KINGSBURY & KINGSBURY

[2012] FamCA 40

FAMILY COURT OF AUSTRALIA

KINGSBURY & KINGSBURY [2012] FamCA 40

FAMILY LAW - COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

APPLICANT: Ms Kingsbury

RESPONDENT: Mr G Kingsbury

FILE NUMBER: MLC 5316 of 2011

DATE DELIVERED: 24 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 24 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Dandanis & Associates

COUNSEL FOR THE RESPONDENT: Mr Edward

SOLICITOR FOR THE RESPONDENT: Slater & Gordon

IT IS ORDERED THAT

1.On or before 4:00pm on 7 February 2012 the husband pay the wife’s costs of the Application filed 30 December 2011 fixed in the sum of $3500.

IT IS FURTHER ORDERED BY CONSENT THAT

2.The husband to do all things in his power and sign all documents required to:

a.   Cause E Pty Ltd (“E Pty ltd”) to place the property at … S Street, Melbourne Suburb 1 ("S Street") on the market for sale;

b.   Attend any directors meetings convened by Mr J Kingsbury and vote in favour of any resolutions required to:

i.Give effect to the sale;

ii.Give notice to the tenants of S Street to vacate;

iii.Appoint such accountant as nominated by the husband by 27 January 2012 and failing such nomination then it's nominated by the wife, as accountants for E Pty ltd with instructions to reconstruct, complete and lodge taxation returns for E Pty ltd for the 2008, 2009, 2010 and 2011 financial years;

iv.Make a distribution to each of the husband and wife of one half of the net proceeds of sale of S Street, and distribute to each one half of the capital gains attributable to the sale;

v.Distribute the income of the Mr G Kingsbury Family Trust equally between the parties for 2008-2011 inclusive.

3.In relation to the sale of S Street, the husband shall:

a.   Consent to N Real Estate being the selling agent;

b.   The reserve price at auction shall be $610,000 unless otherwise agreed between the husband and Mr J Kingsbury.

4.Reserve liberty to the parties to apply in the event Mr J Kingsbury does not agree to facilitate the sale of S Street and the distribution of the proceeds of sale in accordance with Paragraph 1.

5.The categorization of the funds received by the parties from the sale of S Street be reserved to the Trial Judge.

6.Each of the parties provide to the accountants appointed by Paragraph 1 all documents in their possession, power or control relevant to the taxation returns.

7.That the matter be listed for mention before Justice Macmillan at 9:30am on 21 March 2012.

1. That by 4 pm on 21 February 2012 the applicant file and serve upon all other parties:

   a.    an amended application setting out with precision the orders to be sought;

   b.    the affidavits of evidence in chief of all witnesses relied upon; and

   c. a financial statement that complies with chapter 13 of the Family Law Rules.

   9.That by 4 pm on 13 March 2012 the respondent file and serve upon all other parties:

   a.    an amended response setting out with precision what orders are being sought;

   b.    the affidavits of evidence in chief of all witnesses relied upon;

   c. a financial statement that complies with chapter 13 of the Family Law Rules.

   10.That no party file any further material other than as provided by these orders without leave of the Court.

   11.That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

   12.All interim applications are otherwise dismissed.

   IT IS CERTIFIED

   13. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5316 OF 2011

Ms Kingsbury

Applicant

And

Mr Kingsbury

Respondent

REASONS FOR JUDGMENT

1.In this matter, the wife, Ms Kingsbury, by her case guardian, Maria Dandanis, seeks an order that the husband pay her costs of the amended application filed 30 December 2011, fixed in the sum of $3500. 

2.By way of background, the wife, in her initiating application filed on 20 June 2011, sought interalia the sale of a number of properties owned by the Kingsbury Family Trust and properties owned by the parties in their own names.  The wife was diagnosed with Alzheimer’s Disease in 2002, and Parkinson’s Disease in 2006, and her case guardian deposes that she requires 24 hour care.  By her application, she sought the sale of properties to make funds available to meet the costs of that care.  There is a dispute as to how much is required to meet the costs of the wife’s care.  I cannot, nor is it necessary to do so for the purposes of determining this application for costs, in  circumstances, where the facts are disputed, and where the parties have entered into consent orders, determine how much the costs of her care are for the wife.. 

