Leng and Lau & Anor

[2015] FamCA 980

FAMILY COURT OF AUSTRALIA

LENG & LAU AND ANOR [2015] FamCA 980

FAMILY LAW – CONTRAVENTION – INDEMNITY COSTS – Contravention application by the wife against the second respondent – Where the second respondent contravened Orders of the Court restraining him from entering the business premises occupied by the wife and from retaining items belonging to the business – Where the second respondent contravened Orders by signing documents on behalf of the company that operated the business – Where there was no evidence of reasonable excuse – Where the Court was satisfied that the second respondent intentionally failed to comply with Orders and there was evidence that his contraventions were deliberate and flagrant – Where the proceedings brought by the wife were entirely necessitated by his breach – Where the actions of the second respondent constituted exceptional circumstances such as to justify an order for indemnity costs – Costs also ordered against the second respondent to reimburse the wife for expenses incurred to rectify damage to the business premises caused by his actions and in relation to an unsuccessful objection by him to a subpoena issued by the wife.

Family Law Act 1975 (Cth) ss 117, 112AD

Prantage & Prantage (2013) FLC 93-544

APPLICANT: Ms Leng

RESPONDENT:	Mr Lau
2nd RESPONDENT:	Mr Headon

FILE NUMBER: SYC 734 of 2014

DATE DELIVERED: 10 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

THE 1^ST RESPONDENT: Excused from this hearing

THE 2^ND RESPONDENT: No Appearance

Orders

IT IS ORDERED

1. That by way of a final Order, Mr Headon be and is hereby restrained, in any capacity asserted or otherwise, from entering or approaching within five hundred (500) metres of the property situated at Property 1-2, E Street, Suburb F in the State of New South Wales.

2. That within one month of the date of these Orders, Mr Headon pay to the wife the following sums:

   1.1 The sum of $10,000 being costs of the wife’s application and amended application in relation to contravention.

   1.2 The sum of $20,506 in relation to the wife’s application in a case filed 18 August 2014.

   1.3 The sum of $2,640 in relation to the costs of the subpoena directed to Mr Headon and his unsuccessful objection.

   1.4 The sum of $8,079 in relation to costs incurred by the wife to secure the business premises of Company C.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leng & Lau and Anor 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 SYDNEY

FILE NUMBER: SYC 734  of 2014

Ms Leng

Applicant

And

Mr Lau

Respondent

And

Mr Headon

2^nd Respondent

REASONS FOR JUDGMENT

1. Ms Leng (“the wife”) and Mr Lau (“the husband”) were, at all times relevant to this application, parties to proceedings for property settlement. Mr Headon (“Mr Headon”) is the brother-in-law of the husband. It is the role which Mr Headon played in the proceedings between the wife and the husband which gives rise to the application now before the Court against him.

2. The proceedings for property settlement were settled as between the wife and the husband on 26 October 2015 leaving outstanding a number of applications by the wife against Mr Headon. The husband indicated that he did not wish to be heard in relation to those applications and was given leave to withdraw.

3. On 26 October, Mr Headon did not appear. Directions were made for service upon him by express post and email of notice that the wife’s applications would be heard on 2 November 2015 and would proceed in his absence if he did not appear.

4. There was no appearance by Mr Headon on 2 November 2015. The wife relied on an affidavit of her solicitor as to compliance with directions as to service and I am satisfied that the proceedings on 2 November 2015 were brought to Mr Headon’s attention.

RELEVANT HISTORY

1. In order to place the applications in context, it is necessary to outline the actions of Mr Headon in relation to these proceedings.

2. The husband and the wife, during their marriage, operated through a company structure, a business known as “Company C” (“the business”). They both worked in the business, at least from 2004, and were both directors and shareholders of the company that controlled the business, B Pty Limited (“the company”). The husband owned more shares in the company than the wife.

3. The husband and the wife separated on about 13 April 2013 but both continued to work in the business although their relationship was increasingly acrimonious.

