LACEFIELD & ALGRIM - [2021] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

LACEFIELD & ALGRIM

[2021] FCCA 681

Catchwords:
FAMILY LAW – Property proceedings – application to vary final de facto property orders made by consent in August 2019 – respondent wife seeks to vary the orders such that she is able to sell chattels belonging to the husband still on her property as he has failed to collect them as envisaged by the final orders – applicant seeks to set aside the consent orders – he alleges he did not consent to the orders as he could not read them and his legal representative failed to read them to him – consideration of whether there has been a miscarriage of justice – application for indemnity costs.

Legislation:

Family Law Act 1975 (Cth), ss.90SN, 90SS, & 117

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02, 21.10, 21.15, & 21.16

Cases cited:

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Dey v Victorian Railway Commissioners (1949) 78 CLR 62

Gebert & Gebert (1990) FLC 92-137

Kohan & Kohan (1993) FLC 92-340

Lancer & Lancer [2008] FamCAFC 112

McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409

Suiker & Suiker (1993) FLC 92-436

Webster v Lampard (1993) 177 CLR 598

Applicant:

MR LACEFIELD

Respondent:

MS ALGRIM

File Number:

ADC 298 of 2017

Judgment of:

Judge Brown

Hearing date:

4 December 2020

Date of Last Submission:

4 December 2020

Delivered at:

Adelaide

Delivered on:

7 April 2021

REPRESENTATION

Solicitors for the Applicant:

Mr Kruse / Kruse Legal

Counsel for the Respondent:

Mr Anders

Solicitors for the Respondent:

Griffins Lawyers

ORDERS

That the injunction contained in Order 33 of the Final Orders made on 14 August 2019 (Final Orders) restraining the wife, her servants or her agents from disposing of the items located at the Farm and referred to in Order 20 (g) and Schedule A of the Final Orders (Chattels) be lifted.
That the wife may dispose of the Chattels however the wife sees fit provided that:
(a)The wife account to the husband for the proceeds received from such disposal less all reasonable expenses incurred by the wife in disposing of the Chattels;
(b)In the event the reasonable expenses incurred in disposing of the Chattels exceeds the proceeds received by the wife in disposing of the Chattels, the husband shall reimburse the wife for such expenses within 14 days of a demand for payment being made.
That pursuant to Order 35 of the Final Orders, the Registrar execute the transfer of registration papers on the part of the husband for each of the following vehicles, so that the said vehicles may be legally transferred to the wife.
(a)Motor Vehicle 1;
(b)Boat;
(c)Motorbike;
(d)Motor Vehicle 2; and
(e)Boat Trailer.
That the South Australian Registrar-General remove Caveat Number ... from Certificates of Title Register Book Volume ... Folios ... and ... .
That pursuant to Order 35 the Registrar execute a deed of assignment, assigning a 50% interest in the loan from the husband to Mr B, made pursuant to a loan agreement dated 2 September 2014 and described in Order 15 of the Final Orders.
The applicant de facto husband pay to the respondent de facto wife costs in the amount of eight thousand dollars ($8,000.00) within 28 days of the date of these orders.
All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 298 of 2017

MR LACEFIELD

Applicant

And

MS ALGRIM

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Lacefield and Ms Algrim were involved in a de facto relationship between 2001 and January 2017. Apart from one discrete factor, the financial relationship between them was unexceptional. The idiosyncratic factor was a major lottery win.
These reasons for judgment are directed to resolving controversies arising between them, in respect of final de facto property orders, ostensibly consensually made between them, by this court, on 14 August 2019, which factored in contribution issues relating to the win.
In general terms, these orders provided for Ms Algrim to retain the parties’ former family home and for Mr Lacefield to retain a number of designated assets, particularly automotive equipment, stored in a shed on the property. A significant self-managed superannuation fund was divided equally between them.
The order of 14 August 2019 directed that Mr Lacefield was to collect these designated chattels, which were delineated in a schedule attached to the orders, within 60 days of the date of the orders. The orders also envisaged Mr Lacefield utilising an agent to collect them.
It is common ground that Mr Lacefield has not, as yet, arranged for the collection of these items. In these circumstances, on 12 December 2019, Ms Algrim re-commenced proceedings, in this court, seeking the Court’s authority to dispose of the items in question. It being her position that the items’ continuing occupation of her shed is oppressive and she wishes to end her relationship with Mr Lacefield.
Initially, Mr Lacefield only sought more time in which to arrange for the removal of these items. It was his position that the items in question were bulky and required specialist movers to transport. In addition, he pointed to a final intervention order, to which he was the defendant and Ms Algrim was the protected person, as providing a significant impediment to the removal of the items in question.
At first blush, the issues in dispute between the parties fell within a small compass and so should have been capable of an expeditious resolution. This has not proved to be the case. Rather, the issues in contention are emblematic of an extraordinary degree of mistrust and antipathy between the parties, which has deep roots and, on Mr Lacefield’s part, is reflective of a long standing dissatisfaction with the outcome of the earlier property proceedings, which he perceives were unfair to him, particularly as they did not recognise the fact that he purchased the winning lottery ticket.
In this context, attempts to resolve the issue both through negotiation and conciliation failed. The matter was further delayed by Mr Lacefield changing solicitors, having difficulties in retaining others, and by the disruption occasioned by the pandemic crisis.
More recently, on 3 December 2020, Mr Lacefield through his recently appointed solicitor, has applied to suspend the operation of the final orders made on 14 August 2019, prior to him potentially making an application to the court, pursuant to section 90SN of The Family Law Act 1975 to vary these orders on the basis that they have been vitiated by a miscarriage of justice.
In response, it is Ms Algrim’s positon that Mr Lacefield’s application is misconceived and wholly without merit and, as such, should be summarily dismissed with costs awarded against him. It is her case that it is patently obvious that there has been no miscarriage of justice and certainly no fraud or suppression of evidence, which can be attributed to her or her legal advisors.

