Lao and Evett

[2016] FamCA 61

FAMILY COURT OF AUSTRALIA

LAO & EVETT [2016] FamCA 61

FAMILY LAW – COSTS - Between solicitor and client – Previous ex parte orders for costs in favour of the wife’s solicitor – Application to set aside previous orders in relation to the costs of the solicitor’s application – In circumstances where the costs application was without notice to the wife and the issue can be dealt with again on the basis of submissions – Appropriate for the costs order to be set aside and the issue be determined on a defended basis.

Family Law Rules (Cth) rr 1.11, 5.12

Evett & Lao [2015] FamCA 723

APPLICANT: Ms Lao

RESPONDENT: Mr Evett

FILE NUMBER: PAC 2326 of 2013

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Shaw

Orders

1. That the order for costs made on the 19 August 2015 be set aside pursuant to rule 1.11 of the Family Law Rules 2004 (Cth).

2. That the application for costs by the solicitor proceed by way of written submissions with the solicitor to file and serve submissions by 26 February 2016 and the wife to file and serve her submissions in response by 11 March 2016 with any submissions in reply by the solicitor to be filed and served by 24 March 2016.

3. Judgment as to costs reserved from the date of last submissions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Evett & Lao 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 PARRAMATTA

FILE NUMBER: PAC 2326  of 2013

Ms Lao

Applicant

And

Mr Evett

Respondent

REASONS FOR JUDGMENT

1. On the 19 August 2015 ex parte orders were made in this matter as follows:

   1.        That the Applicant Solicitor have leave to proceed ex parte.

   2.The Applicant Solicitor [Mr Evett] have a lien to the extent of $100,000 over monies payable to the Wife pursuant to orders made on 27 May 2015 by the Husband in consideration of which the Wife is to transfer her interest in the property at [B Street Suburb C] to the Husband.

   3.That by reason of the lien referred to above the Solicitor [Mr Evett] shall do all things necessary and sign all necessary documents so as to direct the Husband on payment of funds to the Wife pursuant to order made on 27 May 2015 to pay directly to the Solicitor the sum of $100,000 from funds otherwise payable to the Wife.

   4.That the Solicitor [Mr Evett] deposit those funds in an interest-bearing controlled monies account on trust for the Wife pending agreement as to costs payable to the Solicitor or assessment of those costs on taxation.

   5.That upon agreement between the Solicitor and the Wife as to the Solicitor’s costs or in default of agreement upon completion of taxation or assessment the amount so assessed or taxed as due and payable to the Solicitor may be deducted by the Solicitor from the controlled monies account with the balance then remaining payable to the Wife.

   6.That the Applicant Solicitor [Mr Evett] shall have a charge over the Wife’s interest in the property at [B Street, Suburb C] to the extent of his lien for costs as determined above and in respect of that charge be at liberty to register a caveat over the Wife’s interest in the said property pending discharge of his lien.

   7.The Respondent Wife pay the Applicant Solicitor’s costs of this application as agreed within one month from the date of this order or as assessed.

2. Reasons for Judgment are to be found at Evett & Lao [2015] FamCA 723.

3. The orders gave the wife’s former solicitor a lien over proceeds of sale of a property owned by the wife pending assessment or agreement as to the solicitor’s costs.

4. As to procedural fairness the Reasons for Judgment provide:

   9.        However the application is brought before this Court on an ex parte basis but in circumstances where endeavours have been made to notify the wife, who, it appears from the affidavits relied on by the solicitor has, as it were, gone to ground. The wife currently has a conveyancer acting on her behalf in relation to the conveyancing transaction relating to the acquisition of her interest in the subject property by the husband. 

   10.      The solicitor in his affidavit filed in Court today gives evidence of endeavouring to communicate with the wife on a mobile number known to him with the response that the message was diverted to an invalid number.  He has endeavoured to make other communication with the wife, and this morning via facsimile transmission at 8.39 am he forwarded a letter to the conveyancing firm [D & Associates]. That letter annexed a copy of the present Application in a Case confirming that the hearing date of the present application was today at 2.15 pm. 

   11.      The solicitor further caused to be forwarded by email transmission to the wife’s email address a copy of the Application in a Case seeking orders, with that application clearly demonstrating it being listed at 2.15 pm today. The email address to which the applicant solicitor forwarded a copy of the application was the email address used by the wife during the period of his retainer by the wife. 

   12.      In all of the circumstances, and having regard to the urgency of the matter, the Court is comfortably satisfied that it is appropriate to make the orders sought giving effect to the application by the applicant solicitor on an ex parte basis. 

   13.      Otherwise, the applicant solicitor seeks an order for his costs of and incidental to the present application. The wife is on notice as to the order for costs as sought by reason of her being provided with a copy of the Application in a Case in circumstances referred to above.    

5. An order for costs of the application was made in favour of the solicitor.  It appears that the wife has received communication from the solicitor that such costs are sought in the sum of about $6,000.

6. The wife brings her application seeking that costs order be set aside in order that she may be heard. The wife has also filed an Appeal as to the costs order and that Appeal is pending but awaiting the outcome of this present application.

7. The wife has no issue with the orders as to the solicitor’s lien pending assessment of the primary costs.

8. It is clear that English is the wife’s second language and she had difficulty in expressing herself to the Court. The wife says that she was not at home when the process server attended in relation to the solicitor’s application. She did not receive calls to her on her mobile phone. The first she knew of the application was when her new solicitors received a copy of the orders.

9. She seeks to be heard as to costs of the solicitor’s application.

10. The Court has power to set aside orders made under the Family Law Rules 2004 (Cth) (r1.11). The solicitor was permitted to agitate his primary application and costs application under r 5.12 that permits applications without notice. Rule 5.12 was fundamental to the costs order being made in the wife’s absence.

11. In circumstances where the application was without notice to the wife, despite attempts as to personal service and notification, and the issue is a matter that can be dealt with again on the basis of submissions, it is appropriate that the costs order made on 19 August 2015 be set aside and the issue be determined other than on an ex parte basis.

12. Orders will be made accordingly.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 February 2016.

Associate:  Emma Beesley

Date:  11 February 2016