4. On 5 March 2014, Orders were made which restrained the husband, both in his personal capacity, and as a director of the company, from entering the premises from which the business was operated, approaching clients, suppliers and relevantly, the bank, accessing any bank accounts of the business and from completing any document on behalf of the business. The Orders also required the husband to resign as a director of the company and gave the wife the authority to act as sole director and to operate the business and its bank accounts.

5. On 1 August 2014, without notice to the wife, she was removed as a director of the company and Mr Headon was appointed as director in her stead. The husband, on the same day, transferred his majority shareholding in the company to Mr Headon. This had the effect that Mr Headon was the majority shareholder in the company and the husband and Mr Headon were the directors of the company.

6. On 14 August 2014, Mr Headon went to the business premises. The wife’s sister was working there. Mr Headon handed the wife’s sister a letter which stated that he now controlled the business and directed her to leave. The police were called and Mr Headon was directed to leave the premises. 

7. Also on 14 August 2014, again without the wife’s knowledge, the husband and Mr Headon attended at the Commonwealth Bank of Australia (“CBA”), which was the banker for the business, and executed a document in relation to the business bank accounts which had the effect that only Mr Headon and the husband could sign.

8. On Saturday 16 August 2014, the business was closed, as usual, in the afternoon. The wife’s sister was notified that there was an alarm ringing at the premises and she went to the business premises. There she found a security guard posted outside the premises. Inside Mr Headon and two or three other persons (not the husband), having changed the locks, and chained the gate closed, were removing items belonging to the business. Mr Headon removed the security cameras, the safe and its contents and documents and records of the business. The police were called and everyone was required to leave the premises.

9. On 18 August 2014 Mr Headon was again at the business premises, accompanied by a security guard, attempting to prevent the staff from entering. The wife received telephone calls from suppliers who told her that the accounts of the business had been closed by the husband.

10. Mr Headon deposed that he provided “the Books along with copies of [Company C’s] Bank Statements” to a firm of accountants.

11. On 25 August 2014, Mr Headon provided the same documents to a second accountant, Mr R, and gave instructions to Mr R to prepare a report. Mr Headon asserted, inter alia, that the wife had removed cash from the business. Mr R’s report, addressed to Mr Headon, was sought to be relied upon by the husband in the proceedings and was the subject of objection as Mr R was not able to provide to the wife’s lawyers copies of the documents upon which he relied in his preparation of the report.  

12. The wife filed an Application in a Case on 18 August 2014 which was made returnable on 25 August 2014 before Watts J.

13. On 25 August 2014, the husband appeared with counsel and Mr Headon appeared unrepresented. Watts J. made Orders joining Mr Headon as 2^nd Respondent in the proceedings and directed the husband and Mr Headon to re-instate the wife as a director, transfer the shares held by Mr Headon back to the husband and to remove Mr Headon as director.

14. Mr Headon was ordered to return to the business; the security camera, the safe and all other documents removed from the premises within 24 hours.

15. Mr Headon was restrained from representing to any entity that he had any authority to act on behalf of the business, accessing bank accounts and otherwise doing anything on behalf of the business. The Orders were to be served on the CBA and on the Australian Securities and Investment Commission (“ASIC”).

16. On 26 August 2014, the wife’s accountant rectified the records of ASIC in accordance with his Honour’s Orders. Mr Headon did not return the items he had removed from the business.

17. On 27 August 2014, without notice to the wife and contrary to the Orders made by Watts J on 25 August 2014, the husband again transferred his shares in the company to Mr Headon, Mr Headon was appointed a director of the company and the wife was again removed as a director. Mr Headon signed the relevant documents.

18. On 11 September 2014, the matter was before Loughnan J in relation to further restraining orders sought by the wife. The husband appeared in person. Mr Headon did not appear. On 11 September 2014, Orders were made, inter alia, restraining Mr Headon from coming within 500 metres of the business premises. Neither the Court nor the wife was told of the transactions between the husband and Mr Headon on 27 August 2014.