Background

Mr Lacefield was born in 1951. Ms Algrim was born in 1956. Prior to their relationship, each had been previously married and each has adult children. Their relationship produced no children. Mr Lacefield left school when he was 14 years of age.
Mr Lacefield has no specific skills to speak of and has not always enjoyed good health. More recently, he has worked as a tradesman. No doubt, throughout his life, he has worked hard, but there is no evidence to indicate his efforts, in the paid work force, enabled him to accrue significant assets, through his own personal exertions.[1]
[1] See Lacefield’s trial affidavit filed on 19 March 2019 at [20]
Mr Lacefield has conceded that, in 2001, when the relationship between him and Ms Algrim commenced, he owned property to the value of around $35,000, together with a motor cycle, 2 cars and his extensive collection of tools, relating to his industry employment skills.
Ms Algrim left school at 15 and, apart from a period out of the workforce, during which she was engaged in home duties, has supported herself through a variety of unskilled jobs. She too concedes that she had little property, when she commenced her relationship with Mr Lacefield.[2]
[2] See Ms Algrim’s trial affidavit filed on 27 March 2019 at [12]
During the parties’ relationship, Mr Lacefield was engaged in self-employment. Ms Algrim was also engaged in the business, but had other jobs outside. A business operated by them was placed into liquidation, in December 2010, on the petition of the Australian Taxation Office.
In 2012, the parties purchased their former family home, at C Street, Town D (“the farm”). This is a rural property and has on it a large shed. Prior to its purchase, the parties had lived in rental accommodation.
The farm represented an ideal home for each of the parties. During the extensive initial proceedings between them, regarding the division of property between them, each of the parties aspired to retain the farm. Ultimately, the final order envisaged Ms Algrim retaining it.
During their relationship, Mr Lacefield operated his business from it and it is in the shed on the property that his tools of trade remain to this day which, to a large extent, has created the current impasse between the parties.
At the time of the farm’s acquisition, the parties were not in a strong financial position and the vast majority of the purchase price was borrowed from Ms Algrim’s mother, the sum involved being between $85,000 and $125,000. The property was registered in Ms Algrim’s sole name, as a safe guard against potential creditors of Mr Lacefield, in future.
There is no dispute that Mr Lacefield inherited the sum of around $100,000, from the estate of his late father, in 2004. This sum seems to have been invested in the business, which ultimately failed. Otherwise, the parties lived in somewhat strained financial circumstances, during their relationship of approximately 16 years.
As a consequence, in mid-2014, the parties discussed selling the farm, so that Ms Algrim’s mother could be repaid. Everything changed shortly afterwards on 10 June 2014, when Mr Lacefield learned that he held the winning ticket for the first division of the recently drawn Oz Lotto lottery and had won approximately 5 million dollars.
On winning the lottery, each of the parties retired from the workforce and Ms Algrim’s mother was repaid the sum of $102,541.98. Mr Lacefield also purchased a motor vehicle, for the sum of approximately $25,500.00, as a thank you gift for her.
Thereafter, the parties undertook extensive improvements to the farm. It is common ground that the property, at the time of the concluded de facto property proceedings, was worth in the vicinity of $300,000.00.
In addition, following the lottery win, the parties purchased a property located at E Street, Town F, which had a value of $195,000, at the time of the concluded de facto property proceedings.
Regrettably, the parties’ good fortune, in the form of the lottery win, does not seem to have translated into any particular personal level of happiness for either of them. The winnings were originally paid into a joint bank account. It is agreed that each of them made significant gifts to members of their respective families.
Neither party seems to have an acute sense of financial literacy. Sensibly, they obtained some financial advice and set up a self-managed superannuation fund to guarantee each of them a regular income stream. The parties continued to live at the farm primarily.
The events surrounding the parties’ final separation were unhappy for each of them. It is Ms Algrim’s position that Mr Lacefield assaulted her in January of 2017, which caused her to seek police intervention, resulting in Mr Lacefield being subject to an interim intervention order. This, in turn, led to his eviction from the farm, which remains a source of significant grievance for him.
It is Ms Algrim’s evidence that the cause of this altercation was a disagreement regarding how the lottery winnings had been invested. From the perspective of Mr Lacefield, he alleged that Ms Algrim had made a number of large payments, from the lottery winnings, which he did not authorise.
The parties date their final and irrevocable separation as commencing from this date. This was the background to Mr Lacefield initiating the first round of proceedings, between the parties, on 27 January 2017. At that stage, on a final basis, he sought un-particularised orders in respect of the alteration of de facto property interests between the parties.
On an interim basis he sought a variety of urgent injunctions to prevent Ms Algrim being able to access monies attributable to the lottery win. At that stage, the tenor of his affidavit evidence was that the win should be regarded as largely attributable to his efforts. In this context, he deposed as follows:
“In or around 2004 I gave up both cigarettes and alcohol. I had previously expended quite significant amounts on a weekly basis on both alcohol and cigarettes. The respondent did not join me in giving up alcohol and cigarettes and continues to pay those expenses each and every week.
I decided that I would put aside the money that I would have spent on alcohol and cigarettes. I spent one half of the money that I set aside on lottery tickets and the other half I simply used for day to day expenses.
I purchase lottery tickets each and every week. I did not purchase tickets jointly with the respondent nor did she ever purchase tickets on my behalf. I am unsure as to whether the respondent ever purchased her own lottery tickets but if she did it was not something that she shared with me.”[3]
[3] See Lacefield’s affidavit filed on 27 January 2017 at [12] – [14]
It is Ms Algrim’s position that the lottery win was treated by both her and Mr Lacefield as a joint asset, with the actual winnings being deposited into a bank account bearing each of their names.[4] She denies that she has acted illegally in respect of any transaction arising from the lottery win in the period since.
[4] See Ms Algrim’s affidavit filed 22 February 2017 at [77]
Thereafter, the parties made gifts and provided financial assistance to their children. They renovated their home and purchased the property at E Street, Town F. It is both Mr Lacefield’s current and historical allegation that Ms Algrim siphoned off some of the funds to benefit herself and other of her relatives. An allegation she, in turn, has consistently denied. Accordingly, in general terms, the parameters of the dispute between the parties was defined at an early stage of the proceedings.

