Kouper and Kouper

[2009] FamCA 443

FAMILY COURT OF AUSTRALIA

KOUPER & KOUPER [2009] FamCA 443

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Kouper

RESPONDENT: Ms Kouper

FILE NUMBER: SYF 2332 of 2006

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wallbank

SOLICITOR FOR THE RESPONDENT: Mr Feather

Orders

1. By consent, Humphreys & Feather Pty Ltd pay from the monies maintained by them in the controlled monies account in the names of the parties an amount of $2,824.20 per month from 31 May 2009 to a total sum of $16,900 or until further order of the court, to:

   P Company,

   account number BSB:…; …/payment ref: …

   in respect of the premises known as C property in the State of New South Wales or in the event that P Company cease to be the managing agent of the C property to any other agent who might be the manager of that property from time to time.

2. The parties jointly instruct Mr O as a single expert to provide a valuation and assessment of the rental income that the parties would have been likely to have received for the property situated at and known as K, had it been available for the exclusive occupation by a tenant for the period 1 March 1998 to date and continuing to 7 September 2009 and that Humphreys & Feather Pty Ltd pay the amount of $850 plus GST from the monies maintained by them in the controlled monies account to Mr O for his costs in providing this valuation.

3. Order 2 as sought by the husband in his application in a case filed 4 May 2009 be dismissed. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2332 of 2006

MR KOUPER

Applicant

And

MS KOUPER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. It is my view that adopting a conservative approach, as I am required to do by the Full Court's decision in Harris, I cannot make an order releasing another $80,000 to the husband's current lawyers for costs and anticipated costs associated with his litigation.  If the wife is successful in her claims in the final hearing, then to make that order today would prejudice the outcome that the wife might achieve at the final hearing.  Having said that, I am in no way prejudging what the result of the final hearing might be.  But nothing I have heard today and nothing that I have read would indicate that the wife's claim was so extraordinary as to be a claim which should be dismissed out of hand without there being an ability to have that claim tested at a final hearing. 

2. I also rely on statements made by me in the discussions I have had with Ms Wallbank and I will incorporate those statements in my reasons. 

3. The lawyers for the husband say they confidently expect, the trial judge, which may not be me, will find that the claim by the wife is extraordinary.  Based upon that confidence, it is open for the lawyers of the husband to reach an arrangement with the husband which will secure their fees at the end of the day. 

4. Alternatively, there may be other lawyers that the husband can approach (if Ms Wallbank does not reconsider her position in terms of representation of the husband), who would be prepared to represent him on the basis that they would be paid at the conclusion of the case.  Ms Wallbank has already of course, as the material shows, received significant funds in terms of preparation of the case.  So a large amount of documentation for the husband has already been prepared by the husband.  If worse comes to worse, unfortunately, in this court there are cases where the parties at the end of the day have to represent themselves and do the best they can with the guidance the Court is required to give a self represented litigant. 

5. Given the case has been substantially prepared by competent lawyers, that is what will have to happen if all else fails.  I dismiss the application in relation to interim costs. 

I certify that the preceding five (5) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  27.5.2009