Keye and Keye

[2007] FamCA 374

FAMILY COURT OF AUSTRALIA

KEYE & KEYE [2007] FamCA 374

FAMILY LAW - PROPERTY SETTLEMENT - Unopposed application by husband for lease payments to be met by him from invested funds held in trust – Application successful – Costs ordered – Costs fixed

Family Law Act 1975
Family Law Rules 2004

In the Marriage of Kohn (1977) 30 FLR 175 at 177
Brown v Brown (1998) FLC 92‑822 at 85,334

APPLICANT: Mr Keye

RESPONDENT: Mrs Keye

FILE NUMBER: MLF 660 of 2006

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.J. Goddard

SOLICITOR FOR THE APPLICANT: Goddard Elliott

THE RESPONDENT: No Appearance

Orders

1. That the solicitors for the Applicant Husband be and are authorised to pay lease instalments as and when they fall due in relation to the Volvo motor vehicles in possession of the Husband and the Wife and do so from funds held in trust for the parties being the proceeds of sale of real property.

2. That the Wife pay the Husband’s costs of and incidental to his application in a case filed 19 April 2007 on a party / party basis, such costs be fixed in the sum of $1,630.00 inclusive counsel’s fees and be paid by the Wife at the determination of the outstanding applications for alteration of property interests. 

3. That my reasons for judgment this day be transcribed as a matter of urgency and when transcribed the original be placed on the court file and a copy provided to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 660 of 2006

MR KEYE

Applicant

And

MRS KEYE

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. An application has been made by the husband, filed on 19 April 2007, in which he seeks that his lawyers, Goddard Elliott, be authorised to pay lease instalment payments, in relation to two Volvo motor vehicles one of which is in the possession of each of the parties, out of monies which are held in trust for the parties representing the proceeds of sale of real property.  The husband also seeks that the wife pay the costs of this application. 

2. This matter is listed in the judicial duty list today.  I note that on Thursday of this week, being 3 May 2007, the parties have a pre-trial conference at 9:30am.  When I was looking at this matter prior to coming into court, it disturbed me somewhat that the parties would be at court on two occasions in one week.  Enquiries which I caused to be made revealed that the parties could have conducted their pre-trial conference before Registrar Lethbridge had they been in a position to do so up until 11:00am this morning thereby obviating the need to come back on Thursday.  However, for reasons which I will turn to in a moment, that is not feasible. 

3. The proceedings are between the husband and the wife.  However the wife has not attended court today to respond to this application.  There was no appearance by or on behalf of the wife and she was called at the door of the court at 10:20am.  I am satisfied that the husband’s application and supporting affidavit material were served on the wife by facsimile on 20 April 2007 and

   
   

   I am so satisfied by the affidavit of service sworn by Andrew John Goddard. 

4. The husband’s application makes it clear, on page 4 of the document, that in the event that a respondent like the wife opposes the orders sought in the application, she must file with the court a response, being a Form 2A, and file an affidavit setting out the matters upon which she relies.  Enquiries made on Casetrack reveal that the last document filed by or on behalf of the wife was a notice from her previous solicitors that they ceased to act on her behalf.  That was filed on 19 March 2007, there is nothing since. 

5. So, I am satisfied of service and I am satisfied that the wife has been accorded procedural fairness in relation to this application.  I will proceed with the husband’s application on an unopposed basis. 

6. Mr Goddard appears as counsel on behalf of the applicant husband.  He has told me from the bar table that the husband and wife each drive a Volvo motor vehicle, each a subject to lease.  The wife, in her documents filed in the principal substantive proceedings as recently as December 2006, indicated that she wants to retain the car - the Volvo motor vehicle, which she drives as part of the final alteration of property interests between herself and the husband and that she will indemnify the husband in relation to all encumbrances affecting the vehicle. 

7. I am advised that, to date, the lease payments have been met from the husband's resources - in particular a certain account.  I am advised that the account is now in insufficient funds to meeting the ongoing obligation hence the husband is seeking that payments be made out of monies which are held on trust.  Those trust monies are part of the property divisible between the parties.

8. The husband wants to continue to drive the vehicle in his possession.  Part of the orders which the wife seeks indicates that she wants to drive the vehicle of which she has possession.  If she did not want to do so, she could have come to court and told me that. 

