Letson and Rigas

[2020] FamCA 680

FAMILY COURT OF AUSTRALIA

LETSON & RIGAS [2020] FamCA 680

FAMILY LAW – COSTS – where the husband filed an application in a case for the appointment of a single expert valuer – where the wife initially opposed that position – where the wife eventually consented to the appointment of the single expert as sought by the husband – where the husband seeks costs on a party/party basis according to the scale – consideration of s 117 – where the husband attempted to resolve the matter by correspondence prior to filing an application – where the wife was wholly unsuccessful in her opposition of the orders sought by the husband – costs ordered in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3

APPLICANT: Ms Letson

RESPONDENT: Mr Rigas

FILE NUMBER: MLC 3570 of 2019

DATE DELIVERED: 16 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Vatmanidis, Collins House Legal

COUNSEL FOR THE RESPONDENT: Ms Bryan

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

BY CONSENT IT IS ORDERED

Retrospective Valuations

1. That pursuant to Rule 15.45 of the Family Law Rules 2004, on or before the expiration of two business days’, the parties do all acts and things necessary and sign all such documents as may be required to appoint H Valuers to prepare historical valuations as at 1 December 2012 and 1 October 2013 for the following properties:

   (a)B Street, C Town (Certificate of Title Volume …, Folio …)

   (b)D Street, Suburb F (Certificate of Title Volume …, Folio …);

   (c)G Street, Suburb K (Certificate of Title Volume …, Folio …);

   (d)L Street, Suburb M (Certificate of Title Volume …, Folio …).

2. That pursuant to Rule 15.45 of the Family Law Rules 2004, on or before the expiration of two business days’ the parties do all acts and things necessary and sign all such documents as may be required to appoint N Company to prepare historical valuations as at 1 December 2012 and 1 October 2013 for the following properties:

   (a)P Street, Suburb Q (Certificate of Title Volume … Folio …);

   (b)R Street, S Town (Certificate of Title Volume … Folio …); and

   (c)R Street, S Town (Certificate of Title Volume … Folio …).

3. That in respect of orders 1 and 2:

   (a)     the De Facto Husband pay the costs of the reports at first instance; and

   (b)the De Facto Wife pay to the De Facto Husband one half of the total amounts of all invoices rendered by the single experts for the preparation of their reports (Property Report Costs) with such payment to be made by deducting the Property Report Costs from any payment of monies to be made by the De Facto Husband to the De Facto Wife or any disbursal of monies from the sale of real property registered in the name of the De Facto Husband to the De Facto Wife pursuant to Final Orders.

Taxation report

1. That pursuant to Rule 15.45 of the Family Law Rules 2004, on or before the expiration of two business days’ the parties do all acts and things necessary and sign all such documents as may be required to appoint Mr V of W Accountants to provide a report in relation to taxation, including but not limited to taxation arising from any capital gain, that is likely to be payable as a consequence of the sale of each of the following properties:

   (a)X Street, Suburb Y (Certificate of Title Volume …, Folio …);

   (b)B Street, C Town (Certificate of Title Volume …, Folio …);

   (c)D Street, Suburb F (Certificate of Title Volume …, Folio …);

   (d)G Street, Suburb K (Certificate of Title Volume …, Folio …);

   (e)L Street, Suburb M (Certificate of Title Volume …, Folio …);

   (f)Z Street, Suburb Q (Certificate of Title Volume …, Folio …);

   (g)P Street, Suburb Q (Certificate of Title Volume …, Folio …);

   (h)R Street, S Town (Certificate of Title Volume …, Folio …);

   (i)R Street, S Town (Certificate of Title Volume …, Folio …).

2. In respect of order 4:

   (a)    the De Facto Husband pay the costs of the report at first instance; and

   (b)the De Facto Wife pay to the De Facto Husband one half of the total amounts of all invoices rendered by the single expert for the preparation of their report (Taxation Report Costs) with such payment to be made by deducting the Taxation Report Costs from any payment of monies to be made by the De Facto Husband to the De Facto Wife or any disbursal of monies from the sale of real property registered in the name of the De Facto Husband to the De Facto Wife pursuant to Final Orders.

BY THE COURT IT IS ORDERED

1. That the wife pay the husband’s costs of this day in the sum of $2336, and that the operation of the order be stayed for 30 days.

