Lannon and Lannon and Anor

[2015] FamCA 252

FAMILY COURT OF AUSTRALIA

LANNON & LANNON AND ANOR [2015] FamCA 252

FAMILY LAW – COSTS – An application by the applicant wife for costs against the respondent husband – where the parties filed written submissions – where in this matter the circumstances do not appear to justify a departure from the general principle set out in s 117 of the Family Law Act – application for costs dismissed – no order as to costs

Family Law Act 1975 (Cth), ss 117

APPLICANT: Ms Lannon

FIRST RESPONDENT:

Mr Lannon

SECOND RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

Mr David

Legal Aid G Town

FILE NUMBER:	NCC	1960	of		2013
DATE DELIVERED:	13 April 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 29 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Catalyst Family Lawyers

SOLICITOR FOR THE FIRST RESPONDENT: Rowlandson & Co Solicitors

SECOND RESPONDENT:   In Person

INDEPENDENT CHILDREN’S LAWYER:                  Not Applicable

Orders

1. Application for Costs made 29 January 2015 is dismissed.

2. No order as to costs.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1960 of 2013

Ms Lannon

Applicant

And

Mr Lannon

First Respondent

And

Mr David
Second Respondent

And

Legal Aid G Town
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant wife and the respondent husband have outstanding final applications for adjustment of interests in property due to be heard in this Court over 4 days commencing 21 April 2015.

2. On 23 January 2015 the applicant filed an Application in a Case supported by two Affidavits, one by herself and one by her partner, Mr B.

3. The respondent to the application is the former husband of the applicant.

4. The application was made returnable at 9.30 am on 29 January 2015.

5. The orders sought by the applicant were:

   a)Expedition;

   b)A restraint by way of injunction on the respondent from registering a caveat on a property at Suburb C owned by herself and Mr B;

   c)A restraint by way of injunction on the respondent “from engaging in any acts or doing anything likely to cause settlement of the sale of the property to occur”. I note this was undoubtedly intended to be a restraint on the respondent doing anything to disrupt settlement of the sale; and

   d)Costs of the application.

6. The application was served by facsimile received in the office of the respondent’s solicitor at 5:03 pm on that day.

7. The solicitor for the respondent sighted the sealed copies on the morning of Tuesday 27 January 2015 (after the Australia Day long weekend).

8. The sale of the subject property was settled on 27 January 2015.

9. The application came before the Court on its first return date on

   
   

   29 January 2015.  On that day both parties were legally represented.  

10. The applicant did not proceed with the application which was dismissed.  The applicant pressed for costs. The respondent had not expected in the circumstance that the application would proceed and was not on notice of the costs application.

11. Directions were made for the filing of written submissions in respect of costs.

12. Both parties have complied with those directions.

Brief History of the Relevant Events

1. The issue giving rise to the application was the sale of a property at Suburb C.

2. This property had been purchased 12 months prior by the applicant and Mr B. They had borrowed the funds to buy the property from the bank and from family members.

3. It is alleged by the respondent that the applicant withdrew the  sum of $16,037 from the joint account of the applicant and the respondent to assist the purchase. The Applicant denies that joint funds were used to any extent in the purchase.

4. In mid-2014 Mr B had been injured at work and the Suburb C property was subsequently put on the market for sale, due to the reduced financial circumstances of himself and the applicant.

5. They took deliberate steps not to advertise the sale in order to avoid the sale coming to the attention of the respondent or Mr B’s former wife. This was an ill-advised course given that the parties’ financial affairs have not yet been finalised by the court.

6. The applicant and Mr B both expressed fears in their respective affidavits that the respondent or Mr B’s former wife, would “attempt to sabotage the sale of the property”.[1]

   [1] Applicant’s Affidavit filed 23/01/2015, par 9

7. On 8 December 2014 Contracts were exchanged for sale.[2]

   [2] Applicant’s Affidavit filed 23/01/2015, Annexure C

8. Settlement was anticipated for 27 January 2015.

9. On 8 January 2015 the applicant notified the respondent of the sale and projected settlement date.[3]

   [3] Applicant’s Affidavit filed 23/01/2015, Annexure D

10. On 19 January 2015 solicitors for the respondent wrote expressing the displeasure of their client over lack of earlier notice of the sale. The solicitors also raised the issue of a debt owed by the applicant to the respondent, namely an outstanding costs orders made in G Town Local Court on 20 August 2014.

11. As it happened, an order for costs in a different court, the Federal Circuit Court at Parramatta, had been made against Mr B in favour of his former wife also in August 2014.

12. On 23 December 2014 Mr B had received notice of a caveat having been lodged on the Suburb C property by his former wife in respect of the outstanding debt arising from the costs order made against him.

13. The applicant became fearful that a caveat would be lodged by the respondent on the property prior to the settlement of the sale.

14. Intense negotiations took place over irrevocable authorities being given by the applicant for the debt arising from a costs order and an amount equivalent to the alleged joint funds being paid out of the proceeds of sale.

The Law

1. The general principle set out in s 117 of the Family Law Act 1975 (Cth)

   
   

   (“the Act’) is that each party shall bear his or her own costs.

2. If the court is of the opinion that there are circumstances that justify it in doing so, the court may, having regard to defined considerations, make such order as to costs as the court considers just.

Conclusion

1. In this matter the circumstances do not appear to justify a departure from the general principle set out in s 117 of the Act.

2. The respondent did not lodge a caveat on the title to the Suburb C property nor did he give notice of an intention to do so.  

3. There was a letter from the solicitors for the respondent on 21 January 2015 in which it was said that the respondent would not lodge a caveat on certain conditions in relation to irrevocable authorities.

4. However it is apparent that no step was taken.  It is likely that legal advisers for both parties recognised that the respondent did not have a caveatable interest and further that the appropriate recourse would have been to the Supreme Court if that had happened.

5. I also take into account the fact that the sale of the property settled on

   
   

   27 January 2015 as anticipated, such that there was no necessity for the application to continue. I note that 27 January 2015 was the next working day after the application had been filed.

6. Further I take into account the lack of notice to the respondent that costs were to be pressed.  It could hardly have been anticipated that they would be.

7. Accordingly, I am not required to consider the defined considerations in

   
   

   s 117(2A) of the Act and the application for costs will be dismissed.

8. Orders are made accordingly

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 10 April 2015.

Associate:     

Date:  10 April 2015