The conduct of the proceedings

The case came into court for the first time on 27 February 2017. Each party was represented by the counsel who would ultimately represent him or her at the final hearing of the matter, which was initially scheduled to take place for five days in April 2019.
On 27 February 2017, the parties were able to agree on a number of holding orders. Each party was restrained from transferring monies from any existing bank accounts. A joint account was also established which would require both of their signatures to operate. An order was made requiring disclosure of sums paid to any third party from 1 June 2014 onwards.
In addition, each party was able to access the sum of $100,000.00 to meet their respective ongoing financial needs. The parties were then referred to mediation, with the case scheduled to return to court in mid-May of 2017. On this latter date, each party received a further sum of $100,000.00 by way of interim property settlement.
The case was then adjourned, whilst the mediation took its course. In early December of 2017, Ms Algrim made a further application for interim property settlement, on the basis that the early distributions made in her favour had been utilised and she was responsible for maintaining the farm. At this stage, she asserted that the relevant pool of property was likely to be in excess of $3 million.
Again, this application led to each party being granted a further interim property settlement in an amount of $100,000.00. The mediation was unsuccessful and on 5 April 2018, the case was listed for final hearing on 8 – 12 April 2019.
In the lead up to the trial further orders were made releasing equal amounts of monies, from the joint account, to each of the parties to meet their respective living costs and to prepare for trial. It is common ground that each party has received $450,000.00 in this regard.
In the month prior to trial, Mr Lacefield amended his application for property settlement. It is not readily apparent what was the effect of the orders sought by him in percentage terms. He did however wish to retain the farm and monies said to be equal to those forwarded to Ms Algrim’s children.
In addition, he filed an affidavit for the forthcoming trial. It is an affidavit of some thirty six pages and two hundred and thirty five paragraphs, which was prepared by the firm of solicitors, which had instigated his application.
His evidence can be summarised in the following terms:
·He had modest assets when the parties began to live together;
·Ms Algrim was responsible for financial management of the business, which had its ups and downs;
·The parties were not in a strong financial position when the lottery win occurred and were considering selling the farm;
·When the win happened, he established three term deposits each of $1 million;
·$1 million was utilised for self-managed superannuation;
·The remaining $1 million was to be utilised for improvements and to buy items, including motor cars.
As previously indicated, a theme of his evidence was that he had curtailed alcohol use and cigarettes and had utilised his surplus income to buy lotto tickets – a practice of which he alleged Ms Algrim did not approve, as she regarded it as a wasteful habit. In this context, he alleged that it was his funds alone which had resulted in the purchase of the successful lotto ticket.
The clear implication being that the winnings should be regarded as his alone. A further implication being that he had an expectation that the sums in question would be subject to his immediate control.
Under the heading Transactions Undertaken by the Respondent Post Lottery Win Mr Lacefield alleged that his instructions that there be a number of clear term deposits to hold the winnings had been disregarded by Ms Algrim and she accessed them via internet banking.
In this context, he deposed as follows:
“I have engaged Mr G to undertake a forensic review of the transactions undertaken by the Respondent. I have at all times maintained that the Respondent has obtained a significant benefit from the funds without my knowledge or consent. I also assert that the Respondent has provided funds to her various family members over and above that which she has disclosed.
...
I trusted the Respondent to act in our joint best interests, and I was also acting under the mistaken belief that the only accounts that the Respondent had access to were the iSaver account and the Classic banking account. As far as I was concerned, the remaining $4,000,000 was held in term deposits and was not able to be accessed by the Respondent.
It was in or around September or October of 2016 that I was able to view current statements for our accounts and I noted that the total balance for our accounts was significantly less than I thought was possible. The balance of the accounts at that time was under $2,000,000. In circumstances where I understood that the term deposits were protected, I expected the available balance to be something in the order of $3,500,000 with a further $1,000,000 in the superfund account.”[5]
[5] See Mr Lacefield’s affidavit filed 19 March 2019 at [163] & [186] – [187]