9. It is appropriate to avoid repossession of the vehicles and/or a sale of the vehicles at auction or through some realisation method where I am satisfied the vehicles may not be marketed as best they can be.  In that respect, the orders sought by the husband will have the effect of preserving property which will be available for distribution between the parties. 

10. As this matter has been allocated at the pre-trial conference this week, it is likely to come on for hearing in the near future.  It follows that the relief that

    
    

    I will order today will not last for the long term; it will last only until the determination of the matter at a final hearing. 

11. In making the orders sought by the husband, I rely on the submissions made by Mr Goddard.  I rely on the fact that were there any contrary indications to me making the relief sought and which he considered ought to be drawn to my attention, he would have done so. 

12. I am satisfied in the circumstances that it is proper to make the orders sought by the husband and I will do so.

DISCUSSION

1. The applicant husband makes an application for the wife to pay costs of and incidental to the application.  I am satisfied that the wife has notice of that application, because it was contained in the document with which she was served. 

2. Costs are claimed in the sum of $987.91 solicitor’s fees and $770 for counsel's fees. I was referred to the various items appearing in Schedule 3 to the Family Law Rules 2004 for fees for lawyers' work done. 

3. The solicitors' costs claimed where they relate to party - party costs appear, if anything, to be understated and counsel's fee is comfortably within the range of short attendances - for example, procedural hearings and summary hearings taking less than three hours and reflected in item number 203 of part II of schedule 3.

4. Disregarding the items of costs which I think fall under the category of solicitor/own client costs, I calculate the amount of solicitors costs in the sum of $860 and counsel's fees in the sum of $770.  That is a total of $1630. 

5. I turn now to a determination of whether there ought be an order for costs. 

6. Section 117 of the Family Law Act 1975 contains the general rule that each party to proceedings under the Act shall bear his or her own costs.  The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose (In the Marriage of Kohn (1977) 30 FLR 175 at 177). However, the court retains a discretion to make an order for costs if it is in the opinion that there are circumstances that justify that course and that it would be just to do so.

7. In considering whether to make an order, the court must have regard to the matters set out in s.117(2A), and I do so. The weight to be attached to any one of the considerations in subs.(2A) is wholly discretionary. While no single factor outranks any other, there is nothing to prevent one of them from being the sole foundation for a costs order. As Kay J observed in Brown v Brown (1998) FLC 92‑822 at 85,334:

   In many cases there will be an outstanding feature ... that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other section 117(2A) considerations.

8. In this matter I have not been addressed in detail on the matters under s.117(2A). I note, however, that the applicant has been wholly successful in the application. The wife has been wholly unsuccessful in the application. This is of relevance under s.117(2A)(e) and it is a factor which must weigh very heavily in favour of the applicant being able to recover costs on a party - party scale.

9. I take into account that if the wife wanted to address me on other matters in s.117(2A) she would be here to do so. She is not. I doubt that this family falls within the very small category of families before this court whom the costs associated with proceedings are of no concern.

10. I take into account also, pursuant to s.117(2A)(c), the conduct of the parties in the proceedings in relation to the proceedings. The wife has failed to attend court today. Earlier, she said that she would be opposing the orders. That must have influenced the decision of the husband’s practitioners to retain counsel. That is an expense that could have been reduced had the husband understood that the matter would in fact be unopposed.

11. I am satisfied that it is a matter in which costs should be paid by the wife. 

12. I have considered whether the wife ought be heard on the quantum of costs; and the way of doing that would be to order that they be costs as agreed, and, in the absence of agreement, subject to an assessment or taxation by the court in accordance with the relevant rules of court. However, I bear in mind the principles of proportionality and the main purpose of the Family Law Rules, being

    "to ensure that each case is resolved in a timely manner at a cost to the parties and to the court that is reasonable in the circumstances of the case". 

13. The ambit of the dispute and the amount of the costs claimed is a compelling reason to fix the costs today rather than to permit the matter to go on to taxation or assessment, thereby incurring further costs for both parties and I will do so. 

14. I note that the next step in the court procedure is a pre trial conference on Thursday of this week, 3 May 2007.  I trust that these reasons for judgment will be available by that time, and a copy should be on the court file. 

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate: 

Date:  2 May 2006

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KEYE & KEYE