Marlow and Benkie

[2009] FamCA 470

FAMILY COURT OF AUSTRALIA

MARLOW & BENKIE [2009] FamCA 470

FAMILY LAW – COSTS – Interim

APPLICANT:  Mr Marlow

RESPONDENT:  Ms Benkie

FILE NUMBER: SYC 5637 of 2007

DATE DELIVERED: 19 February 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Marlow

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Ms Benkie

Orders

1. That the husband’s application for costs is adjourned for determination by the Trial Judge at the final hearing.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC  5637  of 2007

MR MARLOW

Applicant

And

MS BENKIE

Respondent

REASONS FOR JUDGMENT

1. On 1 May 2008 I delivered a judgment in which I dismissed the wife’s application for review of the decision of a Judicial Registrar.  That decision dismissed her application to restrain the husband from dealing with a property at S, other than on certain conditions.  At the commencement of the hearing before me, counsel for the wife handed up an Amended Minute of Orders sought.  I also dismissed the application contained in this document.

2. The husband now seeks an order that the wife pay his costs of the proceedings before me.  The wife seeks that the husband’s application be dismissed or, alternatively, that it be adjourned for determination by the Trial Judge at the final hearing.  I had the benefit of written submissions from each of the parties.

3. I will not set out the provisions of section 117 of the Family Law Act, which governs applications for costs.  I will not cite passages from very well known Full Court authorities which deal with applications for costs in family law proceedings. 

4. The gravamen of the husband’s application is that the wife was wholly unsuccessful in the proceedings before me.  It is true that I dismissed both the applications for Review and for the orders set out in the Amended Minute.

5. The proceedings are yet to be finalised by way of orders for distribution of the net property of the parties.  It seems to me that the salient question is whether I now determine the husband’s application for costs of the proceedings before me or whether I leave that issue to be dealt with by the Trial Judge at the final hearing.

6. Prima facie, the husband’s application for costs appears to have merit on the basis that the wife was wholly unsuccessful.  On the other hand the proceedings before me were but one step in a lengthy process of litigation between the parties. 

7. It is quite common in this jurisdiction for the costs of interlocutory proceedings to be reserved to the final hearing.  It seems to me that the proper course is to preserve the husband’s right to pursue his application for costs.  I am uncomfortable in dealing with this application as a discreet issue.  I do not know, for example, whether the husband proceeded with the course of dealing with the S property in the manner upon his case before me was based.  I thus adjourn the husband’s application for costs, filed on 27 May 2008, for determination by the Trial Judge at the final hearing.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:                 

Date:    19 February 2009