Kendall and Karas and Ors

[2014] FamCA 749

FAMILY COURT OF AUSTRALIA

KENDALL & KARAS AND ORS [2014] FamCA 749

FAMILY LAW – PROPERTY – Contravention application – Where the wife alleges the third respondent failed to comply with an order to provide a complete list of payments received by the third respondent in relation to the proceedings – Where the third respondent provided a list of fees in compliance with the order – Where the wife alleges the list of fees paid to the third respondent is incorrect – Where the wife’s contravention application is dismissed – Where leave is granted to the third respondent to make an application for costs.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kendall

1ST RESPONDENT: Mr Karas

2ND RESPONDENT: Ms Karwood

3RD RESPONDENT: Ms Eberson

4TH RESPONDENT: Mr Staunton

FILE NUMBER: SYC 7163 of 2010

DATE DELIVERED: 12 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 12 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pender

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT: Mr Bell

SOLICITOR FOR THE 1ST RESPONDENT: B Bilinsky & Co

COUNSEL FOR THE 2ND RESPONDENT: 2^nd Respondent in Person

SOLICITOR FOR THE 2ND RESPONDENT:

COUNSEL FOR THE 3RD RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE 3RD RESPONDENT: Horowitz & Bilinsky

COUNSEL FOR THE 4TH RESPONDENT: No Appearance

SOLICITOR FOR THE 4TH RESPONDENT:

Orders

1. That the wife’s contravention application filed on 11 December 2013 is hereby dismissed.

1. That leave is granted to the 3^rd respondent to make an oral application for costs today. 

2. That leave is granted to the applicant to file any affidavits dealing with the issue of costs and submissions in relation to the costs issue in writing by on or before 2 June 2014 and, upon receipt of those, the costs judgment stands reserved.

3. That any outstanding case applications are to be stood over for directions before the Registrar on 19 May 2014.  

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7163 of 2010

Ms Kendall

Applicant

And

Mr Karas

First Respondent

And

Ms Karwood

Second Respondent

And

Ms Eberson

Third Respondent

And

Mr Staunton

Fourth Respondent

REASONS FOR JUDGMENT

1. This is the hearing of a contravention application filed by the wife on 11 December 2013.  The charge that was made against Ms Eberson was that she breached an order made on 18 September 2013 to provide, within seven days in writing, details of the payments received by her in respect of the proceedings being Ms Kendall and Mr Karas identifying the payees, that were not the subject of the letter dated 13 May 2013.

2. The alleged charge is that Ms Eberson received $66,807 by way of payments from her client but has only disclosed receipts of some $47,150.

3. It appears from a costs disclosure agreement dated 15 April 2013 that, at least as far as that document is concerned, Mr Karas had paid Ms Eberson $66,807 by way of fees and that $6,064 remained outstanding. 

4. On 13 May 2013 Ms Eberson provided a list of fees paid by her client since March 2012 to date.  Attached to that was what appears to be a ledger which shows six receipts and a number of transfers.  I am informed by Ms Pender that they total $66 807. 

5. On 23 September 2013 Ms Eberson’s lawyers forwarded a list of payments received.  There are 18 payments listed.  The last two payments are from a person described as BB.  In the list that was provided the first of those payments, the sum of $42 000, was described as being made on 10 May 2013. 

6. On 26 February 2014 Mr Bilinsky provided a document which sets out what was said to be a correction of some errors in the original list saying, somewhat cryptically, the last two payments by cheque from BB should be dated 10 May 2013 and 13 June 2013 respectively not 2012.

7. Ms Pender has tendered, as part of her case, an amended list with some comments made in handwriting. The cheque for $42,000 which, according to the typeface appears to have been received on 10 May 2013, has a handwritten alteration showing it to be received on 13 June 2012.  That is of some significance. 

8. The applicant says there is a prima facie case because if one looks at the original list of 16 payments that were received by Ms Eberson up to May 2012 they total $47,150. This cannot be reconciled with the $66,000 referred to in the costs disclosure. 

9. On the other hand, if the $42,000 was received in 2012 there is no such discrepancy.  In those circumstances, however, there may be, as Ms Pender pointed out, a discrepancy as to the amount remaining in trust. 

10. I do not know whether or not the costs disclosure is accurate or not but given that the most complete evidence is that contained in the document tendered by Ms Pender showing the date of the BB cheque for $42,000 being received in June 2012, the court cannot be satisfied that it must follow that the disclosure of Ms Eberson by Mr Bilinsky was incomplete.  It may be inaccurate but it does not of itself require a finding that there were further receipts which have not been disclosed.

11. Accordingly I am not satisfied that any prima facie case for breach of the charge has been established.

12. The contravention application is dismissed.

13. I should add Ms Pender said many times that she was not seeking any punitive measures but the application was designed to obtain further and better disclosure.   Had an application been framed in those terms it may well have been considered differently. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 May 2014.

Associate: 

Date:  10 September 2014