a text message advising him that all his belongings were going to be removed from the premises. We told him that the items were being put out on to the front lawn and could be collected at 5.30 pm.

   21. The husband responded by forwarding my sisternine (sic) text messages but did not undertake in any text message to remove his property.

   22. My sister forwarded five additional short text messages to the husband repeating her request that the husband to collect the furniture. Annexed hereto and marked with the letters "K6" are copies of the text messages between my sister and the husband.

   23. My sister and I remained at the former matrimonial home until 7.30 pm and the husband did not come to collect his property. I left a sign on the furniture which said "this is private property do not touch".

   24. I requested that a neighbour keep an eye on the front lawn and the husband's property and requested that she call me if there was any one hanging around.

   25. On Sunday 14 September 2014, the neighbour sent a message and advised the husband came at midday together with a few men and a Budget rental truck and they removed the husband's property.

   26. I am aware the husband also went around the back and removed an outdoor table and chairs left in the back garden on the decking.”

   (from the wife’s affidavit sworn 15 September 2014)

7. The husband’s behaviour did not cease. He failed to comply with orders and to co-operate with the wife. The necessary conveyancing fees of $6,948.07 in respect of the sale of the investment property was necessitated as to quantum in large part by the husband’s destructive and obstructive behaviours; the need to remove caveats lodged by his three solicitors; and a further caveat lodged by his mother. This cost was borne by the parties.

8. In correspondence dated 2 June 2015, the wife’s Solicitor advised the husband’s Solicitor, Mr Mulligan, relevantly as follows:-

   “Re: Costs of conveyancing for Property H

   I refer to paragraph 22 of the affidavit of Mr. Kedis sworn on 1^st May 2015 regarding my costs in relation to the conveyancing file of Property H. Mr Kedis had 3 previous solicitors and each had lodged a caveat over the said property. Approximately 20 attendances were required between this office and those solicitors in order to arrange Withdrawals of Caveats to be handed over at settlement. These attendances and a number of other difficulties caused the conveyancing costs to increase over and above the standard conveyancing costs.

   Furthermore, Mr. Kedis from the prison had his mother lodge a legally unsound caveat in the morning of the day settlement was to occur. This caused difficulty at the settlement and for a short period thereafter. This incident also caused the costs to be increased as did a number of difficulties caused by Mr. Kedis’ behaviour. These are all detailed in the lengthy narration you have already received.

   Please advise if it is necessary to have the bill prepared in taxable form. If so, I require reasonable notice for my Costs Consultant to prepare such bill.”

9. The husband sought to maximise the expenditure of the wife, and the degree of difficulty for her, in putting into effect the final orders of the Court of 29 November 2013. Further examples on the evidence of the wife are as follows:-

   “9. The husband also failed to maintain the garden and lawn. It would appear the grass had not been cut in the two years he was occupying the former matrimonial home. It was up to my waist in February, when I obtained possession of the former matrimonial home. As well as failing to maintain the rest of the garden he had left rubbish lying around the yard. This included scattered bricks, long beams of timber and other assorted rubbish. I engaged a gardener to clean up the garden and cut the lawn. The gardener worked for two whole days and this cost $650. Annexed hereto and marked with the letters “K2” is a copy of the invoice from the gardener, which was paid by me. I was reimbursed from money held in trust by my solicitor.

   10. The front and back garden at the investment property, were left in a mess. They were littered with sinks, tiles, tap handles, buckets full of off-cuts of tiles and other assorted items from the works undertaken by the husband. There was other general rubbish including car parts like transmissions, tyres and wheels. The cost for removing the rubbish from the front and back yard were $165 and $385 respectively and were paid from monies held in trust by my solicitor. Annexed hereto and marked with the letters “K3” are copies of tax invoices for rubbish removal from the investment property.”

   (from the wife’s affidavit sworn 15 September 2014)

Conclusion

1. The Court has power in s.80 of the Act, in exercising its powers under Part VIII of the Act to do any or all of the matters set out therein. Section 80 is as follows:-

   “General powers of court

   (1) The court, in exercising its powers under this Part, may do any or all of the following:

   (a) order payment of a lump sum, whether in one amount or by instalments;

   (b) order payment of a weekly, monthly, yearly or other periodic sum;

   (ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

   (c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

   (d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e) appoint or remove trustees;

   (f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

   (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

   (i) impose terms and conditions;

   (j) make an order by consent;

   (k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

   (l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

   (2) The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

   (3) The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

   (4) If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.

   (5) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.

   (6) Subsections (4) and (5) do not limit paragraph (1)(d).”

2. The Court has power pursuant to s.117 of the Act as follows:-

   “(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (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.

   (3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

   (4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

   (a) a party to the proceedings has received legal aid in respect of the proceedings; or

   (b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

   the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.

   (4A) If:

   (a) under section 91B, an officer intervenes in proceedings; and

   (b) the officer acts in good faith in relation to the proceedings;

   the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

   (5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”

3. The husband has already paid costs ordered in the sum of $13,486.50. The conveyancing costs associated with the sale of the investment property were in the sum of $6,948.07. These costs included unnecessary expenditure consequent upon the husband’s behaviours as described above. Each of the disbursements required to be paid as described in these reasons (save for the front fence of the former matrimonial home) were a direct result of the husband’s adverse conduct and were required to be paid by him. The wife claims an amount of $26,514.72 in respect of additional legal costs incurred not covered by previous awards of costs in accordance with the Court’s scale of costs. The wife also has outstanding a costs certificate for costs payable by the husband to her in the sum of $3,072 in relation to proceedings in the Family Court of Australia. The husband declined to attempt to resolve that matter, or to agree to payment in that sum, or indeed any sum, during the currency of these proceedings. Further costs will again be incurred by the wife in proceeding to taxation and order. These proceedings were necessitated by the husband’s failure to comply with orders and by his conduct. They required the wife to put before the Court considerable evidence given the husband’s refusal to concede matters that he should have, and given the husband’s conduct, which lead to disbursements and additional costs being incurred. The legal costs to the wife in the evicting of the husband from the former matrimonial home; rectification of the damage done to the home; the conveyancing costs including the settlement of sale of both the investment property and the former matrimonial home; and the attempts to obtain the removal of the husband’s belongings amongst other matters canvassed herein, are set out in the affidavit evidence of Ms Gorman and Ms P. The award of costs is a discretionary matter. The Court determines a further sum of $10,000 should be paid to the wife for additional costs incurred by her in respect of the husband’s conduct and failure to comply with orders of the Court together with a further sum of $10,000 ($20,000 in total) in respect of the costs of this proceeding.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  4 December 2015