MANOTIS and MANOTIS
[2016] FCWA 10
•26 FEBRUARY 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MANOTIS and MANOTIS [2016] FCWA 10
CORAM: CRISFORD J
HEARD: 9, 10, 11, 12 MARCH 2015; 29, 30 JUNE 2015; 1, 2, 3 JULY 2015; 2, 3, 4, 7, 8, 9, 10 DECEMBER 2015; 12 JANUARY 2016; 4, 5 FEBRUARY 2016; AND WRITTEN SUBMISSIONS RECEIVED 15 FEBRUARY 2016
DELIVERED : 26 FEBRUARY 2016
FILE NO/S: PTW 2347 of 2004
BETWEEN: MS MANOTIS
Applicant
AND
MR MANOTIS
First RespondentAND
MR MATTHEWS
Second RespondentAND
MR BELLS
Third RespondentAND
X LAWYERS
Intervener
Catchwords:
SECTION 106B APPLICATION – where property orders were made in 2008 and in 2009 the wife was appointed trustee for sale – the husband and the wife entered into a deed of settlement in 2012 varying the orders – where the wife filed an application for consent orders seeking to set aside the previous orders and have the deed of settlement stand as “orders of the court” – where in 2013 a judge ordered the wife’s former solicitors be appointed trustee for sale of the property and dismissed the application for consent orders – where the husband filed an appeal against the orders made and lodged an application for a stay – where the application for a stay was dismissed and the settlement of the sale of the property took place shortly after – where the Full Court allowed the appeal and remitted the matter for rehearing – where the husband says the sale of the property defeated orders the husband, and at least at some stage the wife, anticipated the court would make and that the purchaser was not bona fide – where the court found that the sale of the property had the effect of defeating an anticipated order but that the purchaser was bona fide – application dismissed.
JURISDICTION – Accrued – where the court is satisfied that the Court’s accrued jurisdiction is invoked – where the husband alleges that the intervener, as trustee for sale, breached its duty to him as a result of the manner in which the contract for the sale of the property was entered into – discussion of the scope of a trustee for sale’s duties and fiduciary duties – where the husband says the trustee for sale failed to obtain the best price for the property – where the court is not satisfied that the trustee failed in this duty – where the husband says the trustee for sale breached their fiduciary duty to him by deducting money from the proceeds of sale to cover items that were removed from the property by way of reimbursement to the buyer – where the court found that the trustee breached their fiduciary duty and redress is appropriate by way of equitable compensation – where the husband seeks damages for the disposal of various items left on the property after settlement – where the court is not persuaded that there is any basis to order damages – where the husband seeks to recoup certain costs made by the trustee for sale in relation to the property – where the Court found that the trustee should be responsible for some of those costs – where the husband seeks punitive damages against the buyer of the property for “the return of irreplaceable family items” – claim for punitive damages dismissed.
JURISDICTION – Accrued – where the court is satisfied that the Court’s accrued jurisdiction is invoked – where the second respondent originally sought money from the husband for the termination of a lease entered into by them and for monies lent by way of personal loan by the second respondent to the husband – where the second respondent now seeks the claims be met by the interveners as a result of negligence and/or breach of fiduciary duty – where the second respondent was absent for part of the proceedings and the Court deals with what the Court could of his claim but made provision for the second respondent to agitate any further claim at a later stage when time permitted, if appropriate and if he considered it viable – where the second respondent says the intervener were negligent/breached their fiduciary duty in selling the property when the wife’s specific instructions were not to sell it but, rather, to take steps to set previous orders aside – where the Court did not accept that the intervener breached any duty owed, or were negligent – where the Court considers it appropriate, and previous orders had been made by the court, for the second respondent to receive his compensation and that it be paid by the husband from his interest in the proceeds of sale of the property - where the second respondent says that the intervener owed him a fiduciary duty to pay that amount given the husband’s earlier authority to pay and the intervener’s failure to pay – where the Court is not satisfied that this failure amounts to a breach of duty.
LEGAL PRACTITIONERS – where the Court has concerns in relation to the manner in which the wife’s former solicitors dealt with the wife and the proceedings generally – where the Court considers that the money retained in trust by the solicitors on the wife’s behalf should be preserved pending the wife having the opportunity to commence the process of having her bills assessed.
PRACTICE AND PROCEDURE – Subpoenas – where the Court is asked to determine the costs payable to two witnesses who were subject to subpoenas issued by the husband for their attendance at trial – where one witness had sworn an affidavit on behalf of the intervener and the other had provided valuations relied upon by the intervener – where the husband is to pay some contribution to the witnesses’ costs and the intervener is to meet any shortfall.
Legislation:
Family Law Act 1975 (Cth), s 31, s 34, s 79, s 80, s 106B
Family Law Rules 2004 (Cth), r 10.12, r 15.10
Trustees Act 1962 (WA), s 27, s 31
Disposal of Uncollected Goods Act 1970 (WA), s 20, s 21, s 22
Transfer of Land Act 1893 (WA)
Legal Profession Act 2008 (WA), s 295
Solicitors Cost Determination 2011 (WA)
Category: Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
First Respondent : Self Represented Litigant
Second Respondent : Self Represented Litigant
Third Respondent : Dr A Dickey QC
Intervener: Dr A Dickey QC
Solicitors:
Applicant: Self Represented Litigant
First Respondent : Self Represented Litigant
Second Respondent : Self Represented Litigant
Third Respondent : Lawley Legal (formerly represented by Vincent Partners)
Intervener: X Lawyers
Case(s) referred to in judgment(s):
ANZ Banking Group Ltd v Harper (1988) FLC 91-938
F Firm & Ruane and Ors (2014) FLC 93-611
Fencott v Muller (1983) 152 CLR 570
Ganas and Ganas (1971) 18 FLR 298
Gould and Swire Investments Ltd (1993) FLC 92-434
Halabi and Artillaga & Ors (1994) FLC 92-470
Heath and Heath; Westpac Banking Corporation (1983) FLC 91-362
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
In the marriage of Balnaves and Cummings (intervener) (1988) FLC 91-952
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Manotis & Manotis & Ors (2014) FLC 93-594
[Manotis] and [Manotis] [2008] FCWA 9
Parry and Deakin [2013] FamCAFC 12
Pelerman v Pelerman (2000) FLC 93-037
Pflugradt and Pflugradt (1981) FLC 91-052
Puddy and Grossvard and Anor (2010) FLC 93-432
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Target Holdings Ltd v Redferns (a firm) [1996] AC 421
Valceski and Valceski (2007) FLC 93-312
Warby and Warby (2002) FLC 93-091
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1Proceedings between [Ms Manotis] (“the wife”) and [Mr Manotis] (“the husband”) started in 2004. In the 12 years since then the court has been called, on a regular basis, to assist in determining how the lives of these parties should be regulated. The most contentious of issues has been the disposition of the property at [Town N] (“the property”).
2The property was originally owned by the husband’s grandfather who grew tobacco on it. The husband has done and continues to do everything in his power to retain that property, he says, for the benefit of the parties’ son who is now 16 years of age.