Mr Lacefield also deposed as to his perception of his health. He deposed that he had suffered an episode of illness in his late thirties and had undergone two shoulder reconstructions. He also complained of back issues but stated his health, prior to the lottery win, had been generally good.
In this context, he complained of the onset of hand and joint pain in recent years, which had not been capable of definitive medical diagnosis. He also suffered a deep vein thrombosis in 2015. He suggested that he might have drunk some contaminated water whilst at the home in E Street, Town F. He referred the matter to police, after having a sample of the water subject to analysis. The suggestion being that Ms Algrim had been poisoning him. Mr Lacefield did not allude to any issues relating to his eyesight.
Ms Algrim filed her affidavit material for trial on 27 March 2019. This consisted of the following:
·An affidavit of Ms H in which she deposed to gifts she had received from the parties and the circumstances surrounding the lottery win;
·An affidavit of Ms J, Ms Algrim’s daughter in law, in which she deposed to gifts she and her husband had received from the parties;
·An affidavit of Mr K, Ms Algrim’s son, in similar terms to that of Ms J;
·An affidavit of Ms L, Ms Algrim’s daughter, in which she deposed to gifts she had received from the parties;
·An affidavit of Ms M, Ms Algrim’s daughter, in which she deposed to gifts she had received from the parties;
·A lengthy affidavit of 42 pages and 363 paragraphs of herself, to which is attached 31 annexures.
Ms Algrim’s evidence can be summarised as follows:
·When the lottery win occurred, the parties were broke;
·Mr Lacefield frequently said we’ve won lotto and promised gifts to both his and her children;
·The implication of her evidence and that of her witnesses being that Mr Lacefield had always accepted that the win was a joint one and had indicated a desire to benefit his children and those of Ms Algrim;
·Substantial gifts amounting to some $403,000.00 were made;
·Mr Lacefield made substantial cash withdrawals following the lottery win, which she asserted amounted to $284,000.00;
·She had gone through the parties’ joint account and identified expenditure relating to the farm; household/medical; home improvements; and general; in an amount of $722,246.21;
·E Street, Town F had been purchased for $247,041.14;
·She denied attempting to poison Mr Lacefield.
Concurrently with her trial affidavit, Ms Algrim filed an amended application in which she indicated that she wished to retain the farm and the equipment necessary to run it. Otherwise she proposed a split of remaining assets between the parties, on equitable grounds, but did not expand upon this in percentage terms.
Shortly prior to the commencement of the trial, Mr Lacefield filed an affidavit of documents but did not disclose any report from the forensic accountant Mr G. In these circumstances, Ms Algrim applied to vacate the trial. She wished to collate further evidence regarding the poisoning allegation and was concerned that she might be at a disadvantage if the Mr G report did in fact exist and had the effect earlier suggested by Mr Lacefield.
In an affidavit filed in support of her application for an adjournment, Ms Algrim provided medical evidence from Mr Lacefield’s general medical practitioner and the water analysis report which strongly refuted any suggestion of foul play attributable to her. In addition, she deposed that she and her son had been questioned by police in respect of a complaint that they had hired a hit man to assassinate Mr Lacefield.
Notwithstanding the adjournment application, in the lead up to the scheduled trial, counsel for each party – Ms Lewis for Mr Lacefield and Mr Anders for Ms Algrim – provided to the court a comprehensive outline. Each is a comprehensive document and, in my assessment, the product of a counsel who is both well prepared and experienced with the applicable jurisdiction.
From these documents, which were intended to be read by the court, each party formally outlined their respective positions and the assertions of fact said to support them. Mr Lacefield specified that he sought a 60/40% division of the de facto property estate to be made in his favour, which was to include the farm. Ms Algrim specified that she sought a 60/40% to be made in her favour, which was also to include the farm.
Mr Lacefield’s submissions to the court can be summarised as follows:
·The relationship was one of fifteen years:
·He purchased the lottery ticket;
·Factors relevant to contribution favoured him because he obtained the winning ticket – this was the rationale for the proposed 60/40% division favouring him;
·He wished to retain the farm because:
oIt was the location from which he had conducted his work;
oHe was better equipped to look after the parties’ animals;
oHis equipment was there, which was too multifarious to either list or remove.
·He was confused as to how Ms Algrim had operated the parties’ joint account;
·He was concerned at the extent of the transfers made to Ms Algrim’s family;
·He calculated the asset pool to be $4.3 million, of which he estimated addbacks to be attributed to Ms Algrim amounted to approximately $652,000.00.
Ms Algrim’s submissions to the court can be summarised as follows:
·The relationship was one of fifteen years;
·During it the parties shared a joint life including in terms of their finances;
·The lottery win had been treated by them as a joint resource and had been approached as such in the period since its acquisition;
·In particular, each had altered their mode of life in response to it, particularly in the sense that it had facilitated their immediate retirement and the purchase of assets which had been used to facilitate this joint decision;
·In the period since the lottery win, it had facilitated their joint financial support;
·Prior to the win, Ms Algrim’s financial and general contributions had been greater and this justified the split in her favour proposed by her.
The trial was not adjourned as the parties indicated, via their respective counsel, that they wished to engage in some discussions to resolve the issues arising between them without recourse to a trial. These discussions were extensive and began on 8 April, and continued on through 9 and 10 April, on which occasion the case was adjourned until 30 July 2019.
On this latter day, I was advised by the solicitors for each of the parties that an agreement had been reached in principle and, on this basis, the case was adjourned until 14 August for consent minutes to be tendered.
As foreshadowed, on 14 August 2019, a consent minute was handed up, which, in the submission of each parties’ solicitor, represented a just and equitable outcome of the proceedings and which reflected the lengthy negotiations between the parties’ barristers commencing in April and which had continued thereafter.
These discussions had focussed on the contemporaneous extent of the asset pool and issues germane to the alleged add backs asserted by Mr Lacefield. Also central was the powerful emotional issue of what should occur to the farm and the related issue of Mr Lacefield’s plant and automotive equipment stored there.
I was told that the compromise agreed upon reflected an approximately equal division of the asset pool, which had been the subject of detailed and protracted negotiations. It is also clear that Mr Lacefield had the opportunity to pursue any issues of interest to him at trial and to canvass any matters relating to alleged discrepancies with the term deposits, whether or not identified by Mr G.
In these circumstances, I accepted the assurances of the solicitors that each party wanted to settle. Impliedly, I was satisfied that the relevant negotiations had occurred on a level playing field on which all controversies had been laid. Chiefly, these controversies were that, from Mr Lacefield’s perspective, the lottery win was his and his alone and there were irregularities in how Ms Algrim had administered it.
As is clear, I hope, from the summary of the evidence I have provided, these were clearly articulated issues prior to the date scheduled for trial and during the lengthy period of negotiations which followed it. It does not appear to me that one party was at a forensic disadvantage to the other in any negotiations arising between them. In particular, Mr Lacefield was represented by experienced junior counsel and solicitor. In addition, it cannot be said that he was at any financial disadvantage in the funding of his case.
It was agreed that Ms Algrim would retain the farm, with the date of settlement specified to be within 21 days. Mr Lacefield retained the E Street, Town F property. Significantly, order 12(a) provided a mechanism for Mr Lacefield to collect specified items of plant and equipment from the farm by giving notice in writing, which allowed Ms Algrim not to be present and so avoid any potential infringement of the still applicable restraining order.
I was satisfied to make the orders sought by each of the parties. At the time, I had no reason to question the bona fides of the purported settlement. Given the length of the relationship and how the parties had apparently approached the lottery win proceeds, I was satisfied that an equal division of what was then available represented a just and equitable outcome.
Clearly, the issue of who should retain the farm was a powerful one. However, aside from selling the property so that neither could retain it, it was axiomatic that it could go only to one of them. The compromise recognised this state of affairs. More significantly, I was satisfied that each party had made a full and frank disclosure of their financial affairs and, as a consequence, each had been given the opportunity to undertake any forensic accounting exercise which they wished to undertake.
In this context, the lottery winnings were placed into bank accounts. Statements were obtained in respect of these accounts and subpoenas issued. In these circumstances, neither party was in a position to assert that the other had in some way or other salted away funds surreptitiously. That is not to say that monies had always been advanced prudently by the parties. However, if there had been fraud, it was clear to me that each party had been given ample opportunity to uncover it and there were no apparent missing pieces of evidence in this regard.
Accordingly, I made the consent order tendered to me on 14 August 2019. Each party signed a copy of the minute. Mr Lacefield did not indicate that he could not read or understand the document concerned. The proceedings were removed from the list of cases awaiting hearing.