19. On 12 September 2014, the husband filed an application for a stay of the Orders of Watts J made 25 August 2014. That application came before his Honour on 29 September 2014. The wife appeared with counsel. There was no appearance by the husband or Mr Headon. The application was dismissed.

20. On 15 September 2014, Mr Headon instructed his accountant to advise the wife that there would be a general meeting of the company at 10.00 am on 7 October 2014. Thus it was that, on 16 September 2014, the wife discovered that Mr Headon was again purporting to be a director and shareholder of the company.

21. On 18 September 2014, the wife filed an application seeking that Mr Headon be dealt with for contravention of the Orders of Watts J made 25 August 2014. On 3 November 2014 she filed an amended application seeking to have both Mr Headon and the husband dealt with for contravention.

22. On 10 October 2014 the husband was ordered to transfer his shares in the company to the wife to be held by her, pending further order. Also on that day an Order was made for the husband to pay the wife’s costs of the unsuccessful stay application before Watts J. There was no appearance by Mr Headon.

23. On 27 November 2014, the husband filed an application for the appointment of a receiver/manager to the business, relying on the report and affidavit of Mr R which had been commissioned by Mr Headon and on an affidavit of Mr Headon.

24. The wife’s contravention application came before the Court on 1 December 2014. The husband admitted the contravention. Mr Headon did not appear and the contravention application against him was adjourned to the first day of the substantive hearing on 13 January 2015.

25. On 13 January 2015 the substantive hearing commenced. Mr Headon was present in Court. Senior Counsel for the wife confirmed that the applications against Mr Headon were proceeding. Mr Headon was asked to remain in Court. Mr Headon was asked if he had complied with the Orders of Watts J and returned the records of the business, the security camera and the safe. Mr Headon said that the hard drive from the security cameras had been given to the police. Pressed in relation to the safe and the documents, he said, disingenuously, “To my knowledge everything has been returned to the business”. Mr Headon did not say that he had himself returned the documents or the safe. Neither did he tell the Court how the items had been returned. Throughout the proceedings the wife, who was cross-examined in relation to this issue, has maintained that neither the safe nor all of the documents was returned.

26. The matter did not conclude within the time allotted and was adjourned part-heard to 26 October 2015. Mr Headon was present in Court when the matter was adjourned and was told that he would be required to attend on the adjourned date when the applications against him would be dealt with.

27. On 6 February 2015, the husband’s solicitors forwarded a letter to Mr Headon by email confirming that he was required to attend on 26 October 2015.

28. On 29 July 2015 the wife caused a subpoena to be issued to Mr Headon. It was returnable on 9 September 2015. Mr Headon did not produce the documents requested and did not appear. The return date was adjourned to 23 September 2015. Mr Headon again did not produce the documents requested and did not appear. The return date was adjourned to 14 October 2015.

29. On 24 September 2015 Mr Headon served a Notice of Objection in relation to the wife’s subpoena. Mr Headon again did not appear on 14 October 2015 and the Notice of Objection was dismissed and the subpoena stood over to the first day of the resumed hearing on 26 October 2015.

THE APPLICATIONS

1. The wife seeks the return of items removed by Mr Headon from the business and an order restraining Mr Headon from approaching within 500 metres of the business premises. She seeks the costs of that application.

2. She seeks to proceed with her amended application filed 3 November 2015 that Mr Headon contravened the Orders of Watts J made 25 August 2014 and, if successful, that Mr Headon pay the costs of that application on an indemnity basis.

3. She seeks an order that Mr Headon pay the costs of the Application in a Case filed by her on 18 August 2014 and of her Amended Response to an Application in a Case filed 9 September 2014.

4. She seeks an order that Mr Headon pay the costs of the attendance of her lawyers as a result of his not attending on the return of the subpoena addressed to him and the unsuccessful objection.