3The matter comes before the Court on this occasion by virtue of an order of the Full Court of the Family Court of Australia (“the Full Court”) made on 17 June 2014. This rehearing started in March 2015. After four days it was adjourned until June 2015. It then continued for five days. At the commencement of the ninth day, 3 July 2015, the second respondent, [Mr Matthews], due to start his re‑examination, was apparently hospitalised and did not attend. The matter was adjourned to 2 December 2015. The matter continued for another seven days. A further day was allocated on 12 January 2016. Closing addresses were heard on 4 and 5 February 2016. Provision was then made for the husband to file supplementary written submissions. These were received, as ordered, on 15 February 2016.
Brief relevant background
4On 23 January 2008, after a three day hearing in July 2007, Penny J made orders relevantly for present purposes:
1.On or before 60 days from today’s date the [husband], is to pay to the [wife], the sum of
$83,053$77,717.50.2.If the [husband] fails to comply with paragraph 1 hereof, the property … be sold and the proceeds of sale be disbursed as follows:
…
(d)the balance be divided in order to effect a distribution of the assets as to 30 per cent to the [wife] and 70 per cent to the [husband].
3.Pending the payment or completion of the sale of the property:
…
(c)neither party encumber the real property without the consent in writing of the other party.
5On 2 June 2009, 18 months later, and after an application was filed by the wife’s solicitors, [X Lawyers] (“[X Lawyers]”), an order was made that the wife be appointed trustee for the sale of the property. The terms of the order are of importance:
1The [wife] be appointed the trustee for the purpose of sale of the real property to effect such sale in accordance with paragraph 2 of the Orders made 23 January 2008 by the Family Court of Western Australia and by way of consequential arrangements for the purposes of effecting the sale:
(a)The solicitors for the [wife], [X Lawyers] have the conduct of the sale, whether by auction or private treaty and be authorised to instruct an auctioneer for that purpose.
(b)Within 14 days of a request from the [wife’s] solicitors the [husband] shall do all such acts and sign all such documents as may be required to procure such sale in accordance with these orders.
(c)The [husband] further do all such acts as may be required to ensure that the real property is maintained in proper condition and state of repair pending the completion of the sale and further do all such acts as may be required to ensure that the real property is properly presented upon inspection by any prospective purchasers.
6By April 2011 the property had still not sold. X Lawyers brought an application to aid the inspection of the property by a valuer. In December 2011 X Lawyers brought a further application to progress a sale of the property. It said that the husband had interfered in the conduct of the sale. The court made the orders sought, by X Lawyers, that the husband be restrained from leasing the property or any part of it.
7The husband was by then alleging a leasehold interest in the property. He said it had existed since 2003 and was between himself and Mr Matthews, a goat farmer. This had not been part of the evidence at the trial before Penny J. A handwritten lease entered into on 15 September 2003, for a period of five years with an initial five year option was produced. The husband said a further five year extension was negotiated on 15 September 2008. It was for the use of three acres of land on the four acre property. The rent was $350 per annum which included Mr Matthews’ water and electricity usage.
8Mr Matthews lodged a caveat over the property on 4 August 2011. He said this was to secure a debt of $10,000 the husband owed him for legal fees.
9On 16 January 2012 the court ordered that:
2Until further order of the Court, the [husband] be restrained by injunction from leasing the real property or any part thereof or otherwise permitting any right of occasion of the real property or part of the property or otherwise encumbering the real property pending the completion of the sale apart from the issue of the alleged current lease in favour of [Mr Matthews].
…
5Any monies owed by the [husband] to [Mr Matthews] by way of a debt be paid from the [husband’s] share of the nett proceeds of sale of the said property.
10Mr Matthews lodged another caveat on 1 February 2012. This, he said, was to secure his interest under the lease.
11On 2 May 2012 the court made the following relevant orders:
1.Pursuant to Rule 6.03(1) of the Family Law Rules 2004, [MR MATTHEWS], be added as a second respondent (“the Second Respondent”) to these proceedings.
2.Pursuant to Sections 114(1) and 90AF(2)(b) of the Family Law Act 1975, within 35 days of the date of these orders, the [husband] serve such notice as may be required upon [Mr Matthews] to terminate any leasehold interest existing or purported to exist in respect of the property .
3.In the event that [Mr Matthews] seeks any expenses, damages or other compensation arising from the termination of any leasehold interest that exists or is purported to exist over the property in accordance with these orders, that [Mr Matthews] provide [the husband] within 35 days of the date of this order, particulars of any damages, expenses or compensation incurred.
4.Unless otherwise agreed between the [husband] and [Mr Matthews] that any expenses, damages or compensation incurred by [Mr Matthews] be paid by the [husband] from the [husband’s] share of the net proceed [sic] of sale of the property.
12On 8 June 2012 the husband and wife entered into what they called a deed of settlement. The deed had been prepared by a solicitor in [Town N], [Mr E]. Mr Matthews said he acted as an intermediary in the preparation of the deed. The husband, and later the wife, explained the intent of the deed as being a “swap” of the entitlement the wife would receive pursuant to Penny J’s orders with an alternate amount of cash the husband anticipated receiving from his later mother’s estate. The husband’s mother died in September 2006, almost six years prior to the deed.
13The deed was sent to the Family Court of Western Australia by Mr Matthews. A registrar of the court communicated with the parties to the effect that if they had reached an arrangement that was different to the existing orders they should enter into an application for consent orders and file this in the court.
14The wife filed an application for consent orders on 2 August 2012. She terminated her retainer with X Lawyers on 11 August 2012. The application sought orders which would give effect to the deed of settlement. The application was signed by both the husband and the wife. The wife’s signature was witnessed by a lawyer. Both parties acknowledged they were aware of their right to have independent legal advice. The document shows the husband had such advice, but the wife did not.
15At or about this time the costs the wife had incurred with her solicitors, X Lawyers, dating back to the trial before Penny J were around $150,735. As a result of various orders for costs against the husband during those proceedings, which were either fixed or assessed, the wife stood to recoup $62,586 from him.
16X Lawyers filed an application on 5 September 2012. It sought to be added as a respondent to the proceedings and that the application for consent orders, filed by the wife, be dismissed. It sought an amendment of the orders of 2 June 2009 to provide that it be appointed the trustee (in lieu of the wife) for the purpose of the sale of the property. It also sought that the husband vacate the property within 14 days of the date of a contract of sale.
17The husband filed a response on 15 January 2013. He sought orders in terms of the application for consent orders and that X Lawyers pay any compensation sought by Mr Matthews as foreshadowed in the orders of 2 May 2012.
18The matter ultimately came before Moncrieff J on 21 January 2013. During the hearing his Honour, after an exchange with the wife through an interpreter, said that it no longer appeared that the wife wished to vary the orders and that she wanted X Lawyers to press ahead with the sale of the property.
19The following relevant orders were made by Moncrieff J on that day:
1[X LAWYERS] be granted leave to intervene in these proceedings and henceforth be known as the Interveners.
2Paragraph 1 of the orders made on 2 June 2009 be varied to provide that the Interveners be appointed trustee for the sale of the real property (“the real property”).
3Within 14 days of a Contract of Sale of the real property, the [husband] provide vacant possession of the real property.
