Lam and Zeng

[2017] FamCA 951

FAMILY COURT OF AUSTRALIA

LAM & ZENG [2017] FamCA 951

FAMILY LAW – COSTS – Where the wife makes an application that the husband pay the wife’s costs from the date on which she made an offer of settlement – Where the offer of settlement made by the wife was in virtually identical terms to the result that the husband received at the final hearing – Where it is just that an order be made for the husband to pay the wife’s costs in relation to the property settlement proceedings from the date the offer was made to the date of the conclusion of the final hearing which sum should not exceed $12,000.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lam

RESPONDENT: Mr Zeng

FILE NUMBER: SYC 2086 of 2014

DATE DELIVERED: 22 November 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sun Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

Orders made 17.8.2017

1. Liberty granted to either party to make an application to me on 7 days notice for the implementation of orders made on 10 February 2017.

2. In relation to the wife’s Application in a Case filed 9 March 2017, the husband is to pay the wife’s costs in respect of the property proceedings from 8 September 2016 until their conclusion as agreed between the parties or assessed, which sum is not to exceed a sum of $12,000.

3. Upon the completion of the responsibilities set out in paragraphs 19 to 22 of the orders made on 10 February 2017, the amount of $131,069 payable by the wife to the husband pursuant to paragraph 19 of those orders is to be reduced to the sum of $119,069 payable by the wife to the husband with the balance figure of $12,000 to be placed by the wife into her lawyer’s trust account and not to be released unless there is agreement between the parties in relation to the quantum of costs that I have orders or a further order by me as to the quantum of costs.

4. In the event that the wife is unable to reach an agreement with the husband in relation to costs, the wife is to seek an assessment of those costs.

5. The wife’s lawyer is to pay to the husband forthwith any difference between the assessment and the amount of $12,000 if the assessment is lower.

6. There be no order for costs of today.

7. Reasons for these orders are otherwise reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2086 of 2014

Ms Lam

Applicant

And

Mr Zeng

Respondent

REASONS FOR JUDGMENT

1. On 10 February 2017 final orders were made in contested parenting and property settlement proceedings between the parties. On 17 August 2017 I made an order in relation to costs. I reserved my reasons and now provide them.

2. By way of an Application in a Case filed 9 March 2017, the wife sought an order that, “The husband pay the wife’s costs from 8 September 2016”. It was clarified during discussions with the wife’s lawyer that that only related to the property settlement part of the proceedings.

3. Section 117(1) Family Law Act 1975 (Cth) (“the Act”) provides each party to proceedings shall bear his or her own costs. Section 117(2) of the Act however provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court can make such order as to costs as the court considers just. Section 117(2A) of the Act sets out the matters to which the court should have regard when considering whether or not to make a costs order.

4. The wife’s application relies upon an offer that was made in writing to the husband on 8 September 2016.

5. As discussed below, that offer is virtually identical to the result that the husband received at the hearing.

6. The offer provides that the wife retain the Suburb B property; the husband retain the Suburb G property and that each party be solely liable for the mortgage on the property that each retain. The offer further provides for the wife to pay the husband the sum of $135,000.

7. At the time of the hearing both parties continued to reside under the one roof in the Suburb B property which was jointly owned. There was another jointly owned property at Suburb G.

8. The property orders provide a cascading set of options whereby the wife had an option to acquire the husband’s interest in the Suburb B property within a period of two months; the husband had an opportunity within a further period of two months after which period the property needed to be listed for sale.

9. The husband asserted before me that the Suburb B property now had to be listed for sale because the wife had failed to complete the terms of the provisions of the orders allowing her to retain the property and he hadn’t taken up the option of acquiring the property from the wife.

10. The lawyer for the wife indicated from the bar table, and the husband did not say it was incorrect, that he had requested the husband sign a transfer in March 2017 so that the wife could satisfy a bank requirement in relation to the refinancing she needed to make the payment to the husband that would enable her to retain the Suburb B property.

11. The parties agreed that they had attended before the Senior Registrar on Thursday of the previous week and he, pursuant to order 30 made by me on 10 February 2017, had signed a transfer on behalf of the husband transferring the husband’s interest in the Suburb B property to the wife. I infer that the Senior Registrar satisfied himself there was a proper basis for signing that transfer, including at least the husband’s refusal or neglect to sign the transfer.

12. The first option provided in the property settlement order gave the wife the ability to retain the Suburb B property, was contained in orders 19 to 22 made 10 February 2017. Those orders put into effect the distribution table which was set out at paragraph 246 of the reasons for judgment. That table provided that the wife receive the Suburb B property, her motor vehicle and her superannuation fund and take over the mortgage of the Suburb B property and that the husband receive the Suburb G property, his superannuation fund and that he take over the mortgage of the Suburb G property and that the wife pay the husband an adjusting amount in the sum of $131,069.

13. I am generally aware that the effect of the property settlement orders was that the wife received approximately $885,000 in assets and the husband received approximately $724,000 in assets. At the time of the hearing the wife was unemployed and the husband was studying, with each party receiving Commonwealth assistance.

14. There was no other consideration in s 117(2A) that my attention was drawn to or otherwise appeared relevant.

15. I conclude that it is just to make an order that the husband pay the wife’s costs in relation to the property settlement proceedings from 8 September 2016 until 25 November 2016. The wife had originally in her affidavit in support of her application (at paragraph 4) estimated that she had expended $29,772 on her legal costs from 8 September 2016 to the date of the conclusion of the final hearing. The wife’s lawyer however conceded that those legal costs were a mixture of costs relating to both the parenting and property settlement aspects of the litigation. The wife’s lawyer estimated from the bar table that the part of those costs that related to the property were about $12,000. It was clear however that the wife’s lawyer had not done any proper analysis as to what portion of the costs incurred since the date of the offer could be properly apportioned to the property settlement proceedings.

16. The costs order should provide that the sum should be as agreed or assessed but not exceed $12,000.

17. Further, it is convenient that I make an order that would see an amount of $12,000 being set aside in the wife’s lawyer’s trust account until the precise figure is agreed or assessed from monies that the husband would otherwise receive pursuant to order 19 of the orders of 10 February 2017. Consequently I will make orders as to how that money should be released.

18. Given the difficulties to date, particularly the difficulties the husband displayed in understanding his responsibilities arising from paragraphs 19 to 22 of my orders of 10 February 2017, I made an order giving leave to the parties to make an application in relation to the implementation of the orders made on 10 February 2017.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 November 2017.

Associate:

Date: 22.11.2017