2. The Application in a Case filed 15 July 2020 be dismissed.

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 Letson & Rigas 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 MELBOURNE

FILE NUMBER: MLC 3570 of 2019

Ms Letson

Applicant

And

Mr Rigas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon an Application in a Case filed by the husband yesterday, 15 July 2020.  That application relates to the appointment of single expert valuers to prepare the following:-

   ·    Valuations of real properties held by the parties at the time their relationship commenced; and

   ·    An assessment of capital gains tax liability which may arise in the event of a sale of the parties’ properties in the aftermath of the property proceedings.

2. At the outset the position of the wife in response to that application was that whilst she conceded that were the matter to proceed to trial, the expert evidence as sought by the husband would be necessary, she did not wish to commit to the costs of the appointment of the single expert valuers until after the parties had had the opportunity to attend a mediation.  A mediation is scheduled to occur on 13 August 2020 and the matter is fixed for a final hearing before me to commence on 24 August 2020, some 11 days after the mediation. 

3. It is evident from the communications and correspondence received from the proposed experts that were there to be a delay in the commencement of the preparation of the expert evidence until after the mediation, that evidence would not likely be available to the Court for the purposes of the final hearing.  The effect of that is the final hearing would potentially have to be adjourned. It is for that reason that the application of the husband was pressed this day.

4. Ultimately, during the course of discussion, it was conceded by the wife’s lawyer that the orders as sought in paragraphs 2 to 6 of the Application in a Case were appropriate and that they were orders that could be made by consent.

5. What then remains is the issue of costs.  The husband seeks his costs of and incidental to the Application in a Case filed 15 July 2020 and listed this day.  Although paragraph 7 of the Application in a Case seeks costs on an indemnity basis, that part of the application was not pressed by counsel for the husband, which I consider appropriate given the circumstances. 

6. The amount sought by the husband on a party/party basis on the scale, as provided in Schedule 3 of the Family Law Rules 2004 (Cth), is $2,336. That amount relates to solicitor’s time of one hour, calculated at $251.50, counsel’s fee in relation to today’s hearing totalling $1,210, and the necessary costs associated with the drawing and engrossing of the application and affidavit which total $874.

7. The wife opposes the costs application.  It is her position that there was no real dispute between the parties as to the value of the real properties and the retrospective value of the real properties, given that neither party has articulated what their view is as to value.  Nonetheless, in circumstances where it is conceded and common ground between the parties that such valuation is necessary for the purposes of the trial, I attach little weight to that submission. 

8. There is also some dispute between the parties as to the timing of the mediation, it being asserted that the mediation could have occurred earlier or, alternatively, a different mediator appointed.  At the end of the day, in circumstances where it is agreed between the parties that the mediation is to occur on 13 August 2020 and there is agreement as to the mediator, I attach little weight to those matters.

9. The general rule in relation to costs is that each party to the proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) shall bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the Rules of Court make such order as to costs and security for costs as the Court considers just.

10. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs.  That section provides as follows:-

    (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)such other matters as the court considers relevant.

11. Those circumstances pursuant to s 117(2A) are relevant to the current proceedings as follows:-

    ·    The pool of assets available for the parties is valued at approximately $7.2 million. 

    ·    Neither party is in receipt of legal aid in this matter.

    ·    No submission was made in relation to the conduct of the parties in this matter. 

    ·    No submission was made in relation to a failure of a party to comply with previous orders. 

    ·    The position in relation to this application is that the wife has been wholly unsuccessful in her opposition to the orders sought by the husband.

    ·    Although there was no direct offer made in this matter, the correspondence annexed to the husband’s affidavit indicates that the husband had sought to resolve the issue as to the appointment of single experts in relation to the property valuations on 4 June 2020.

12. Given that the husband has agitated for the resolution of this issue through correspondence, has communicated and sought the wife’s cooperation in the appointment of the expert valuers to ensure that the expert evidence is produced in a timely fashion, coupled with the fact that the wife’s opposition has been wholly unsuccessful, I am satisfied in the circumstances of this case that an order for costs is appropriate. 

13. The wife made no submission as to the quantum of costs sought by the husband. 

14. I am satisfied that the amount sought by the husband is reasonable having regard to the scale.

15. Accorsdingly, I will make orders by consent in the terms of paragraphs 2 - 6 of the husband’s Application in a Case filed 15 July 2020. Further, I will order that the costs of the husband should be paid by the wife and fixed in the sum of $2,336.  I will stay the operation of that order for a period of 30 days.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 July 2020.

Associate: 

Date:  16 July 2020