5. Lastly, she seeks an order that Mr Headon pay to the business the sum of $8,078.57 being the sum spent to rectify the loss and damage caused by Mr Headon’s actions.

INDEMNITY COSTS

1. The law in relation to indemnity costs has been exhaustively stated in recent decisions of the Full Court of the Family Court of Australia. It is sufficient to say for present purposes that there must be circumstances within the factors set out in s 117(A) of the Family Law Act 1975 (Cth) (“the Act”) which enliven the discretion to depart from the general rule that each party pay his or her own costs and there must be exceptional circumstances to justify the award on indemnity costs or solicitor and client costs. (See for example Prantage & Prantage (2013) FLC ¶93-544).

APPLICATION TO RESTRAIN MR HEADON FROM APPROACHING THE BUSINESS PREMISES

1. The order which is sought by the wife on a final basis was made on an interim basis by Loughnan J on 11 September 2014. Mr Headon did not appear on that occasion.

2. When the matter came before me on 13 January 2015, Mr Headon was informed that the wife continued to seek orders restraining him from approaching the business premises. He responded that he lived in Queensland and has not been near the premises.

3. On other occasions when Mr Headon was given the opportunity to agree to an order restraining him from being in the vicinity of the premises, he was adamant that he would not consent to such a restraint.

4. There is no evidence before me that Mr Headon has been anywhere near the business premises since 18 August 2014. However, Mr Headon’s actions, in breaking into the premises, changing the locks, removing the safe, security cameras and records of the business and using a security guard to prevent the employees from operating the business were both extreme and extraordinary. Mr Headon was a stranger to the business until the husband transferred his shares to Mr Headon. There is no explanation for Mr Headon’s actions other than that he was doing whatever he could to assist the husband to evict the wife from the business and that he was prepared to take the law into his own hands to achieve that end.

5. Mr Headon went to the premises on 18 August 2014 despite the fact that he had been ordered by the police to leave the premises on 16 August.

6. The wife now owns and operates the business. She is entitled to the quiet and uninterrupted enjoyment of the premises.

7. Mr Headon’s refusal to agree that he would not attend at the premises is sufficient to warrant the making of an order restraining him from so attending.

APPLICATION FOR THE RETURN OF ITEMS REMOVED BY MR HEADON FROM THE BUSINESS

1. In relation to the order sought by the wife that Mr Headon return to the business; the safe, the security camera and hard drive and the documents removed by him from the premises, that Order was made by Watts J on 25 August 2014. Before me, Mr Headon has said that to his knowledge all of the documents he removed had been returned. He also said that the hard drive from the security camera had been given to the police. However, in the course of the proceedings it was clear that the hard drive, or a copy of it, was available and was viewed by the legal representatives. It was also clear that a volume of documents had been returned to the wife. Some of the documents so returned were listed in a letter from the husband’s solicitors to the wife’s solicitors dated 19 November 2014 and a further list of documents held by the wife was recorded on the transcript of the proceedings on 16 January 2015.

2. In relation to the safe, Mr Headon told the Court on 13 January 2015 that, to his knowledge, the safe had been returned to the business.

3. There is no evidence which allows me to conclude that Mr Headon retains any of the items which are the subject of the application. Therefore no order will be made in relation to their return.

4. In relation to the wife’s application for costs of that application, no significant additional costs have been incurred in the application for a final order restraining Mr Headon from approaching the premises. The wife has been unsuccessful in relation to her application for a final order that Mr Headon return the business records. I do not propose to make any order for costs.

THE CONTRAVENTION APPLICATIONS

1. By an Amended Contravention Application filed 3 November 2014 the wife sought orders against Mr Headon in relation to alleged contravention of the Orders of 25 August 2014, which will be dealt with individually in these reasons.

