Kehoe & Seden
[2021] FedCFamC1F 136
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kehoe & Seden [2021] FedCFamC1F 136
File number(s): SYC 7833 of 2018 Judgment of: REES J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – COSTS – Application dismissed Division: Division 1 First Instance Number of paragraphs: 16 Date of last submission: 15 October 2021 Date of hearing: In Chambers Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Solicitor for the Respondent: Coleman Greig Lawyers ORDERS
SYC 7833 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KEHOE
Applicant
AND: MR SEDEN
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS:
1.That the wife’s application for costs of the hearing on 1 October 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Seden & Kehoe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Financial proceedings between Ms Kehoe (“the wife”) and Mr Seden (“the husband”) were listed before me on 1 October 2021.
The issues are complex and involve third parties and the matter has been referred for inclusion in the Major Complex Financial Proceedings List.
The instant application concerns costs as between the wife and the husband and the third party has been excused.
The application which was listed on 1 October 2021, was the wife’s application to enforce orders made on 2 March 2021 as varied on 10 May 2021 which provided, inter alia, for the appointment of a single expert to value a group of companies in which the wife asserts that the husband has an interest.
The wife’s application was sealed and given a listing date on 10 September 2021 and could not have been served upon the husband before that date.
The husband had not complied with the provisions relating to the appointment of the single expert valuer.
At 2.20 pm on 30 September 2021, the husband filed a response to the wife’s application, supported by three affidavits, one sworn by him, one sworn by his accountant and one sworn by a qualified business valuer. The husband sought the discharge of the relevant orders for the valuation of the corporate entities and that the matter be listed for a discrete hearing to determine what interest the husband in fact has in a number of entities. The husband’s position was that it would then be necessary to value only those entities in which he was found to have an interest.
Senior counsel for the wife was unable to deal with the husband’s response and indicated that the wife would seek to file material in relation to the orders now sought by the husband. In those circumstances, the matter was unable to proceed and directions were made to enable the wife to file material and for the matter to be listed at a time to be fixed.
The wife now seeks an order that the husband pay the costs thrown away by the husband’s late filing of that response.
That application is opposed by the husband in circumstances where, as the husband deposed, it was the understanding of those representing him that the matter was listed for directions and not for hearing.
On 16 September 2021, my associate sent an email to both parties stating:
The above matter is listed for directions before the Honourable Justice Rees at 9.30 am on 1 October 2021. The hearing will be conducted electronically…
Following receipt of that email, the husband’s solicitors wrote to the wife’s solicitors outlining the husband’s position that the issue of the husband’s interest in the entities should be discretely heard before the valuation process commenced.
The wife’s solicitors did not respond.
The husband’s response was filed on 30 September 2021, within the time prescribed by the Rules for filing a Response to an Application in a Case.
It was not unreasonable for the solicitors for the husband to assume that the matter was listed for directions only, since that is what both parties were told.
In those circumstances, it is not appropriate to make any order for costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Dated: 18 October 2021
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