Leventis & Leventis (No 2)
[2021] FedCFamC1F 87
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Leventis & Leventis (No 2) [2021] FedCFamC1F 87
File number(s): MLC 7710 of 2018 Judgment of: WILSON J Date of judgment: 29 September 2021 Catchwords: FAMILY LAW – COSTS – applicant sought costs in the sum of $135,005.10 – costs ordered pursuant to s 117(1). Legislation: Family Law Act 1975 s 117(1). Cases cited: Leventis & Leventis [2021] FedCFamC1F 46
Re Albert (a barrister) and Re McLean (a solicitor) [2021] VSC 297
Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 3 September 2021 Place: Melbourne Counsel for the Applicant: Dr E. Kelly Solicitor for the Applicant: Nicholes Family Law Counsel for the First Applicant: Dr R. Ingleby Solicitor for the First Applicant: Vadarlis & Associates Counsel for the Second and Third Applicants: Mr P. Panayi Solicitor for the Second and Third Applicants: Pauline Madden Conveyancing & Legal ORDERS
ML C7710 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LEVENTIS
Applicant
AND: MR LEVENTIS
First Respondent
MR B LEVENTIS
Second Respondent
MS G LEVENTIS
Third Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The wife’s reserved costs are to be her own costs under s 117(1) of the Family Law Act 1975.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Leventis & Leventis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Following the handing down of my reasons on 15 September 2021,[1] the solicitors for the applicant emailed my chambers asserting that those reasons did not address an application made by the wife in which the wife sought an order that the joined respondents pay the wife $135,005.10 in costs.
[1] Leventis & Leventis [2021] FedCFamC1F 46.
These reasons address the wife’s claim for those costs.
On behalf of the joined parties it was put that any such claim by the wife for those costs is inappropriate as I was functus officio, citing Re Albert (a barrister) and Re McLean (a solicitor).[2]
[2] [2021] VSC 297.
The wife’s claim for the sum of $135,005.10 has not been assessed as to quantum. It is, at present, an ambit claim.
The solicitor for the joined respondents took exception to the manner in which the wife’s application was brought to my attention, that is to say, by email subsequent to the publication of my reasons.[3] There is merit to that point. It is not appropriate for solicitors to address email correspondence to the judge whose decision was handed down the same day pointing out what is or what was not addressed in the judge’s reasons. It is also not appropriate for those same solicitors to inform the judge’s associate what their clients may or may not do by way of seeking an extension of time so as to address other extant matters in the proceeding. Such issues are matters between those solicitors and their clients. In any subsequent consideration of costs in this case, if costs are ultimately awarded, those costs of that correspondence may well be disallowed. Solicitors are bound by a higher duty to this court than to engage in such inappropriate correspondence.
[3] Leventis & Leventis [2021] FedCFamC1F 46.
My latest reasons[4] addressed the precarious financial position of the parties. When application was made for a part property order I refused it by reason of the serious risk that exists that any sum ordered by way of part property settlement may turn out to be irreversible. I also ordered each party to bear his or her own costs.
[4] Ibid.
On this application the wife seeks her costs thrown away. The precarious financial condition of the parties remains a critical issue in this case. Any order for costs, to be paid ahead of trial, necessarily diminishes whatever is left of the property in this case. In making any order as to costs, prior to the trial of this proceeding, I would proceed in a manner that is not just because the party in whose favour the costs order was made would thereby acquire a financial advantage over the other parties to the extent that his or her financial capacity to meet his or her costs would be commensurately enhanced.
As with the other costs applications ordered on 15 September 2021, the wife’s reserved costs are to be her own costs under s 117(1).
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 29 September 2021
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