Lowe and Hobson and Anor

[2013] FamCA 799

FAMILY COURT OF AUSTRALIA

LOWE & HOBSON AND ANOR [2013] FamCA 799

FAMILY LAW – Joinder; Section 90SM(10); Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Lowe

RESPONDENT: Ms Hobson

2^ND RESPONDENT  Ms B Hobson

FILE NUMBER: MLC 5117 of 2013

DATE DELIVERED: 3 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: John Conquest Lawyers

SOLICITOR & COUNSEL FOR THE

1^ST RESPONDENT:

Mr Andreou

SOLICITOR & COUNSEL FOR THE

2^ND RESPONDENT:

Lennon Mazzeo Lawyers; Mr Kinnersley

Orders

1. That pursuant to s 90SM(10) of the Family Law Act 1975 (Cth), Ms B Hobson is joined as a respondent to the proceedings.

2. That there be reasons for judgment this day transcribed and be made available to the parties and placed on the court file.

3. That all outstanding parenting issues of an interim nature are adjourned to 1 November 2013 at 10.00am before Senior Registrar FitzGibbon.

4. That the second respondent file and serve a response by 4.00pm on 18 October 2013.

5. That by 4.00pm on 25 October 2013 each party serve upon the other, a list of documents they require from that party by way of disclosure and each party thereafter within a further 28 days, provide the requested documents for inspection and copying subject only to any objection on the grounds of privilege.

6. That the applicant have leave to file and serve a valuation of the real property in the name of the second respondent and the respondent and second respondent do all things necessary to enable that valuation to occur at the expense of the applicant.

7. That the parties attend a conciliation conference with a registrar at 9.15am on 17 January 2014.

8. That the second respondent pay the applicant’s costs fixed in the sum of $4000 and there be a stay in respect of the payment for a period of four months from this date.

9. That save as to parenting matters, all other interim applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lowe & Hobson 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 MELBOURNE

FILE NUMBER: MLC 5117 of 2013

Mr Lowe

Applicant

And

Ms Hobson

1^st Respondent

And

Ms B Hobson

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application brought into the duty list effectively by an amended initiating application brought by Mr Lowe and filed on 21 August 2013. The fifth interim order or procedural order that he seeks is that pursuant to section 90SM(10) of the Family Law Act 1975 (Cth) (“the Act”), Ms B Hobson, who is the mother of the respondent, be joined as a respondent to the proceedings.

2. Section 90SM(10) says that any person who may be affected by an order of the court not only has a right to be heard but must be joined to the proceedings and that is reinforced by chapter 6 of the rules which again requires that somebody be joined if there is a prospect that they may be affected by an order.

3. Mr Lowe asserts in his material that he had a conversation saying that the property was to be for him and for his then partner but for reasons which do not matter at the moment, it was not purchased in that way, nor was the mortgage commitment orchestrated that way. 

4. Subsequent to the purchase of the property Mr Lowe says he did considerable construction, improving the property the legal interest of which lay with the mother.  That work is disputed.  The mother’s position is that he was indeed doing damage to the property.  I am not in a position to determine who is telling the truth and no doubt each of the parties will have their day in court at horrendous expense and face the prospect that in a case like this, one of them will be found not to be telling the truth. 

5. It seems to me, even reading all of the material, there can be no mistake here.  There is quite a deliberate attempt here to paint a picture which is not true.  Whichever the person is that is in that position will no doubt face a very significant costs bill in the end. 

6. I have to work off the material of the person who is making the assertion. Mr Lowe says that this is property of the parties, albeit it is only an equitable interest, on the basis that the legal title to the property is owned by the respondent’s mother and orders are indeed sought against her. I must, under the Act and under the rules, join her as a party. On that basis I propose to do so.

RECORDED:   NOT TRANSCRIBED

1. This is an application by the applicant by the applicant for costs. Section 117 of the Act provides that in proceedings in this jurisdiction each party shall bear their own costs unless there are circumstances that justify a departure from that principle. One of the questions the Court therefore has to consider is whether or not there is a justifiable circumstance. In this case the applicant asserted that the second respondent was holding and is holding a real property on trust for him. He has gone to the extent of having a statement of claim prepared making that assertion.

2. The evidence appears to be sufficient, for the purposes of the joinder, for me to have made the orders that I already have.  In relation to the cost issue, however, it seems that the applicant through his solicitors wrote to the respondent on two occasions and was met with deathly silence.  That prompted then the proceedings before the registrar and ultimately the registrar said that the matter was beyond her power and transferred it to the duty list.  In circumstances where parties, even if they’re right, ignore the claims of others requiring proceedings to be issued in my view that is a justifiable circumstance to depart from the normal rule that each party pays their own costs.

3. Before making an order, however, s 117(2A) requires the Court to contemplate a number of factors. One of those factors is the financial circumstances of each of the parties. I have the financial circumstances statement of the father, so I understand his position. I am told that the second respondent, who has effectively created this problem today, is a disability support pensioner. However, it seems that on any view of the facts she has some considerable equity in the property that is in dispute, and she has a tenant in the property as she has described it.

4. On that basis I could not find that she is impecunious.  She may have a cash flow problem but in terms of her financial circumstances I would not find that she is simply without any assets.  I propose to make an order in this particular case and I am told that there is no legal aid consideration.  I have already mentioned the fact the second respondent has not taken a proactive part in these proceedings until after the proceedings began, and on that basis it seems that an order for costs is justified.

5. The costs thrown away, in my view, should be calculated on the scale.  I propose to allow $4000 in total.  That includes the solicitor’s fees and counsel’s fees in respect of the matters today.  I propose in the circumstances though to not make an order that it be paid within 28 days but, indeed, in four months.  So there will be a stay of four months in respect of the payment of $4000.  I will otherwise make orders in terms of the matters that I have previously outlined.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 October 2013.

Associate:

Date:  16 October 2013