4Within 7 days from the date hereof, [Mr Matthews]:
(a)vacate the real property; and
(b)withdraw at his expense any Caveat for the lease registered by him or on his behalf in respect of the real property.
5Within 14 days of the date of any Contract of Sale of the real property, [Mr Matthews] withdraw at his expense any remaining Caveat registered by him or on his behalf in respect of the [Town N] property.
6Otherwise and within 7 days of a request from [X Lawyers], the [wife], the [husband] and [Mr Matthews] otherwise execute all such documents as may be required to procure a sale of the real property in accordance with these or any previous orders.
…
20These orders were amended by Moncrieff J on 19 March 2013. The following order was inserted:
11The Form 11 application filed by the [wife] on 2 August 2012 be and is hereby dismissed.
21The hearing of 19 March 2013 was primarily to deal with the husband’s application for a stay of the orders of 21 January 2013, pending the hearing of his notice of appeal, which he lodged on 12 February 2013. Prior to dealing with this issue Moncrieff J signalled his intention to make a correction to the orders of 21 January 2013 in that they did not contain what his Honour referred to as the formal dismissal of the application for consent orders. His Honour amended the orders “pursuant to the slip rule”. He said it was clear that this was the intent and to that extent he made the amendment. His Honour then dismissed the husband’s application for a stay. From that time until March 2014 X Lawyers acted for the wife and in its own right, as trustee for sale of the property, participated in the proceedings. However, it did not file a notice of ceasing to act on the wife’s behalf until 19 December 2014 after being ordered to do so.
22A contract for sale of the property was signed by [Mr Bells] and X Lawyers on 1 February 2013. The sale price was $365,000. Settlement of the sale took place on 18 April 2013. After some disbursements, the proceeds of sale of $303,941 were held by X Lawyers. Further disbursements were made pursuant to court orders of 3 July 2013. The amount at 2 February 2016, including interest, was $304,113.09.
23The Full Court heard the husband’s appeal on 1 November 2013 and delivered judgment on 17 June 2014. The appeal was allowed and orders 2 to 11 inclusive of the orders made 21 January 2013 (as amended) were set aside. At the hearing of the appeal no application had been made to set aside the sale of the property.
24The orders made by the Full Court on 1 November 2013 relevant for this Court are:
…
(4)Any monies presently held by [X Lawyers] be retained in their entirety and not dispersed without an order of a judge of the Family Court of Western Australia.
25By the time the matter came before this Court there was an application by the husband to set aside the sale of the property.
26Mr Bells was made a Third Respondent to the proceedings on the first day of trial. He filed an application on 5 March 2015 seeking, amongst other things, summary dismissal of the husband’s claim.
27This was dealt with on the first day of trial. Rule 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) refers to the circumstances in which a party may apply for summary orders. The power of a court in an application for summary dismissal is discretionary.
28Relevantly here, the party seeking the dismissal must show that the application is either doomed to fail; lacks a reasonable cause of action; or is advancing a claim that is frivolous or vexatious. Despite any defect in pleadings, a party may have a reasonable cause of action, which it has failed to put in a proper form (see Pelerman v Pelerman (2000) FLC 93-037 and Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251).
29The current application for summary dismissal was unsuccessful, primarily, because despite any defect in the pleadings it appeared that the husband had a reasonable cause of action albeit poorly articulated. His claim, taken at its highest, was not doomed to fail.
The conduct of the proceedings and some observations of the parties
30The husband, the wife and Mr Matthews appeared without any legal representation. Mr Bells and X Lawyers were represented by Dr Dickey of Queens Counsel.
31The husband had previously represented himself during the three day trial in 2007 before Penny J. He advised the Court he had sought legal advice throughout and in particular during the course of these most recent proceedings. He named a number of solicitors and firms of solicitors from whom he had sought assistance. He had also obtained a written opinion from a barrister who apparently provided some advice during this trial.
32This matter involved a plethora of documents. There were numerous exhibits; affidavits; other court documents; and miscellaneous paperwork. A careful, and time consuming, winnowing of all this was necessary to try and ascertain the nature of the parties’ claims and their particular factual basis. There was document upon document of often convoluted, irrelevant, argumentative and unhelpful content. However, from time-to-time, there was a hidden gem with an arguable cause of action or claim.
33In [Manotis] and [Manotis] [2008] FCWA 9, Penny J noted at paragraph 9 “it is obvious that the husband is desperate to interpret any document he sees in a manner which he perceives is advantageous to himself”. This propensity to often misinterpret the content of documents made the identification of relevant evidence particularly difficult.
34Mr Matthews, in his affidavit material, identified himself as a goat farmer. He made it known to the Full Court he had some legal training and qualifications in the United Kingdom. He was described by the Office of the Public Advocate as a “former UK Barrister turned goat farmer”.
35Mr Matthews had also sought legal advice in relation to a number of contentious issues in the proceedings. He sought advice both before and during the proceedings. He sought payment of money he said he had expended on his legal fees. This grew into a substantial claim for damages.
36Mr Matthews tried to present himself as an unbiased “intermediary” with an unselfish concern for the welfare of others; here the husband and the wife. The wife said that Mr Matthews, like her husband and her lawyer from X Lawyers, [Mr H], was only interested in money and his own position. Counsel for the intervener and the third respondent described him as an “intermeddler”.
37Mr Matthews did not appear at the resumed hearing of 2 December 2015. The Court had received an affidavit he swore on 30 November 2015. He said he had only very recently become aware of the resumed hearing. The Court did not accept that to be the case and the matter proceeded in Mr Matthews’ absence.
38True it is that no court order issued on 3 July 2015 when the matter was adjourned and Mr Matthews was not physically present at the time the resumption date was allocated. However, I was satisfied Mr Matthews either knew or should have known of the date.
39I gave oral reasons for my decision to proceed in Mr Matthews’ absence on 2 December 2015 and I incorporate those reasons here. Importantly, a transcript of the last day of the hearing on 3 July 2015 was provided to all parties under cover of correspondence of 15 July 2015. This gave notice of the date the trial was to resume. I am satisfied that this transcript was received by Mr Matthew and consider Mr Matthews had ample opportunity to familiarise himself with what transpired in his absence on that day, including the date for resumption of the hearing. It is incumbent upon a litigant, whether represented or not, to ensure he is aware of the court process and procedures. I am satisfied that Mr Matthews knew of the date but did not attend.
40Despite his non-attendance on 2 December 2015 the Court attempted to contact Mr Matthews to arrange an appearance either by telephone or by video link from the Town N Courthouse. After considerable effort by court staff, Mr Matthews’ attendance was arranged by telephone link. A date was set in order to complete both his re-examination and allow him to cross-examine Mr H. On the arranged date Mr Matthews did not attend. The Court was advised he was in hospital due to difficulties with his diabetic condition. This was later said to be a slipped disc. Despite requests, no medical report has been provided to the Court.
41Further provision was made for Mr Matthews to complete his own case and cross-examine Mr H on 12 January 2016. However, Mr Matthews failed to appear on that day citing car problems as the reason. The husband said he had offered to transport Mr Matthews to the court but Mr Matthews had declined.