The current applications

Ms Algrim resumed proceedings, in respect of the 14 August 2019 order, on 12 December 2019. She sought the dismissal of the aspect of the orders, which authorised Mr Lacefield to collect the various chattels itemised in the order, from the farm, on the giving of written notice. In lieu thereof, she sought the court’s authorisation to sell the chattels and then account for the proceeds to Mr Lacefield. She sought indemnity costs in respect of this application.
In support of this application, her solicitor Mr Marjas, deposed as follows:
“I have, on behalf of the respondent, written to the solicitors for the applicant, David Burrell & Co, several times between October and December of this year, seeking to ascertain whether the applicant still intended to collect the Chattels from the Farm and if so, when this may occur. I have received no substantive response to my enquiries regarding the collection of the Chattels from the Farm.”[6]
[6] See affidavit of Denis Marjas filed 11 December 2019 at [8]
Mr Lacefield responded to this application on 7 February 2020. His response was prepared by the firm of solicitors retained by him from his instigation of the case in January of 2017. He sought the amendment of the relevant aspect of the 14 August 2019 order to be extended to 30 July 2020. In support of his application, he deposed that the various items filled a large workshop and, because of their size and weight, would require significant time and effort to move. His evidence in respect of these issues can be summarised as follows:
·He had gravely under-estimated the time required to remove the items, when he had “consented” to the 14 August orders;
·He would need to rent a shed to store them;
·In this context, he had made inquiries of various storage companies to no avail;
·He had made inquiries of friends, who owned farming properties, with a view to renting space from them, but this had not been successful.
In my view, it is important to note that Mr Lacefield’s affidavit, filed at this stage, did not seek to impugn, in any way, the final order made on 14 August 2019. To the contrary, he indicated that he had consented to it. Once again, Mr Lacefield did not raise any issues germane to his difficulty in reading or attesting his supporting affidavit, which indicated that it was deposed before his solicitor, at his solicitor’s office.
The parties’ competing applications came on for hearing on 11 February 2020. On this occasion, perhaps naively, I thought that the issue could be resolved through a process of conciliation to be engaged by one of the court’s registrars. On this basis, the case was referred to a conciliation conference scheduled for 8 May 2020.
The conciliation conference did not occur, on the joint application of the parties. It was subsequently adjourned, again consensually, until 28 September 2020. In the meantime, on 23 September 2020, the solicitor who had acted for Mr Lacefield throughout withdrew from the proceedings.
When the case returned to court, Mr Lacefield appeared on his own behalf and indicated that he wished for time to obtain alternative legal advice. In these circumstances, the proceedings were adjourned until 30 October 2020. In these circumstances, it was self-apparent that the parties had been unable to resolve the impasse regarding what should occur to the various items of plant and equipment stored at the farm.
When the case returned to court, on 30 October 2020, Mr Lacefield was represented by his current solicitor, Mr Kruse. Ms Algrim agitated for the resolution of the issues raised by her, pointing out that the order in question was now well over a year old and the previous extension sought by Mr Lacefield long passed.
In these circumstances, I fixed the application for hearing on 4 December 2020. Mr Kruse filed a notice of address for service, on behalf of Mr Lacefield, on 13 November 2020.
On 30 November 2020, Mr Marjas filed an affidavit, deposed by him, to which was annexed the voluminous correspondence passing between his office and that of Mr Lacefield’s previous solicitors, regarding the implementation of the 14 August 2019 orders and proposals for the resolution of the chattels issue.
On 30 November 2020, Mr Anders of counsel filed written submissions on behalf of Ms Algrim, to which were attached the orders he sought be made in his client’s favour. The orders were as follows:
“1. That the injunction contained in Order 33 of the Final Orders made on 14 August 2019 (Final Orders) restraining the wife, her servants or her agents from disposing of the items located at the Farm and referred to in Order 20 (g) and Schedule A of the Final Orders (Chattels) be lifted.
2. That the wife may dispose of the Chattels however the wife sees fit provided that:
2.1. The wife account to the husband for the proceeds received from such disposal less all reasonable expenses incurred by the wife in disposing of the Chattels;
2.2. In the event the reasonable expenses incurred in disposing of the Chattels exceeds the proceeds received by the wife in disposing of the Chattels, the husband shall reimburse the wife for such expenses within 14 days of a demand for payment being made.
3. That pursuant to Order 35 of the Final Orders, the Registrar execute the transfer of registration papers on the part of the husband for each of the following vehicles, so that the said vehicles may be legally transferred to the wife.
3.1. Motor Vehicle1;
3.2. Boat;
3.3. Motorbike;
3.4. Motor Vehicle 2; and
3.5. Boat Trailer.
4. That the South Australian Registrar-General remove Caveat Number ... from Certificates of Title Register Book Volume ... Folios ... and ....
5. That pursuant to Order 35 the Registrar execute a deed of assignment, assigning a 50% interest in the loan from the husband to Mr B, made pursuant to a loan agreement dated 2 September 2014 and described in Order 15 of the Final Orders.
6. Costs of this application on an indemnity basis;
7. Such other Orders as this honourable Court sees fit.”
It was Mr Marjas’ evidence that, in spite of repeated requests to Mr Burrell that it be done, Mr Lacefield had steadfastly refused to execute the various documents required to transfer a Motor Vehicle 1; a Motor Vehicle 2; a motorbike; and a boat and associated trailer; from Mr Lacefield’s name into Ms Algrim’s name, as well as to assign an interest in the Mr B loan to the wife, as the 14 August 2019 orders required.
On 3 December 2020, Mr Kruse filed an application in a case, which sought the following orders:
“1. That this application be heard on Friday 4 December 2020 before Judge Brown.
2. That unti1 further order:
2.1. The Final Orders made 14 August 2019 are suspended.
2.2. The Respondent is restrained from disposing of the Applicant's chattels, pursuant to Orders 12 and 20 of 14 August 2019.
3. That respondent to make disclosure within 21 days and is restrained from dealing with until further order the:
3.1. Trust Deed for The Lacefield Algrim Family Trust; ABN ... (“the trust”)
3.2. Any variations to the said trust from 2 March 2016 to present
3.3. All financial accounts of the said trust from 2 March 2016 to present
3.4. All associated bank accounts of the said trust from 2 March 2016 to present
4. That the Respondent put the Trustee of the said Trust on notice of these orders forthwith, in writing and contemporaneously provide a copy of such notice to the Applicant.
5. That the Respondent to make disclosure within 21 days and is restrained from dealing with until further order her personal account as mentioned in her SAPOL affidavit 7/1/2017; Annexure -5 to my contemporaneous affidavit filed with this application.
6. That the parties jointly engage at their joint shared cost a forensic accountant to reconcile the monies, with an expert report to be filed within 7 days of receipt of the same.
7. That in the event disclosure as per Orders 3.4 or 5 herein is not made, that a subpoena do issue against the NAB on short application by the Applicant to the Court.
8. That the parties file an outline of submissions within 21 days of disclosure being made as per Order 3 above.
9. That leave be granted to file further Affidavit material, limited to 10 pages of substance, excluding annexures.
10. That the matter be set down for argument on […] 2021.
11. Such other Orders as the Honourable Court sees fit.”
In support of this application, Mr Lacefield provided evidence, which can be summarised as follows:
·He suffers from vision impairment and was not in a position to provide informed consent to the 14 August 2019 order;
·He has evidence of a $1,000,000.00 discrepancy in the manner in which the property pool was calculated;
·A trust was instituted entitled the Lacefield Algrim Family Trust on 2 March 2016, which has not been previously disclosed by Ms Algrim;
·The current intervention order made in Ms Algrim’s favour prevents him from collecting the chattels in question.