2. Orders 3 and 5 of the Orders of 25 August 2014, which are the subject of the wife’s contravention application against Mr Headon, are as follows:

   3         That within twenty-four (24) hours of the date of these Orders the Husband and/or [Mr Headon] shall do all such things as may be necessary to cause items removed from the Company premises at [E Street, Suburb F] on 16, 17 and/or 18 August 2014 to be returned to the Company including but not limited to:

   3.1      The security camera (video recording unit);

   3.2      The safe;

   3.3      Documents from the filing cabinet;

   3.4      Other documents from the said business premises.

   5         That pending further Order and save and except for the purpose of giving effect to these Orders, [Mr Headon] be and is hereby restrained, in his personal capacity and/or in a capacity as an asserted director and/or shareholder of the Company, from:

   5.1      (left blank intentionally)

   5.2      Representing to any person or entity or organisation whatsoever that he has the authority to undertake any action or thing on behalf of the Company;

   5.3      Approaching, contacting or communicating by any means with any contact, client, customer, supplier, referrer, agent, accountant, lawyer, debtor, creditor, bank, financier or employee of the Company; 

   5.4      Accessing any bank account associated with the Company either in person, by cheque, online or at all;

   5.5      Completing, signing or executing any document on behalf of Company; 

   5.6      Changing any passwords or access codes for any email account, server or any other facility associated with the Company; or

   5.7      Otherwise doing any act or thing by or on behalf of the Company.

1. The first allegation against Mr Headon, alleged to have taken place on 26 August 2014, was in the following terms:

   [Mr Headon] contravened Order 3 of the Orders made 25 August 2014 without reasonable excuse by not returning the items belonging to the company [B Pty Limited] trading as [Company C] to that entity

2. Mr Headon was ordered to return the items within 24 hours of the Orders of 25 August 2014. He did not do so.

3. On 4 September 2014, Mr Headon forwarded an email to the wife’s solicitors in which he said, inter alia, “After deep consideration I can not (sic) and will not be a party to company criminal activity by agreeing to [the wife] to continue to operate the company this goes against all ASIC guide lines. The court must be informed”. The email stated that Mr Headon recommended that the company be placed in voluntary administration and that the police had begun prosecution of the wife and concluded, “And all the documents are needed by the police for the fraudulent activities investigation”.

4. For the reasons expressed above, I am not satisfied that the items were not eventually returned, either in part or in whole, but I am satisfied that none of the items were returned within 24 hours as required by the Orders.

5. Mr Headon’s email is evidence of his intention to retain the relevant documents despite the Order of the Court.

6. This allegation is proved.

7. The second to seventh allegations are that on 27 August 2014 Mr Headon contravened Orders 5.2, 5.3 and 5.4 of the Orders dated 25 August 2014 without reasonable excuse by contacting the CBA and accessing or attempting to access the bank account of the company.

8. The Court record establishes that Mr Headon was present and represented himself before Watts J on 25 August 2014 when the Order was made restraining him from “Representing to any person or entity or organisation whatsoever that he has the authority to undertake any action or thing on behalf of the Company”.

9. However, I was not directed to any evidence that Mr Headon contacted or made representations to the CBA on 27 August 2014.

10. These allegations are not proven.

11. The eighth to eleventh allegations are that on 27 August 2014, Mr Headon contravened Orders 5.5 and 5.7 of the Orders dated 25 August 2014 by facilitating and accepting his appointment as director of the company, and the transfer to him of the husband’s shares.

12. Again, the Court record establishes that Mr Headon was present and represented himself before Watts J on 25 August 2014 when the Order was made restraining him from “Completing, signing or executing any document on behalf of the Company” and “Otherwise doing any act or thing by or on behalf of the Company”.

13. Mr Headon does not deny that he did both of these things. The records of ASIC establish that on 27 August 2014, Mr Headon was appointed as director of the company. Mr Headon signed the notification to ASIC. On the same day, ASIC was notified that Mr Headon held 11 shares in the company. Again Mr Headon signed the notification.