42Mr Matthews did appear on 4 and 5 February 2016, the date allocated for closing submissions. The Court proceeded to hear closing submissions from all parties including Mr Matthews.
43I formed the view it was possible to complete most of the case given that the majority of the evidence had been dealt with. The only gap related to Mr Matthews’ completion, in re-examination, of his own case and for him to cross-examine Mr H. It appeared both possible and desirable to complete the case save and except for the expanded claim identified by Mr Matthews in his minute of 30 June 2015. I explained to Mr Matthews the course I intended to follow and which would allow him, after the publication of my reasons, to seek to relist the matter for completion of the remaining part of his case only if he so wished.
44Due to language difficulties the wife was assisted throughout the proceedings by court appointed and appropriately qualified interpreters. Several interpreters were involved. [Ms J] was present throughout most of the proceedings. Ms J works as an Oncall interpreter on a contract basis. She received a diploma as an interpreter approximately 11 years ago at Central Tafe. She is an accredited interpreter with the National Accreditation Authority for Translators and Interpreters Ltd. She has extensive experience interpreting in various courts, with the education department and in hospitals. She said there were three or four Thai interpreters and their selection each day was based on individual availability. She has worked on and off in this matter since approximately 2004.
45The wife was an unwilling participant in these particular proceedings. She said that she had originally made concessions in relation to children’s issues to extricate herself from ongoing contact with the husband. She only wanted a fair outcome for both her husband and her former solicitors.
46The wife is of Thai origin. She came to Australia in 1998. She has limited English, especially in a legal setting. Not unusually, her oral and written comprehension appeared better than her ability to communicate verbally. When it was explored in evidence about how she communicated with the husband it transpired that they sometimes used gestures and sign language. The parties’ son does not speak Thai.
47The issue of the wife’s understanding of the course of events up to trial, especially those relating to legal matters, was of considerable importance. It is clear that from time-to-time the wife had little understanding of what was going on. She received conflicting information depending on whom she spoke and what their agenda was. From time-to-time she had a friend of Thai origin, who spoke some English, take her to her legal appointments.
48The Office of the Public Advocate produced a report dated 17 February 2015 in relation to an application for guardianship and administration made by the husband ostensibly on the wife’s behalf in the State Administrative Tribunal on 29 December 2014. This application was withdrawn by the husband on 19 February 2015. The report noted:
… [The wife] does not have a decision making disability or mental illness as described by the Act.
…
It does appear that there may be a need for [the wife] to have the guidance of an objective and independent authority when navigating the legal issues. [The wife] is a highly vulnerable woman due to her language limitations, cultural behaviour and lack of knowledge of Australia [sic] law.
49The wife was not able to obtain Legal Aid. She had no legal representation but was assisted, in terms of her language comprehension, by Ms J who interpreted throughout the course of most of the trial.
50At one stage early in the proceedings Ms J asked the Court to ensure the husband did not approach the wife to badger her. This request was made at the wife’s behest. Thereafter, both the husband and Mr Matthews made allegations in court; from the bar table; in an application filed by the husband on 26 August 2015 for the discharge of the interpreter; and generally in communication with the court, about the behaviour of Ms J. For example, a solicitor acting on an ad hoc basis for the husband telephoned the court Audio Visual Officer in about mid-2015 to complain about the choice of interpreter. He requested details of the interpreter. I consider this course inappropriate.
51The substance of the allegations appears to be that counsel for the intervener and the third respondent were trying to influence Ms J and thus the wife. She was in their “back pocket” and lacked impartiality.
52There was no credible attack upon Ms J’s actual ability to interpret all or any of the evidence other than in an appropriate manner until very late in the proceedings. This is what she was employed by the court to do. The husband’s broad brush criticisms lacked any specificity. I found Ms J an able interpreter although a reading of the transcript, often poorly transcribed, does not always do her justice. She was a supportive and calming presence for the wife who has considerable vulnerabilities.
53The husband and Mr Matthews were highly critical of X Lawyers for a general failure to use interpreters and to facilitate the translation of documents given the wife’s limited familiarity with the English language and with legal concepts. X Lawyers, after Mr H took over the conduct of the file very early on, used interpreters and had documents translated when it considered necessary. This included translation of the Rules, specifically in relation to disclosure. There was an allegation made by the husband that the wife had failed to comply with this obligation. Any affidavit material deposed to by the wife personally was also translated. I accept there was a balance between the cost of retaining interpreters and translators for every document and oral exchange and the wife’s need to be fully informed about her legal matters.
54The husband and Mr Matthews frequently referred to r 15.10 of the Rules which relevantly provides:
Affidavit of illiterate or blind person etc
…
(2)If a deponent does not have an adequate command of English:
(a)a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands; and
(b)the translator must certify that the affidavit has been translated.
55This rule relates to the swearing of affidavits rather than every single piece of correspondence or paperwork.
56The Court’s assessment is that any failure lay not so much in the provision of interpreters but in the ability and desire of all parties, legally trained or otherwise, to explain concepts and causes of action, in which he or they had a personal interest, to the wife in an unbiased and careful fashion. I am not satisfied that even with interpretations and translations enough time was taken to fully explain to the wife the likely impact the content of certain documents may have on her. I include the husband, Mr Matthews and Mr H of X Lawyers in this.
Issues to be determined
57In discharging all of the orders of 21 January 2013 the Full Court recognised that X Lawyers had already sold the property. It recognised that “the property having seemingly been acquired by a bona fide purchaser, the transaction could not be undone.”
58In their decision, reported as Manotis & Manotis & Ors (2014) FLC 93-594 (“the Full Court decision”), the Full Court went on to say:
104.Nevertheless, the issues raised on appeal were not entirely moot, as the solicitors continued to hold funds from the sale. There accordingly remained an issue as to whether they should continue to hold those funds as trustees or in some other capacity, and as to how those funds should be disbursed. We were in no position to determine those issues, since they were not fully argued before us, and we were also aware there has already been some disbursement of the funds pursuant to orders made after the orders the subject of the appeal.
105.There was also discussion at the hearing of the appeal of the possibility of a claim by the husband against the solicitors for their alleged breach of trust by selling the property at well under what the husband claimed was its true value. We make no comment on whether that issue could be appropriately determined pursuant to the accrued jurisdiction of the court. We also considered Mr Matthews should be afforded an opportunity to develop his argument about whether the solicitors have any legal obligation to him, notwithstanding the terms of the orders made by Magistrate Andrews.
59The parties each had the following claims or sought the following matters be determined:
The wife
60Realistically the wife played little part in these proceedings. She did give evidence and was cross-examined. As already noted she said she simply wished a fair outcome. Having heard her evidence I consider that she has adopted the path of least resistance given the manner in which her husband, the self-titled intermediary Mr Matthews and her own solicitor, Mr H, have dealt with her. She has little relationship with her son, she works two or three jobs in order to survive and despite Penny J’s orders has little chance of receiving any of her entitlement. She did not articulate any particular orders she was seeking.