3.I am told by Mr Dickson, and it’s not disputed, that the interim application was adjourned on a number of occasions.  What ultimately occurred was that the parties attended a Conciliation Conference on 28 November 2011, which unfortunately did not resolve the matter, either, it would appear, on an interim basis or on a final basis.  On 25 November 2011 and prior to that Conciliation Conference, the solicitors for the wife forwarded a letter to the solicitors for the husband in which they say as follows: 

We refer to the above matter and previous correspondence.  We refer to the recent round table conference which took place in this matter, and to the extant interim application of our client in relation to interim sales and/or satisfaction of loan accounts.  What properties does your client seek to retain as part of the overall settlement?  Your client’s response does not specify the orders that he is seeking.  Now that valuations have been received, your client should be in a position to say whether he seeks to retain all of the properties and pay our client out some or none.  We await your response. 

4.That is exhibit MD3 to the affidavit of Maria Dandanis sworn on 22 December 2011.  The husband has not amended his response to identify the properties he wishes to retain, nor was any response received to that letter.  On 28 November 2011 following the Conciliation Conference, the wife, again, through her case guardian, offered to settle the matter on the basis of the sale of a unit, being one of six units at G Street, Melbourne Suburb 2 (“G Street”), and it was proposed, in that offer of settlement, that the proceeds of sale be divided equally by way of a part property settlement. 

5.Although the wife’s application was not filed until 30 December 2011, and that, I note, may well be because it was delivered to the Court late on 23 December 2011 and may not have actually been formally filed until the Court reopened, it was served upon the husband’s solicitors late on 23 December 2011, shortly before his office closed for the Christmas break, together with a letter advising him that the wife’s solicitors’ office would not be reopening until 16 January 2012.  On 20 January 2012, the husband filed his response, seeking orders that provided for the sale of the property at S Street, and the equal division of the proceeds of sale by way of a part property settlement. The orders I am to make by consent today provide for the sale of that property. 

6.In summary, Mr Dickson on behalf of the wife submits that the application filed 30 December 2011 was necessitated by the husband’s failure to respond to that letter of 25 November 2011, or the offer of 28 November 2011, and that it was not until Friday 20 January 2012 the application, having been made on 30 December, and counsel having been retained for the hearing today, that there was any indication whatsoever from the husband that any of the properties could be sold. 

7.It is submitted on behalf of the husband that the offer of settlement should not be the basis of an order for costs against the husband, as it is an offer which proposes the sale of a property which is not the subject of the orders today.  In my view that does not explain why the husband did not instruct his solicitor to respond to the letter, or to respond in any way to the offer of settlement with respect to the sale of the unit in G Street. 

8.The solicitor for the husband also points to the fact that the application was not served upon him until late on 23 December 2011, that, whilst his office opened before 16 January 2012, he needed time to obtain instructions from his client, and he needed time to respond which he did, it is submitted, in a timely manner, filing the application on 20 January 2012.  That, in my view, does not explain why the husband failed to respond to the letter or to the offer, or in fact indicate his willingness to sell a property, and in fact any property until 20 January, by which time costs had already been incurred by the wife and in particular, counsel had been retained. 

9.The general rule is that each party to proceedings in this Court shall bear his or her own costs. That general rule is subject to section 117(2) of the Family Law Act 1975, which provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may make such order as to costs as it considers just. Section 117 (2A) sets out the matters the Court must have regard to in determining what, if any, orders should be made for costs, insofar as they are relevant. The weight to be given to these matters is at the discretion of the Court.

10.Whilst the wife in this case arguably has the funds to meet the costs of these proceedings, it is clear on both the husband and wife’s case that she requires substantial sums to meet the costs of her care.  The husband on his own evidence in his most recent affidavit clearly has the funds to meet any order that I am asked to make that he pay the wife’s costs.  Neither party is in receipt of legal aid, and the pool of assets in this case would appear to be reasonably substantial.

11.I am of the view that it was as a result of the husband’s conduct leading up to the filing of this application which necessitated that application.  It must have been clear to him since June, when the wife filed her first application, that she was seeking the sale of various properties and the distribution of the proceeds of sale of those properties.  He had the opportunity to specify which or any of the properties he wished to retain.  He could have, after the offer was made on 28 November, simply indicated that he did not agree to the sale of the G Street unit, but that he would agree to the sale of another unit, and it’s reasonably clear, given that he filed his amended response on Friday, 20 January, and the wife, or those acting on her behalf have consented to the orders he proposed, that had he taken steps to try and resolve the matter, it probably would have been resolved.

12.In all of those circumstances, I am of the view that I should make an order in favour of the wife for costs.  No objection is taken to the quantum of the order sought by Mr Dickson on behalf of his client, and in those circumstances, I do propose to order that the husband pay the wife’s costs, fixed in the sum of $3500. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice MacMillan delivered on 24 January 2012.

Associate: 

Date:  9 February 2012