14. The documents signed by Mr Headon were signed in his capacity as director of the company. I am satisfied that the documents were signed “on behalf of” the company.

15. These contraventions are proven.

16. Mr Headon did not provide evidence of any reasonable excuse. His email to the wife’s solicitors of 4 September 2014 is evidence that his contraventions were deliberate and flagrant. I am satisfied that Mr Headon intentionally failed to comply with Orders when he signed documents to notify ASIC of his appointment as a director of the company and when he registered the transfer of shares to himself and his appointment as director with ASIC on 27 August 2014.

17. The Orders were clear and specific. Mr Headon was aware of them and present in Court when they were made. He made a decision not to comply with them because he did not agree with them.

18. The twelfth to thirteenth allegations are that on 27 August 2014, Mr Headon contravened Order 5.7 of the Orders of 25 August 2014 by attempting to access the bank account of the company and by contacting the CBA. For the reasons outlined in relation to the second to seventh allegations of the wife, these contraventions are not proved.

19. In relation to penalty for the contraventions that have been proven by the wife, the available options are set out in s 112AD(2) of the Act. Because Mr Headon is not present in Court, a bond is not an available option. I do not consider that the imposition of a term of imprisonment is appropriate.

20. The wife asks the Court to make an order for costs.

21. Consideration of the factors mandated in s 117(2A) suggests this is appropriate. There is no evidence before the Court of the financial position of Mr Headon so the financial circumstances of the wife and Mr Headon cannot be compared. Neither party has disclosed receipt of legal aid. Mr Headon’s conduct has been examined. He deliberately breached an Order of the Court with which he did not agree. The proceedings brought by the wife were entirely necessitated by his breach.

22. Rather than impose a fine, I propose that the wife, who has suffered both inconvenience and costs because of the contraventions should be compensated in costs.

23. Mr Headon’s actions constitute exceptional circumstances such as to justify an order for indemnity costs.

24. Senior counsel for the wife submits that the Court should fix the quantum of costs rather than requiring costs to be assessed or agreed. Having regard to the history of Mr Headon’s involvement in these proceedings there is little prospect of agreement. Assessment is costly and time consuming and there has already been much time wasted and a lot of costs spent as a result of Mr Headon’s actions. Therefore I propose to fix costs.

25. The solicitors for the wife assess their costs at $4,798 at scale. The costs agreements of the solicitors and both senior counsel for the wife are in evidence. She will be charged at a little more than twice the scale rate and accordingly the costs should be fixed at $10,000.

THE APPLICATION IN A CASE FILED 18 AUGUST 2014

1. The Application in a Case filed by the wife on 18 August 2014 was dealt with by Watts J on 25 August 2014. Costs were reserved.

2. The wife was wholly successful and the husband and Mr Headon were ordered to re-instate the shareholding and directorships of the company as they had been before the intervention of Mr Headon.

3. The wife seeks indemnity costs in relation to that application.

4. The considerations are similar to those set out at paragraph 73. The application was necessitated because of the actions of the husband and Mr Headon.

5. The actions of the husband and Mr Headon constitute exceptional circumstances such as to justify an order for indemnity costs, they having wrested control of the company away from the wife and the husband to Mr Headon who had no previous involvement with the company. The actions can only be seen as a deliberate ploy to remove the business from the control of the wife.

6. Because Mr Headon did not appear to make submissions in relation to this application, there was no discussion about whether Mr Headon should pay the whole of the costs of that application or whether the costs should be shared between him and the husband.

7. Senior counsel for the wife submitted that it has at all times been open to Mr Headon to respond to the application and ask the Court to make an order that the husband be held either solely or partially liable for the costs of the application.

8. On behalf of the wife it was submitted that Mr Headon should be held solely responsible. In his affidavit sworn 11 December 2014, Mr Headon deposed:

   I have a close relationship with [the husband]. In the past, [the husband] has often sought my advice in relation to issues he has faced and has in particular asked for my assistance in understanding documents that were written in English due to the limitations in his grasp of the English language.