The husband
61By the time the matter came before this Court for determination the husband had expanded his claims, seeking:
•that all documents prepared by [X Lawyers] for the wife that were not translated into Thai be removed from the court file;
•that [X Lawyers] be “removed as interveners”;
•that the court order the wife’s legal bill of $151,000 and the husband’s legal bill of $61,000 be taxed as a result of what the husband says is [X Lawyers] unprofessional and unethical conduct;
•that pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”) the court “overturn” the sale of the property to [Mr Bells] and return the property to the “[Manotis] family”;
•[X Lawyers] be responsible for all damages and compensation for breach of their fiduciary duty in the sale of the property;
•“the conspirators in the illegal and clandestine sale (theft) of the [Manotis] home and land” be referred to the WA Police Fraud squad for investigation of their criminal conduct. The conspirators are described by the husband as “the lawyers, the estate agents and the only allowed buyer”;
•all expended monies by [X Lawyers] from the proceeds of sale of the property be returned;
•the Court make orders in terms of the application for consent orders filed 2 August 2012;
•“punitive damages sought for the return of irreplaceable family items” totalling $144,380.00 against [Mr Bells]; and
•damages, interest and costs against [Mr Bells].
62I will return to the identification of the actual matters to be dealt with later in the judgment.
Mr Matthews
63Mr Matthews has a number of claims. These have changed over time. Initially, and until about the commencement of the trial, he was seeking $69,000 from the husband. It is common ground that the husband authorised payment of that amount from the proceeds of sale of the property. The amount included a loan of $10,000 for legal fees which was the subject of a caveat registered over the property in August 2011 and for money lost as a result of the termination of the lease.
64On 30 June 2015 Mr Matthews provided a revised minute of the orders he was seeking. In this minute his total claim was $295,300 plus his legal costs. This took into account the borrowings of the husband, various amounts of legal fees including for an appeal. It also particularised damages relating to the replacement of 86 dairy goats and subsequent loss of income.
X Lawyers
65X Lawyers is holding the balance of the net proceeds of sale of the property in a trust account. By virtue of a court order of 3 July 2013 certain payments totalling $17,908.55 were made from the funds on 17 July 2013. Interest has accrued on the remaining amount. X Lawyers seeks that certain payments be made from the balance to include a plumbing account and costs and disbursements incurred by virtue of the sale of the property. Thereafter the balance is to be divided in accordance with Penny J’s orders; 70 per cent to the husband and 30 per cent to the wife.
66X Lawyers say Mr Matthews is to be paid any money he is owed pursuant to paragraph 5 of the orders made 16 January 2012 and pursuant to paragraphs 3 and 4 of the orders made 2 May 2012. This is to come, it says, from the husband’s entitlement.
67X Lawyers then seek an amount of $62,281.41 from the husband’s entitlement. This is the assessed amount of costs allowed pursuant to orders made in the wife’s favour.
68X Lawyers outlines other payments that are to be made from the husband’s entitlement. These include an adjustment to the wife for five skip bins; replacement of two ovens and a fireplace; reimbursement of home insurance; and a valuers report.
69Otherwise it seeks the applications be dismissed.
70What in common parlance is often called the “elephant in the room” is the amount of approximately $150,000 X Lawyers say it is owed by the wife for outstanding legal fees incurred from 5 May 2005 until 28 June 2012. This included an amount of around $11,000 incurred in legal fees apparently in relation to an unsuccessful appeal by the husband against Penny J’s decision.
71During the course of the cross-examination of Mr H it was made apparent that X Lawyers intended to retain all the wife’s financial entitlement, achieved from the proceeds of sale of the property, in order to satisfy its legal costs. It would also retain the amount of $62,286.41 already referred to.
72Dr Dickey said X Lawyers would not seek to recover any short fall in its outstanding legal fees from the wife personally. He accepted, despite this concession, she would be left with nothing at all. None of her legal bills have been assessed.
Mr Bells
73Mr Bells seeks that the attempt by the husband to set aside his purchase of the property be dismissed. He seeks all claims and relief sought by the husband be dismissed. He seeks that the husband pay his costs on an indemnity basis.
74Although I have outlined the above claims in order of the appearance of each party the actual priority of payment of any money is a matter of some contention between them.
Substantive Issues
75I will firstly consider the application pursuant to s 106B of the Act as it will define the manner in which the Court can or cannot deal with the other monetary claims of each of the parties.
76If the husband is successful in his application it is necessary to consider the effect of the deed of settlement on the Family Court orders along with the effect of the application for consent orders signed by the parties.
77If the husband is unsuccessful in persuading the Court that the sale to Mr Bells should be set aside then the Court is to determine how the funds held by X Lawyers are to be disbursed.
Section 106B of the Family Law Act 1975 (Cth)
78Section 106B of the Act provides the court with a discretionary power and wide scope to set aside transactions, including those which may affect the interests of third parties (Gould and Swire Investments Ltd (1993) FLC 92-434). Relevantly, s 106B provides that:
106BTransactions to defeat claims
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
…
(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
79The legislation identifies the elements which need to be established before the exercise of this discretionary power can be considered. Despite the defects in the presentation of the husband’s case it is clear upon which facts he bases his claim pursuant to s 106B of the Act. It is the husband who bears the onus of proof of the necessary elements (see ANZ Banking Group Ltd v Harper (1988) FLC 91-938).
The husband’s position
80In brief, I summarise the husband’s position to be that the contract for sale of the property, dated 1 February 2013, and which resulted in the transfer of the property from X Lawyers as trustee for the husband to Mr Bells, defeated orders the husband and, at least at some stage, the wife had anticipated the court would make. These were the orders sought in the application for consent orders executed by both the husband and the wife and filed on 2 August 2012. The application was prepared at the court’s suggestion after the parties had earlier entered into a deed of settlement on 8 June 2012. The effect of the anticipated consent orders was to vary the original orders of Penny J such that the property would not be sold.
Mr Bells’ position
81Dr Dickey asserted that the transfer of the property to Mr Bells was not made to defeat any order but was made specifically pursuant to the orders of Penny J on 23 January 2008. He drew the Court’s attention to the fact that those orders had not been set aside and had not been subject to an application pursuant to s 79A of the Act. Dr Dickey argued that there was no anticipated order at the time of transfer of the property. He said that the transfer of the property occurred on 18 April 2013 after the application for consent orders had been dismissed by Moncrieff J on 21 January 2013 and when the application for a stay had also been dismissed on 19 March 2013.
82Dr Dickey also argued that the claim, directly and solely, against Mr Bells is fundamentally misconceived. He explained that Mr Bells is not the disponer. He asserted that s 106B of the Act is designed to set aside a transfer made by, or on behalf of, a party to a marriage to defeat a claim of the other party to a marriage. He said that the disponer in this transaction is the wife, not Mr Bells. Dr Dickey submitted that Mr Bells’ role is one of transferee of the property and a bona fide purchaser for value.
83Dr Dickey further asserted that the husband’s success in a claim pursuant to s 106B of the Act was founded on the wife having transferred the property in order to defeat an anticipated order in favour of the husband. He also said a relevant matter for the Court is that the property has been “transmogrified” into the proceeds of sale currently held by X Lawyers.