In support of his application, Mr Lacefield provided a short report, from his optometrist, dated 21 October 2020, which indicated that he had been examined on 28 February 2019. This report indicates Mr Lacefield underwent cataract surgery, on his right eye, in 2020. In this context, Mr Lacefield has deposed as follows, in respect of documents sent to him, by his previous solicitors:
“I often attempted to read documents and letter using a combination of multiple magnifying glasses but this was impossible to do for any length of time or with any certainty that I had read the words correctly. As a result, I was entirely reliant on documents being read over to me prior to my signing to give my consent.
Prior to signing documents and in particular the final consent minute of order, my lawyer at the time – Mr Burrell would generally read over, paraphrasing the documents. However, I note that the jurat of the final trial affidavit filed 19 March 2019 does not comply with Rule 15.27 - Affidavit of illiterate or vision impaired person etc.”[7]
[7] See affidavit of Mr Lacefield filed 3 December 2020 at [5] – [6]
Specifically, Mr Lacefield alleges that his previous solicitor did not read over the final consent minute to him. However, Mr Lacefield does not allude to his personal involvement in the various protracted negotiations, which occurred between the parties prior to the orders being made, particularly at court in April of 2019, and what was his understanding of what was going on at the time.
In addition, he makes no specific criticisms of what is attributed to him in the various affidavits, which have been filed on his behalf throughout these proceedings. Rather, in my assessment, he makes inchoate assertions that there are irregularities in respect of how Ms Algrim has dealt with jointly held assets, following the lottery win. These are similar in nature to the complaints raised by him in his earlier affidavit material.
Ms Algrim and those advising her did not have long to respond to these various assertions. However, they did the best they could. In particular, an affidavit was obtained from Mr N, who was the parties’ accountant between June 2013 and January 2017. He confirmed that a family trust was set up, in March of 2016, on the instructions of both parties, which was planned to be utilised as an “investment vehicle” for the lottery winnings. However, he deposed that the trust had never been used and had remained dormant since its creation on 2 March 2016.
In respect of the alleged $1,000,000 discrepancy, which was asserted to arise in respect of Ms Algrim’s operation of three NAB bank accounts between June 2004 and December 2016, Mr Marjas indicated that Mr Lacefield (and those advising him between early 2017 and August of 2019) had access to the statements in respect of these accounts and so were able to complete any reconciliation, which they might wish to undertake.
In addition, Mr Marjas pointed out that these complaints had been previously raised by Mr Lacefield and were in play, when the parties engaged in the protracted negotiations leading up to the August 2019 orders.
In these circumstances, Mr Marjas wrote to Mr Kruse, in the following terms:
“Our client agreed to the Final Orders in good faith as a means of finalising the proceedings without the need for trial. The Final Orders were agreed upon subsequent extensive communications between the parties, conducted over a protracted period. There was simply no scope whatsoever for the confusion that is now alleged by your client. His conduct now is entirely disingenuous.
Our client was not on notice of any issue that your client may have regarding to his ability to give instructions or consent to the Final Orders.
To the extent that your client now asserts that he did not and/or was unable to consent to the Final Orders that is matter between your client and his then legal advisors, David Burrell & Co. It is not a basis to set aside the Final Orders and unfairly prejudice our client who has acted in good faith.
The timing of these allegations serves only to enhance the obvious concerns as regards your client's motives. It is palpably apparent that he seeks only to re agitate issues that were previously considered and resolved.”[8]
[8] See letter dated 3 December 2020 from Mr Marjas to Mr Kruse produced to the court by Mr Anders on 4 December 2020
In all these circumstances, Ms Algrim seeks to proceed with her application in respect of the various chattels left at the farm. It is her position that this issue has been left in abeyance, for far too long, due to the vacillations of Mr Lacefield, leaving her unfairly prejudiced and unable to get on with leading her life, as she chooses, in her home.
It is also her position that Mr Lacefield’s response to her application and the alternative orders, which he seeks, should be dismissed in the exercise of the court’s discretion to manage the business, which comes before it. She asserts that she settled the case with Mr Lacefield in good faith and he has demonstrated no cogent reasons why she should not be entitled to what flows from the consent orders to which she agreed.
Mr Kruse, in passionate submissions to the court, submitted that in his (Mr Kruse’s) personal view, Mr Lacefield has a good case arising from the issues relating to his allegedly impaired eyesight. Mr Kruse concedes that he has not been in a position to conduct his own examination of the relevant bank accounts in question, but nonetheless asserts his view that Mr Lacefield has a strong case in respect of the allegedly missing funds.