   In or around April 2014, while visiting Sydney from [Brisbane], Queensland, I met with [the husband] at his house and we had a discussion to the following effect:

   Me:     How is everything going with your court proceedings?

   [The husband]:          About a month ago I agreed in court to give up control of [the business] to [the wife].

   Me:     That’s pretty brave of you. I personally would have been afraid that, with all that is happening between you two, [the wife] will try to drain the business of its cash and keep all of it from you.

   [The husband]:          I am afraid of that as well. The court also ordered me not to go near the property, or deal with the business’ customers, so it’s very difficult for me to find out what is happening.

9. Mr Headon deposed that in August 2014 the husband transferred his shares in the company to him and he, Mr Headon, was appointed a director. He then deposed that he entered the property where the business was conducted and removed the books of account and other documents, and that he gave those records to two separate accountants, commissioning a report from the second firm. It was Mr Headon, not the husband, who took the hard drive of the security system and copies of financial records to the police.

10. It is clear from Mr Headon’s own evidence that in attempting to take control of the business from the wife and removing the financial records he was doing something from which the husband was restrained. Mr Headon was aware, because the husband told him so, that the Court had ordered to husband not to go near the business premises. He took it upon himself to do what he knew the husband could not do, so circumventing the Orders of the Court.

11. Mr Headon went to the CBA to change the bank account details so that the wife could not sign documents. The husband accompanied him. Mr Headon signed the documents lodged with ASIC notifying the change of directorships and the transfer of the husband’s shares to him.

12. Mr Headon does not assert that the husband was the architect of this scheme. Whether it was Mr Headon or the husband who thought of the scheme, it was Mr Headon who primarily executed it. He should pay the costs.

13. On 25 August 2014, the wife’s application for indemnity costs was stood over to 10 September 2014 and then adjourned to 10 October 2014. On that day, costs were reserved to the trial.

14. The wife’s solicitor deposed in an affidavit sworn 9 January 2015, that the costs incurred by the wife were $20,506. No itemised memorandum has been provided. However, there is no challenge by Mr Headon to the amount and I propose to order that he pay the amount of costs incurred.

15. The Amended Response to an Application in a Case filed by the wife on 9 September 2014 sought an order that Mr Headon be restrained from approaching the business premises. That application was successful and Orders were made accordingly by Loughnan J on 11 September 2014. However, the main focus on 11 September 2014 was the orders sought as between the husband and the wife. The order sought against Mr Headon and the evidence in support of that order did not materially increase the wife’s costs and I do not propose to make an order for costs in relation to that application.

COSTS OF THE SUBPOENA TO MR HEADON AND HIS OBJECTION

1. The facts are set out at paragraphs 32 and 33 of these reasons. The wife incurred unnecessary costs by reason of Mr Headon’s non-appearance, failure to produce the documents and his unsuccessful Objection which was rejected by the Registrar.

2. Mr Headon should pay the costs thrown away by his failures but his behaviour in that respect was not such as to justify indemnity costs.

3. The wife’s solicitors assess their costs at scale at $2,640. Mr Headon has not challenged that assessment. It seems reasonable and Mr Headon will be ordered to pay that amount.

COSTS INCURRED TO RECTIFY DAMAGE CAUSED BY MR HEADON AT THE PREMISES

1. At paragraph 152 of her affidavit sworn 16 December 2014, the wife deposed to incurring costs of $8,078.57 to repair and re-install the security system and hire security services while her operation of the business was being re-instated after the Orders of 25 August 2014. The relevant invoices are annexed to her affidavit. The invoices are not challenged by Mr Headon.

2. Those costs were necessitated solely by Mr Headon’s actions in coming to the premises, wresting control from the wife and damaging the security system.

3. The wife should be reimbursed for those costs.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 November 2015.

Associate:

Date:  10/11/2015