Relevant events
84To aid an understanding of the dealings between all parties around these issues a schedule of relevant events is included:
| Date | Event |
| 23 January 2008 | Justice Penny makes orders for payment by the husband to the wife of $77,717.50. A failure to comply within 60 days would result in a sale of the property. |
| 21 May 2008 | In default of payment, the property is listed for sale |
| 2 June 2009 | Justice Penny orders the wife be appointed trustee for sale of the property. |
| 20 October 2011 | [Mr Bells] offers $365,000 for the property. [Mr Bench], a valuer of LMW Hegney, opines the offer was “well within an acceptable selling range”. |
| 6 November 2011 | The husband instructs [Mr O] & Co to send a “likely proposal” of settlement to [X Lawyers]. This involved a swap of an inheritance the husband would receive from his late mother’s estate for the retention of the property. The wife is not advised by [X Lawyers] of the correspondence at this stage. |
| 1 June 2012 | The wife sends a letter to the real estate agent handling the sale of the property instructing its representative [Mrs Winter] to cease her efforts to sell. |
| 8 June 2012 | A deed of settlement between the husband and the wife is drafted by a solicitor and signed by the parties. The deed reflects the wife receiving the husband’s entitlement in his late mother’s estate in partial satisfaction of Penny J’s orders together with any cash component necessary to meet the shortfall. The wife is to cease any actions in respect to the sale of the property. |
| 11 June 2012 | A letter is sent from the wife to [X Lawyers] instructing the solicitor to cease all his efforts to sell the property as the parties had reached an “accord”. She instructs him to apply to set Penny J’s orders aside. |
| 21 June 2012 | A letter is sent from the wife to [X Lawyers] repeating her instructions contained in the letter of 11 June 2012. |
| 25 June 2012 | [Mr Matthews] writes to the court confirming the parties have reached an agreement and encloses the deed of settlement. |
| 28 June 2012 | [Mr Bench] is again consulted on [Mr Bells’] offered price and opines $365,000 is still “well within an acceptable selling range”. |
| 28 June 2012 | A letter is sent from [X Lawyers] to the wife advising she has been subject to undue influence, duress and misrepresentation. [X Lawyers] also say that the deed of settlement is not legally binding and is unreliable. |
| 4 July 2012 | A letter is sent from a registrar which says “If Mr and Mrs [Manotis] have reached agreement for any arrangements different from the existing orders I would suggest they enter into a Form 11 application for consent orders”. |
| 2 August 2012 | An application for consent orders is filed by the wife. The application refers to the deed of settlement which is attached. The parties seek orders to reflect the deed. The application is ultimately listed for 21 January 2013. |
| 11 August 2012 | The wife sends a letter which terminates the services of [X Lawyers] “immediately”. |
| 20 August 2012 | Correspondence is sent from [X Lawyers] to the court advising it no longer acts for the wife and it has forwarded to her a notice of ceasing to act. The letter seeks permission from the court to cease acting on behalf of the wife as it will be less than seven days before the matter is listed. |
| 22 August 2012 | A magistrate makes orders granting leave for [X Lawyers] to withdraw as solicitors for the wife. |
| 5 September 2012 | [X Lawyers] file an interlocutory application seeking it be added as a respondent to the proceedings and that the application for consent orders filed by the parties be dismissed. It also sought that the orders of Penny J of 2 June 2009 be amended to provide it be appointed as trustee for the sale of the property. The application is to be heard, ultimately, on 21 January 2013. |
| 15 January 2013 | The husband files a response to an application in a case seeking orders that the application for consent orders replace the orders made by Penny J in relation to property settlement. This response is listed for hearing on 21 January 2013. |
| 21 January 2013 | Hearing before Moncrieff J in Perth. [X Lawyers] was granted leave to intervene and paragraph 1 of the orders made on 2 June 2009 was varied to allow [X Lawyers] to be appointed trustee for sale of the property. Orders were made in terms of schedule attached to an affidavit of [X Lawyers] filed 23 November 2012. |
| 1 February 2013 | Concluded contract of sale entered into by [X Lawyers] as trustee for sale with [Mr Bells] for $365,000. |
| 12 February 2013 | The husband lodges a notice of appeal against all the orders of 21 January 2013. |
| 8 March 2013 | The husband files an application for a stay of the orders of 21 January 2013. |
| 19 March 2013 | Hearing before Moncrieff J in Perth. An amendment is made to the orders of 21 January 2013, on the court’s own motion, pursuant to the slip rule to include a dismissal of the parties’ application for consent orders. The wife is represented by [X Lawyers] who also appear as interveners. The application for a stay is dismissed. |
| 18 April 2013 | Settlement of the sale of the property. |
| 25 July 2013 | The husband lodges an amended notice of appeal against all the orders of 21 January 2013 (as amended). |
| 1 November 2013 | Orders are made by the Full Court of which include that the appeal be allowed and the orders of Moncrieff J be set aside. |
Elements contained in s 106B(1) of the Act
85The Court must consider whether the contract for sale of the property was made to defeat an anticipated order in these proceedings or, irrespective of intention, was likely to defeat such an order.
86Orders may be considered “anticipated in proceedings” if they are asked for in the proceedings (see Ganas and Ganas (1971) 18 FLR 298). The test to be applied is an objective one (see Pflugradt and Pflugradt (1981) FLC 91-052).
87The issue pared to its most simple form is reflected in the question of whether X Lawyers’ acceptance of the offer to buy the property on 1 February 2013 had the effect of defeating an anticipated order. The order the wife and husband had anticipated, by the filing of the application for consent orders, was that they would be able to preserve the property, ultimately for their son, and for the wife to receive her payment from an alternate source. The sale of the property had the effect of defeating what the parties had intended when they signed and subsequently filed the application for consent orders.
88In relation to counsel’s argument about the transfer of the property taking place at settlement I consider that a concluded sale of the property took place on 1 February 2013. There was an offer and acceptance on that date and it was not subject to the obtaining of finance or the sale of another property. There was no obstacle preventing the conclusion of the sale at that time, although there may well have been some opportunity for Mr Bells to apply to terminate the contract at a later stage if another less important condition was not fulfilled. I deal with this in more detail later in my judgment. I do not accept that 18 April 2013 was the date of actual sale but was the settlement of that sale.
89Ostensibly the application for consent orders was still on foot on 1 February 2013, the date of sale. The husband was actively seeking the orders in the wife’s application be made and to this end he had filed such an application which was to be dealt with on 21 January 2013. The wife’s application for consent orders filed 2 August 2012 was before Moncrieff J on 21 January 2013. It had not been withdrawn by either party.
90The orders his Honour made on that day did not include a dismissal of the application for consent orders. His Honour made orders in terms of a schedule attached to an affidavit of Mr H sworn on 23 November 2012. That schedule does not refer to the application for consent orders but simply seeks orders to progress the sale of the property.
91It is difficult for the interveners to argue that the wife’s consent to the application for consent orders had been withdrawn.
92The manner in which the court proceeded on that day was dealt with in the Full Court decision. Relevantly in relation to the wife and her consent it was said:
74.The wife was then led by his Honour into what he treated as consent to the outcome he proposed, without having the ramifications adequately explained to her or having been advised of the desirability of taking independent legal advice.
