Liatos and Silid (No.2)

[2009] FamCA 716

FAMILY COURT OF AUSTRALIA

LIATOS & SILID (NO. 2) [2009] FamCA 716

FAMILY LAW – COSTS – Costs sought on indemnity basis for failed application to have Applicant’s solicitor restrained from acting – Counsel’s costs agreement – costs ordered but not on an indemnity basis
FAMILY LAW – COSTS – Indemnity costs claimed for failed application to transfer proceedings to the Supreme Court of NSW – Indemnity costs not appropriate – Order for costs made
FAMILY LAW – COSTS – Indemnity costs claimed for application to extend time to dispute costs – Whether costs were increased by the Respondent’s conduct – Indemnity costs not appropriate – Respondent to pay Applicant’s costs

APPLICANT: Ms Liatos

RESPONDENT: Mr Silid

FILE NUMBER: SYC 579 of 2007

DATE DELIVERED: 30 July 2009

PLACE DELIVERED: Brisbane – in Chambers

PLACE HEARD: Sydney

JUDGMENT OF: Barry J

HEARING DATE: 17 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jarrett of Counsel appeared for the Applicant

SOLICITORS FOR THE APPLICANT: Marello Lawyers & Associates

COUNSEL FOR THE RESPONDENT: The Respondent appeared in person

Orders

1. The Respondent pay the costs of the Applicant’s solicitor in relation to the application for the solicitor to be restrained from acting for the applicant fixed at $2,750.

2. The Respondent pay the Applicant’s costs of and incidental to the failed application to have these proceedings transferred to the Supreme Court of New South Wales such costs to be as agreed or as assessed.

3. The Respondent pay the costs of and incidental to the application for an extension of time in which to file a Notice Disputing Costs, as agreed or as assessed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 579 of 2007

MS LIATOS

Applicant

And

MR SILID

Respondent

REASONS FOR JUDGMENT

1. On 17 July 2009 for reasons given I made orders extending the time in which the Applicant Wife may file a Notice Disputing Costs owing to the Respondent.

2. I dismissed the applications by the Respondent to restrain the Applicant Wife’s solicitor from acting in the proceedings together with an additional application to transfer these proceedings to the Supreme Court of New South Wales.

3. Counsel for the Applicant seeks an order the Respondent be responsible for costs on an indemnity basis in relation to the failed application to restrain the Wife’s solicitor from acting.

4. The Applicant Wife’s solicitor Ms Marello was separately represented by Counsel.  Counsel for the Applicant Wife on 17 July 2009 tendered the costs agreement between Mr Cook of Counsel and the Solicitor, Ms Marello and a copy of a memo of fees rendered.

5. In relation to that appearance I propose to certify for Counsel for separate representation of the solicitor.  The appearance by Counsel was not subject to any challenge by the Respondent.

6. The Respondent who appeared on his own behalf did not oppose an order for costs in relation to this failed application but argued it was not an appropriate case for indemnity costs.  He drew the Court’s attention to the fact that the costs agreement was dated 13 July and the memo of fees included a charge for “reading affidavit material (3 hours) at $1,050.00 on 12 July”.  I note the

   
   

   12 July was a Sunday and perhaps Counsel was claiming overtime. 

7. I accept the fee for any work done prior to the signing of a costs agreement prima facie should be charged on scale only.

8. Presumably this will be the subject of a more rigorous submission in relation to the Respondent’s own costs agreement in the costs dispute with the Applicant Wife.

9. The Respondent pointed out the only paragraphs of his affidavit relevant to this issue were paragraphs 3 to 32 of his affidavit.

10. Whilst I accept this is so (though the paragraphs were of questionable relevance) I bear in mind that Counsel would have had to peruse other affidavits filed in the matter to ensure there were no relevant aspects canvassed in such material.

11. The Respondent had sought an order restraining Ms Marello from acting in both this jurisdiction and the Supreme Court of New South Wales.

12. In relation to the attempt to restrain from acting in the Supreme Court I dismissed such application out of hand.

13. Ms Marello appeared instructing Mr Cook of Counsel although she would have been in attendance instructing the Applicant Wife’s Counsel in any event.

14. I accept the submission the point involved was a discrete point however the matter was listed at 10.00 am and not brought on until approximately 2.30 pm. 

15. Total costs claimed by Counsel amount to $4,125.00.  I find it is not an appropriate case to award costs on an indemnity basis.

16. I propose to assess costs of and incidental to this application including Counsel’s fees at $2,750.00.

The Application to Transfer the Proceedings to the Supreme Court

1. I dismissed this application for the reasons given.  The Respondent argues there were only six paragraphs on one page of his affidavit relevant to this issue.  He says the basis of the application was to reduce the costs of all parties by having all issues determined in the one jurisdiction.

2. Counsel for the Applicant submitted the Respondent was motivated to distract the Applicant from the substantive issues and constituted an abuse of process.

3. I am unable to make such a finding on the evidence available.  If I was able to conclude the application was designed for that purpose I would unhesitatingly award indemnity costs.

4. Whatever the reason the application was brought I am satisfied there was no merit in it.  The consequence of a successful application would have been to have the costs incurred in this jurisdiction assessed by a Registrar of the Supreme Court – an outcome I would view as inappropriate.

5. I will order the Respondent to pay the Applicant’s costs of and incidental to the failed application to have these proceedings transferred to the Supreme Court of New South Wales such costs to be as agreed or as assessed.

The Costs associated with an application for an Extension of Time Within which to File a Notice Dispute Costs

1. It was submitted that although such an application requires the indulgence of the Court the Respondent elected to oppose the application and oppose it strenuously.

2. Annexure Q to the Applicant Wife’s affidavit of 22 June consisted of a letter sent by her then solicitor of 23 December 2008 enclosing the Notice Disputing Costs.  As I have already ruled the delay was not such as to unduly prejudice the Respondent. 

3. Counsel relied on a passage in the judgment of Lindenmayer J in the matter of Strudwick v Johnson at page 800 of the reports.  I have had regard to the passage.  I accept his Honour’s observations made at that time that an extension of time requires the exercise of a Judicial discretion and is not something which can strictly be granted by consent.  However here the costs were significantly increased by the Respondent’s conduct.  In view of the amount in dispute in general circumstances I am of the view he should have indicated the application would not be opposed.  In the circumstances I propose to order that the Respondent pay the costs of and incidental to the application for an extension of time in which to file a Notice Disputing Costs, as agreed or as assessed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  30 July 2009