Discussion

Ms Algrim’s application can be characterised as a quasi-enforcement one. In effect, she seeks to complete her obligations under the orders of 14 August 2019 in respect of the chattels transferred to the ownership of Mr Lacefield, which remain at the farm, given that he has not done what was envisaged of him by the relevant orders.
However, in lieu of the strict enforcement of the terms of the consent order earlier made, she seeks orders of an alternative nature, namely to be able to sell the chattels and then account for the proceeds to Mr Lacefield. The underpinning of her application is that that she is entitled to the quiet enjoyment of the property transferred to her, namely the farm, without the impingement of Mr Lacefield’s property.
For reasons of expediency, Ms Algrim wishes the relevant tranche of orders sought by her to be made without recourse to a further full hearing involving the canvassing of evidence through cross-examination. It being her case that if she does not dispose of the items, Mr Lacefield will not remove them and this is unfair to her and precludes her from the finality the orders envisaged, particularly in terms of her unalloyed occupation of the farm.
The other aspect of her enforcement application is that Ms Algrim seeks the engagement of the registrar to execute various transfer documents in respect of some motor vehicles and a boat. It is her position that Mr Lacefield has had ample time to remove the chattels in question and execute the transfer documents concerned and she is entitled to finalise the practical aspects of the consent orders.
The relevant powers of the court in respect of de facto property matters are outlined in Part VIIIAB of the Family Law Act 1975 particularly section 90SS(1). This section outlines the general powers of the court, which include the power to make any order which it thinks is necessary to make to do justice.
In all the circumstances of this case, I am satisfied that considerations of justice and equity dictate that Ms Algrim is entitled to finality in respect of the orders made by consent in August 2019, nearly two years ago. The orders in question have been carefully drafted to overcome any potential problems relating to the family violence order made in Ms Algrim’s favour against Mr Lacefield.
The orders envisaged Mr Lacefield being able to give notice in respect of the collection of his property. The period in question was a lengthy one, which has subsequently been extended. In order to do justice, in this case, in my view, it is appropriate for the court to authorise Ms Algrim to sell the items in question. She is entitled to be able to move on and end her financial relationship with Mr Lacefield.
The orders of August 2019 envisaged each party retaining items of property in their respective control, as at the date of the orders. In addition, the orders had a provision which authorised an approach to the court in the event that a party defaulted in respect of carrying out his/her obligations under the order [see order 35]. In these circumstances, I am satisfied that, in order to do justice between the parties, it is appropriate to make the orders sought by Ms Algrim.
Mr Lacefield seeks the suspension of the orders of August 2019. In effect, he seeks a stay in respect of the orders although an appeal has not as yet been filed. In addition, many of the practical aspects of the orders in question have been put into effect, most significantly the splitting of superannuation and Ms Algrim’s ongoing occupation of the farm.
In this sense, it is difficult to understand what in fact is to be suspended. However, underpinning this aspect of his case is the prospect of an application being brought under section 90SN(1) of the Act on the basis of some species of miscarriage of justice having occurred.
For her part, Ms Algrim seeks the summary dismissal of this application essentially on the basis that any appeal or foreshadowed application under section 90SN has no reasonable prospects of success and should therefore be dismissed, by the court, in the exercise of its discretion to control the matters coming before it and to protect her from the consequence of unnecessary litigation.
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides as follows:
“(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.”
Rule 13.10 of the Federal Circuit Court Rules 2001 reads as follows:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.”
The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked.[9] The case “must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination … by the court …”[10] In Webster v Lampard[11] the High Court said as follows:
“The power to order summary judgment must be exercised with exceptional caution … and should never be exercised unless it is clear that there is no real question to be tried.”
[9] See McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409 per Weinberg J at 415 [12]
[10] Dey v Victorian Railway Commissioners (1949) 78 CLR 62
[11] Webster v Lampard (1993) 177 CLR 598 at 602
In McKellar, Weinberg J, after summarising the various authorities, relating to summary dismissal, said as follows:
“… a proceeding should not be dismissed summarily merely on the ground that it appears, at the early stage of the hearing of the motion brought for that purpose, to advance a highly implausible claim which will very probably fail, but only where the claim may properly be described as unarguable, and almost incontestably bad, or where the claim is otherwise objectionable as an abuse of the process of the court.”[12]
[12] See McKellar (supra) at 416 [18]
There is no appeal on foot in respect of the orders of August 2019. In my view, it would be difficult to envisage what the grounds of appeal could be. In practical terms, the effect of the orders made was that the parties’ de facto property estate was divided equally between them following a lengthy relationship of some fifteen or so years where the parties were of similar age.
The major idiosyncratic factor of the case was the lottery win which occurred during the relationship. I acknowledge that this was and remains an emotionally potent issue. However, the unequivocal implication of the orders of August 2019 is that the parties each elected to approach the proceeds of the win on the basis that it was joint property and not one which should be approached on the basis that it was the contribution of the efforts of one de facto spouse alone.
This approach was adopted as the basis for the negotiated outcome, which culminated in the consent order of August 2019. I am satisfied that the negotiations leading up to the agreement, obviously protracted in nature, were conducted on a level playing field.
More significantly, Mr Lacefield is not in a position to assert that the rationale of the various negotiations between the parties and their legal representatives was obviously flawed or took place on a misconception of the applicable legal principles. In my view, it is in this context, that the various orders sought by Mr Lacefield, at this stage, must be considered.
Mr Lacefield seeks an injunction restraining Ms Algrim from dealing with a trust. He is not able to specify what property it controls and for whose benefit and, more importantly, what are the consequences of its alleged nondisclosure in the earlier and concluded proceedings.
The effect of the evidence of Mr N is that the trust has no significance and was never activated. Mr Lacefield has provided no evidence to rebut this evidence. More significantly, he had the opportunity to pursue this issue during the course of the earlier proceedings as well as to engage in the forensic accounting exercise also sought by him in his current application.
Mr Lacefield’s major complaint is that Ms Algrim did not provide sufficient information in respect of how she managed the monies which were placed in term deposits in the period following the lottery win, which was also a time in which the relationship between the parties was still in place.
In my view, this is not a new complaint. It was clearly articulated throughout the affidavit material prepared on Mr Lacefield’s behalf in the lead up to the final hearing before the court (as indeed was his perception that the lottery win was his alone because he purchased the relevant ticket following his disavowal of alcohol).
In addition, in the earlier proceedings Mr Lacefield deposed that he was in fact seeking a forensic accounting analysis from Mr G. As I have observed earlier, Mr Lacefield was represented by experienced counsel during the protracted negotiations leading up to the consent order. In this context, Ms Algrim had filed a lengthy affidavit contained in some three volumes. At this stage, there was no complaint made, by those representing Mr Lacefield, of any nondisclosure on her part.
In my view, it is in this context that Mr Lacefield’s complaints relating to his eyesight and his allegation that he could not read his affidavit properly must be examined. In particular, Mr Lacefield does not indicate what was left out or what particular issue was not properly ventilated in his material. In my view, this omission causes the gravamen of his complaint to fall away. The allegations, of themselves, cannot lead to the conclusion that his case was not articulated as he wished on his instructions to his legal advisors.
Essentially, solely on the basis of the allegation that Mr Lacefield could not read his affidavit material as effectively as he now would like; the affidavit was paraphrased to him rather than read back in full; or the jurat was deficient, cannot support the conclusion that his case was not articulated properly, leading to a miscarriage of justice.
In my view, if Mr Lacefield perceives that he has been the subject of some form of legal unprofessionalism, his recourse is to the professional body overseeing the conduct of the relevant practitioners rather than to this court and a complaint of miscarriage of justice.
The grounds which allow a person affected by a final de facto property order to vary said order are set out in section 90SN. In essence, Mr Lacefield bears the onus of establishing that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, which may include nondisclosure, the giving of false evidence, or any other circumstance.
If Mr Lacefield establishes any of these factors, it is then open to the court, in its discretion, to vary or set aside the impugned orders. In my view, as his case is currently articulated, Mr Lacefield is not in a position to advance any of these considerations.
Rather his case is one of inchoate disagreement with the equal division of property and its disposition represented by the August 2019 orders, and a sense of disgruntlement with his lawyers.
In Lancer & Lancer,[13] Bryant CJ noted that section 79A [the matrimonial property equivalent of section 90SN] contained two aspects. The first being a fact finding exercise, that is whether the applicant concerned could establish, to the relevant evidentiary standard – the balance of probabilities – that there had been a miscarriage of justice by reason of one of the matters set out in sub‑section (1).
[13] Lancer & Lancer [2008] FamCAFC 112
The second part being what followed from such a positive finding, namely whether the court, in its discretion, should set aside or vary the original order. Essentially, even if some species of miscarriage is established, the court retains a discretion to set aside any orders so affected.
Accordingly, the interests of Ms Algrim would be germane to the court’s considerations pursuant to the second limb created by section 90SN. It is patently not in her interests that the litigation be re-agitated, particularly if that re-agitation is posited on some aspect of impropriety not originating with her. It being a significant part of Mr Lacefield’s case that he is the victim of his lawyer’s alleged failings. For obvious reasons, these cannot be attributed to Ms Algrim.
Section 90SN is a piece of beneficial legislation. Accordingly, it is not to be interpreted in an unduly restrictive fashion.[14] I also acknowledge that it is a fundamental requirement of all matrimonial and de facto property litigation that the parties to such proceedings make a full and frank disclosure of their financial matters, both to each other and to the court.
[14] See Gebert & Gebert (1990) FLC 92-137 at 77, 935
This is a matter of public policy interest, given the high volume of matters coming before this court and the Family Court, involving property issues. It is essential to the administration of justice that as many as possible of these cases be resolved consensually and that both the individuals concerned and the community generally have confidence in the probity of such settlements. As such, a failure to make proper disclosure can amount to a miscarriage of justice.[15]
[15] See Suiker & Suiker (1993) FLC 92-436 at 80,471

