LANCEL & LANCEL

[2014] FamCA 1244

FAMILY COURT OF AUSTRALIA

LANCEL & LANCEL [2014] FamCA 1244

FAMILY LAW – PROPERTY – COSTS – Respondent’s application for costs where the applicant has not filed any affidavit material – consideration of the parties’ conduct in the proceedings – where the applicant has been wholly unsuccessful – costs fixed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Lancel

RESPONDENT: Mr Lancel

FILE NUMBER: MLC 1847 of 2013

DATE DELIVERED: 15 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Williams

SOLICITOR FOR THE APPLICANT: Marshalls & Dent Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guss

SOLICITOR FOR THE RESPONDENT: Joseph Guss Lawyer

Orders

IT IS ORDERED THAT

1. The parties do all acts and things to forthwith appoint a single expert witness to value the wife’s B-class shares in B Pty Ltd, such valuation to be at the joint expense of the parties.

2. By 4.00 pm on 31 January 2014 the husband file and serve:

   a)   an amended application in a case setting out with precision the orders that he seeks; and

   b)     any affidavits in support upon which he seeks to rely.

3. By 4.00 pm on 14 February 2014 the wife file and serve:

   a)   any response to the husband’s amended application in a case setting out with precision the orders that she seeks; and

   b)     any affidavits in support upon which she seeks to rely.

4. The husband pay the wife’s costs of this day fixed in the sum of $2,893 to be paid by 4.00 pm on 14 February 2014.

5. The husband’s application in a case filed 12 September 2013 be otherwise adjourned to the Judicial Duty List at 10.00 am on 5 March 2014.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1847 of 2013

Ms Lancel

Applicant

And

Mr Lancel

Respondent

REASONS

1. This matter comes before the Court by way of an Application in a Case filed on 12 September 2013 in which the husband seeks that the order of Registrar Sikiotis made 14 August 2013 varying the orders the Registrar made on 20 May 2013 be set aside and that, in lieu of those orders, orders be made that each party may appoint their own valuers to value the property known as Property A, that each party appoint their own actuaries to value the life interest of the wife and that a conciliation conference which had been fixed for 22 October 2013 be refixed as required in the circumstances.

2. The matter came before the Court on the first occasion on 15 November 2013 and on that date orders were made for the appointment of Mr C of D Valuers, a single expert witness, to undertake a valuation of Property A on terms agreed between the parties and the cost of such valuation to be shared equally between the parties.  The matter was otherwise adjourned to the Judicial Duty List this day.

3. The proceedings were commenced by way of the wife’s Initiating Application filed on 15 March 2013.  The husband filed a Response on 26 April 2013, but it is fair to say that the matter has otherwise not progressed as one might have hoped and as, I am sure, the parties might have hoped.  Mr Guss, on behalf of the husband, and Ms Williams, on behalf of the wife, have both made submissions to me with respect to what appears to be primarily a dispute as to the valuation of the wife’s life interest in the estate of her first husband.  It would appear that whilst the application sought adversarial experts to value that interest, subject to their being a determination as to exactly what is to be valued, the parties might agree upon a single expert valuation.  That remains, in any event, a matter for another day.

4. Significantly, in this case, there has been no affidavit material filed at all.  The difficulty with that is that any submissions that are made by either party are not supported by any evidence. It is on that basis that the wife, who is the respondent to this application, seeks an order that the husband pay her costs of this day.  It is her case that on 9 January 2014 her solicitor wrote to the husband’s solicitor with respect to the filing of affidavits in support of the application for review.  No affidavits have been filed.  It is on that basis, she said, that the costs of today have essentially been thrown away.

5. There is no evidence based upon which the Court could make the orders sought by the husband, even if the precise nature of those orders could be ascertained, and I am proposing to adjourn the matter and to make orders requiring the husband to file an amended application in a case setting out with precision the orders he seeks and for the filing of affidavits in support of that application. 

6. The husband’s solicitor submits that I should not make an order for costs.  It is his case that, the parties having agreed to a valuation of the real estate owned by B Pty Ltd, as that valuation was not received until late on 10 January 2014 it was not possible for him to have, in any event, prepared any affidavit material.  He also submits that advice was being sought by the wife from the trustee of the estate of her first husband in relation to the life interest in general.  The husband’s solicitor makes the point that the only evidence that he could have provided to the Court would have been a chain of correspondence with respect to the differences of opinion as to the life interest valuation.

7. Generally speaking, in cases in this Court, parties each bear their own costs. That general rule, however, is subject to s 117(2) of the Family Law Act 1975 (Cth) 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. The parties both agree, in this case, that if I do determine that I should make an order for costs that I should fix those costs.

8. 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 those matters is a matter for the discretion of the Court.

9. I do not have any evidence before me in relation to the financial circumstances of the parties save and except for the financial statements that they both filed at the commencement of these proceedings. 

10. The financial statement filed on behalf of the wife discloses that she owns property with a value of approximately $58,000, and that she has superannuation entitlements of approximately $478,000 and liabilities of approximately $19,000.  Her average weekly income is $2,337 and she has a total personal weekly expenditure of approximately $1,400.

11. The husband, for his part, discloses that he owns property valued at approximately $1.9 million.  He has superannuation of approximately $500,000 and liabilities of approximately $103,000.  He discloses an income of $628 and weekly personal expenditure of $1,137.  I am satisfied that the financial circumstances of the husband are such that, in the event that I make an order for costs, he is in a position to meet that order, and whereas the wife has income which would appear to significantly exceed that of the husband, she has significantly less by way of assets. Neither of these parties is in receipt of legal aid. 

12. The proceedings in this case were not necessitated by the failure of a party to the proceedings to comply with the previous order and there is no offer in writing by either party with respect to these proceedings.  The relevant factors, in my view, are the conduct of the parties in the proceedings and, to some extent, the fact that essentially the husband has been wholly unsuccessful in relation to his application this day.

13. Evidence in this Court is by way of affidavit.  The Court is not in a position to make orders today because there is no evidence to support the orders that are sought.  I am not satisfied that the fact that the valuation was only recently received would have precluded the husband from filing the necessary affidavits in support of his application.  Whilst the valuation of the property which was recently received may impact ultimately on the valuation, it would not, in my view, have precluded evidence as to what should be valued or the methodology of that valuation.

14. I am satisfied that this matter could not proceed because of the husband’s failure to file affidavits in support of his case and I am satisfied that the circumstances in this case would justify a departure from the general rule that each of the parties bears their own costs of these proceedings.  In relation to the question of the quantum of those costs, Ms Williams’ brief fee is $1,800 and her instructing solicitor’s costs of this day, based upon the scale, amount to $1,093, a total of $2,893.

15. It was submitted on behalf of the husband that, although there was no dispute with Ms Williams’ fee as such, that because Ms Williams had another matter therefore her instructing solicitor was required to be in attendance for longer than might otherwise have been necessary and, accordingly, that the amount claimed by the instructing solicitor should be somewhat less.  I am not satisfied that that is the case.

16. This matter was stood down for the parties to have some discussions.  It is a busy duty list.  There were other matters proceeding and it proceeded when there was time available to do so.  At worst, Ms Williams was not able to commence her other matter in any real sense until after the luncheon adjournment so, in all of the circumstances, I consider the amount claimed by Ms Williams on behalf of the wife to be reasonable and I propose to make an order for costs in those terms.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 15 January 2014.

Associate: 

Date:  17 November 2014