75.The extent to which his Honour acted as prosecutor of the case for the solicitors can be seen from the fact that, save for very brief submissions on the issue of costs, [Mr H] was called on only to make a very brief comment about a valuation issue his Honour wished to have clarified.
93The dismissal of the application for consent orders was actually done on his Honour’s own motion on 19 March 2013. The transcript of that day reveals that his Honour said it was an oversight that it had not been done earlier. His Honour said he would therefore make the order pursuant to the slip rule. No submissions were sought from any of the parties about such a course.
94This may have been a technicality but in the Full Court decision, the court remarked:
83.It was therefore clearly open to his Honour to dismiss the application for consent orders. However, the application was ultimately dismissed primarily on the basis that the wife had withdrawn her consent. But in seeking to persuade the wife to withdraw her consent, his Honour appears not to have taken any account of what the wife and the husband said was going to happen with the [Town N] property under their new arrangement, which involved the wife living in the property and it being ultimately inherited by their son. None of the potential advantages to the wife of this arrangement were put to the wife by his Honour when he was attempting to persuade her to resile from the application for consent orders (seemingly in breach of the Deed of Settlement).
84.In making these observations, we recognise that the Deed itself did not make provision for the wife to live in the property and for the son to inherit it. However, the wife accepted this was an arrangement she and the husband had made between themselves and the transcript suggests they were in the process of implementing at least the first part of it. At the least, the wife should have been given the opportunity to seek advice about the options available to her.
85.The transcript suggests that the wife came to court expecting to obtain orders in terms of her application for consent orders, which she anticipated (along with the understanding she had reached with the husband) would allow her to move into the [Town N] property and remain there, on the basis that the husband would ensure the property was inherited by their son. She left the court with an order which led to the almost immediate sale of the property, leaving her with no home of her own and potentially no money.
86.In our view, there is some basis for the husband’s assertion that the wife was, at worst bullied, and at best, led into giving what his Honour took as consent to the outcome his Honour had pre-determined. Furthermore, for his Honour to have found that the wife had “indicated that she consents quite clearly to [Mr H] continuing to act on her behalf and to effect the sale” was to overstate his Honour’s exchange with the wife.
87.In any event, anything the wife had to say to his Honour had to be considered in light of what she had observed in the courtroom prior to being called upon to state her position. The husband, by reference to the transcript, attempted to describe this in his oral submissions:
… But what I tried to point out in my … amended summary of argument, Moncrieff J effectively – to use the word “barked” at myself and [Mr Matthews], and “Do this. Do that.” And he threw out, literally, the form 2A. And it’s on page 419 of the appeal book is where he effectively returns my form 2A. Now, you need to understand [Mrs Manotis] comes from a different culture. But she looked at what was going on. She was scared. On page 424 and 425 of the appeal book, Moncrieff J has finished berating me, threatening me with contempt. Now, I can handle that, I’m – and next he says, “[Mrs Manotis], stand up.” You weren’t even there. No one was here, [except] [Mr Matthews], to see what happened …
(Appeal Transcript, 11 November 2013, p 22)
…
90.In any event, we consider there must be real doubt that the wife understood the ramifications when she gave her affirmative response to his Honour’s suggestion that she wanted “[X Lawyers] to sell [the Town N property] so you get your money”. As best we can understand the position, the wife did not stand to obtain any money from the sale of the property. (original emphasis)
95Having heard all the evidence in the rehearing of the trial this Court’s view accords with that of the Full Court to the extent that the wife’s supposed consent to the reappointment of X Lawyers as her lawyers was hardly fully informed or made with the benefit of independent or any legal advice. The issue of the wife’s consent and understanding of the implications of the deed of settlement and application for consent orders is another issue to be dealt with later.
96Prior to the order being made on 19 March 2013 dismissing the application for consent orders a contract of sale was entered into between X Lawyers and Mr Bells.
97The husband lodged a notice of appeal on 12 February 2013. He sought to appeal all the orders made on 21 January 2013. This notice of appeal was lodged after the concluded sale of the property but prior to its settlement. It was lodged before the amendment of Moncrieff J on 19 March 2013.
98An amended notice of appeal was filed on 25 July 2013. This amended notice sought to appeal all the orders of 21 January 2013 (which by then had been amended). Again this was prior to the settlement of the sale of the property.
99In all the circumstances here, I am satisfied the sale of the property had the effect of defeating an anticipated order. The reason the sale of the property was not concluded earlier was because the wife had not wanted it sold and had specifically instructed the real estate agent, Mrs Winter, and X Lawyers to withdraw it from the market for sale. It was only sold after X Lawyers’ appointment as trustee for sale.
100Given the order of 21 January 2013 X Lawyers became a party to the proceedings and it was also appointed trustee for sale of the property. Despite apparently acting for the wife X Lawyers also acted in its own capacity as trustee for sale. On 1 February 2013 the disposition of the property was effected by a party or at the very least, on behalf of, the husband and the wife. The result was to circumvent the likely effect of the application for consent orders.
•a failure to take the time to properly explain intended legal actions and their consequences to the wife knowing she was vulnerable and had a difficulty understanding the process;
•whilst acting as trustee for the sale of the property, X Lawyers failed to advise the owner of the actual sale of the property until two weeks after the event. This was again explained as an oversight given the solicitor in charge, Mr H, was on holidays. It had implications in that it reduced the time the husband had to leave the property and comply with certain legal requirements; and
•that as an officer of the court, Mr H:
•failed to draw the court’s attention to previous orders by a different judicial officer and which were in direct conflict with those about to be made. This relates specifically to an order in 2009 that the husband have sole occupation of the property until settlement as opposed to an order made 21 January 2013 that he vacate the property within 14 days;
•pursued its application to become trustee for the sale of the property when it had agreed to continue to act for the wife who was herself trustee for sale of the property. There was no need for X Lawyers to seek such appointment in its own right upon being reinstructed. I consider the action of pursuing its application once reinstructed created a tension between its interest in collecting outstanding legal fees and the wife’s interest in considering proposals for alternate outcomes and the sale generally;
•failed to moderate the tone of written communication, such as a letter dated 28 June 2012, to the wife knowing her inability to fully understand the content of the correspondence; and
•suggested the wife was not “competent” to give instructions when she terminated X Lawyers’ services yet failed to take steps to ascertain this. When Moncrieff J arranged for the wife to reinstruct X Lawyers on 23 January 2013, X Lawyers then raised no concerns about the wife’s competence or indeed her ability to consent to have it reappointed as her solicitor.
407It is trite that a lawyer must not during the course of a retainer engage in any conduct that places his own interests or those of a third party in conflict with the duty to the client. The lawyer/client fiduciary relationship is well known. If the wife wishes to take this matter further I intend to allow her the opportunity to refer to the content of my judgment in so doing.
408The wife stands to receive nothing from the proceeds of sale of the property. Her legal costs are substantial. During the course of the proceedings orders have been made, from time-to-time, that the husband pay some of the wife’s costs. On those occasions the husband has taken steps to have the solicitor’s accounts either taxed or assessed. I accept that the accounts were reduced through that process, on occasion substantially.