However, apart from Mr Lacefield’s assertions in this regard, he is not in a position to provide any concrete evidence in respect of a lack of disclosure or demonstrate that there were any issues which should have been in play before the court in the lead up to the orders of August of 2019, to which he ostensibly consented.
Both the issue of the forensic accounting examination and what occurred to the term deposits immediately following the lottery win were articulated on his behalf and answered by Ms Algrim. I am also satisfied that the issue of the family trust is not a significant one.
Finally, the consent order was clearly made in circumstances in which each party was aware that there was a current family violence order. This is patently the case given that the orders envisaged notice being given and agents being engaged to collect the relevant chattels, which are clearly delineated in the schedule attached to the orders.
Given these factors, I have come to the view that Mr Lacefield has advanced a case which can be properly described as being unarguable and, as such, an abuse of the court’s processes. I propose to dismiss it and make the orders proposed by Ms Algrim in respect of the various chattels concerned.
There remains the issue of costs. Ms Algrim seeks the costs of the proceedings on an indemnity basis on the basis that she has been wholly successful in respect of her application, which from her perspective has been unduly retarded by Mr Lacefield’s actions, particularly the fact that none of his assertions have been accepted by the court.
Section 117(1) of the Family Law Act abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
However, pursuant to section 117(2), if the court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just.
The relevant considerations are set out in section 117(2A) of the Act and are as follows:
·The financial circumstances of each of the parties to the proceedings;
·Whether any party to the proceedings is in receipt of legal aid;
·The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;
·Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
·Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
·Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer;
·Such other matters as the court considers relevant.
The court’s discretion to make an order for costs is a wide one and includes the authority to make an order for indemnity costs. However, the discretion remains one which must be exercised carefully and judicially.
In this context, orders for indemnity costs are extraordinary or exceptional in nature. In Kohan & Kohan,[16] the Full Court of the Family Court characterised an order for indemnity costs as “being a very great departure from the normal standard”. In this context, the Full Court said as follows:
“The court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.”
[16] See Kohan & Kohan (1993) FLC 92-340 at 79,614
There is no closed category of cases in which indemnity costs may appropriately be awarded. However, in Colgate Palmolive Co v Cussons Pty Ltd,[17] the Full Court of the Federal Court indicated that the kinds of situation in which indemnity costs might be considered included those in which a litigant had:
·Commenced or continued an action knowing it to have no chance of success;
·Made false or irrelevant allegations of fraud;
·Made groundless allegations, which prolonged the case concerned; and
·Imprudently refused an offer to compromise.
[17] See Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
If the court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules 2001:
“In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

(d) set a time for payment of the costs, which may be before the proceeding is concluded.”

Accordingly, the discretion provided by Rule 21.02(2) provides potential different mechanisms, for the awarding of costs, under either the rules of this court or the Family Court or indeed on a generic discretionary basis. This is reflective of the potential differences, particularly in respect of issues of complexity, which may arise from the nature of the jurisdiction conducted in each court.
However, Rule 21.10 of the Federal Circuit Court Rules 2001 provides a minimum level of entitlement, in respect of any award of costs, if made by the Federal Circuit Court. The rule provides as follows:
“Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.”
Pursuant to Rule 21.15 the court may certify that it was reasonable for any party to employ an advocate to appear on his or her behalf in a proceedings. If such a certification is made, the amount payable for counsel to appear is the “daily hearing fee and advocacy loading in accordance with parts 1 & 2 of Schedule 1” [see Rule 21.16].
Rule 21.10 and the schedule under it create a scale of costs by reference to the occurrence of fixed events. The procedure in question is clearly designed to allow the ready calculation of costs incurred following the various procedural stages of litigation from filing to finalisation with judgment. Necessarily, it does not always reflect the complexity of the litigation involved.
The costs allowed for initiating an application up to the first court date are $2,241.00; a summary hearing attracts costs of $1,867.00; the daily hearing fee for a half day hearing is $1,120.00; there have been at least three short mentions attracting costs of $305.00 in each case. Consideration must be given to the expense arising from the use of an advocate for the relevant hearings concerned.
I have not been advised what is the specific extent of that disbursement. Pursuant to Rule 21.15, the court is authorised to certify that it was reasonable for counsel to be retained. Due to the complexity and controversy arising from this case, it was, in my view, reasonable for Ms Algrim to retain Mr Anders, the counsel who appeared on her behalf at the trial. Mr Anders prepared written submissions for the court.
In all the circumstances of this case, I propose to award costs in a sum of $8,000.00 in Ms Algrim’s favour, to be paid within 28 days of today’s date. This is more than the scale but reflects the fact that Mr Lacefield has raised a number of issues, which were the subject of the previous litigation. I consider that this is a just amount given the outcome of the proceedings.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 7 April 2021