409I am concerned for the wife to have the same opportunity on the basis that after all these years she may retain little or nothing from her financial settlement due mostly to the actions of others. One opportunity is, at least, to have her accounts for legal fees properly considered.
410Part 10 Div 8 of the Legal Profession Act 2008 (WA) relates to costs assessments. Section 295 states:
…
(6)An application by a client or third party payer under this section must be made within 12 months after –
(a)the bill was given in accordance with Division 7 or the request for payment was made to the client or third party payer; or
…
(7)However, an application that is made out of time, …
…
may be dealt with by the taxing officer if the Supreme Court, on application by the taxing officer or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12 month period.
…
411I pause here to note that for reasons set out in my judgment I find the wife would likely fall within this exception.
412I consider that the trust money retained by X Lawyers on the wife’s behalf should be preserved pending the wife having the opportunity to commence the process of having her bills assessed.
Subpoenas
413I am also asked to determine the costs payable to a certified practicing valuer, Mr B and a real estate agent, Mrs Winter, who were the subjects of subpoenas issued by the husband for their attendance to give evidence at Court. Each had travelled from Town N pursuant to the subpoena.
414The issue of conduct money and witness fees is addressed by r 15.23 of the Rules which provides:
(1)A named person is entitled to be paid conduct money by the issuing party at the time of service of the subpoena, of an amount that is:
(a)sufficient to meet the reasonable expenses of complying with the subpoena; and
(b)at least equal to the minimum amount mentioned in Part 1 of Schedule 4.
(2)A named person served with a subpoena to give evidence and a subpoena to give evidence and produce documents is entitled to be paid a witness fee by the issuing party in accordance with Part 2 of Schedule 4, immediately after attending court in compliance with the subpoena.
(3)A named person may apply to be reimbursed if the named person incurs a substantial loss or expense that is greater than the amount of the conduct money or witness fee payable under this rule.
415Part 2 of Sch 4, item 201 “all witnesses”, provides for an amount of $75 per day, or part of a day, for necessary absence from the witness’s place of employment or residence. Item 202 of the same schedule provides that for expert witnesses, such further amount as the court allows for the preparation of a report and absence from the expert witness’s place of employment.
416Mrs Winter had sworn affidavits on behalf of the intervener in these proceedings. Mr B’s valuations were relied upon by the intervener. They were persons the husband wanted to question. He sought to issue subpoenas to ensure their attendance despite the fact they would have been required to attend in any event for cross-examination. Given the husband’s firm view that they were involved in collusion and were part of a fraudulent set of behaviours he wished to ensure that they were present.
417Mrs Winter sought payment for her costs relating to the initial listing of the trial on 9 December 2014 which did not proceed through no fault of hers. She sought an amount of $576.92 which she says equates to income that would have been earnt over a period of three days. She says that as she had a newborn child she had to travel up to Perth for one day, had intended on attending court the following day and due to late notice of the cancellation of the listing travelled back the following day. She says she was unable to utilise public transport to travel to and from Perth and sought compensation for petrol money in the amount of $96 and a further $200 for the costs of accommodation for two nights. Mrs Winter sought compensation in identical terms for the giving of her evidence on 11 March 2015. In addition to this she sought $74.40 for the preparation of documents produced under subpoena based on an hourly staff wage. In total she sought $1,820.24.
418The Rules allocate an amount of $75 per day for a witness’s necessary absence from a place of employment or residence. I am satisfied that an amount of $450 should be paid to Mrs Winter for the six days in total she was absent from her employment. I am satisfied that the amount of $192 for petrol and $400 for accommodation, as sought by Mrs Winter, is appropriate to be paid. I am not satisfied the amount of $74.40 for the preparation of documents should be paid in circumstances where the husband as already paid conduct money in the amount of $96 to Mrs Winter.
419I intend to allocate an amount of $1,000 to Mrs Winter from the husband. Any amount outstanding is something Mrs Winter will have to negotiate with the interveners who sought to rely upon her evidence and ensure she was available for cross-examination.
420Mr B claims a total amount of $1,715 for his compliance with the subpoena issued by the husband. He says this is based on the Land Valuer’s Licensing (Remuneration) Notice October 2013 (“the Notice”) which outlines an hourly rate for payable for standby time, kilometre of travel and services provided away from headquarters. Mr B did not however provide the Court with an itemisation of the amount he was seeking. In any event the amounts provided for by the Rules are not the same as those contained in the Notice.
421Mr B gave his business address as Town N, this is a 292 km trip one way. In accordance with the Rules I am satisfied Mr B is entitled to $467.20 as conduct money. By way of payment for witness fees I am satisfied Mr B is entitled by way of witness fees an amount of $75.
422Again, I will make an order that the husband pay an amount of $1,000 to Mr B. Any shortfall can be met by the interveners based on the reasoning previously stated for Mrs Winter.
Orders
UPON THE COURT NOTING THAT:-
AThe National Australia Bank Ltd Account in the name of [X Lawyers] be referred to in these orders as “the Trust Fund”.
BThe amount of $92,717.70 be allocated from the Trust Fund to the Applicant, [MS MANOTIS], as contained in the schedule in paragraph 401 of the judgment.
IT IS ORDERED THAT:-
1Within a three month period from the date hereof, the Applicant be at liberty to take steps to file an application to have all and any accounts for the payment of legal fees sent to her by the Intervener, assessed in accordance with the provisions of the Legal Profession Act 2008 (WA) and during that three month period the Intervener be restrained and an injunction is hereby granted restraining it from transferring any money allocated to the Applicant’s account and held in the Trust Fund.
2The Applicant be at liberty to distribute this judgment to any professional body she sees fit in relation to the matters of professional conduct.
3The Intervener [X LAWYERS] forthwith pay, by way of equitable compensation, the amount of $7,284.85, with such amount to be paid into the Trust Fund.
4Save and except as it relates to paragraph 3 hereof, the claims of the First Respondent, [MR MANOTIS], against the Intervener be and are hereby dismissed.
5The Intervener forthwith pay the sum of $69,000 to the Second Respondent, [MR MATTHEWS], from the Trust Fund.
6In the event a written request to relist the proceedings is not received from the Second Respondent in relation to his outstanding claim against the Intervener, by close of Registry on 27 May 2016, then such claim be dismissed.
7The Intervener forthwith pay the sum of $84,513.80 to the First Respondent from the Trust Fund.
8The Intervener be at liberty to disburse the sum of $64,289 to itself from the Trust Fund.
9The Intervener forthwith pay from the Trust Fund:
(a)The sum of $330 to LMW Hegney;
(b)The sum of $275 to Plumbing; and
(c)The sum of $272.16 to McNaughton Gardiner.
10The First Respondent contribute to the costs of witnesses appearing under subpoena, as follows:
(a)[MR B], in the sum of $1,000; and
(b)[MRS WINTER], in the sum of $1,000.
11The First Respondent’s claims insofar as they relate to the Third Respondent, [MR BELLS], be and are hereby dismissed.
12The application of the First Respondent insofar as it relates to s 106B of the Family Law Act 1975 (Cth) be and is hereby dismissed.
13All outstanding applications and responses otherwise be and are hereby dismissed.
I certify that the preceding [422] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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