Marsh and Marsh (No 3)

[2014] FamCA 1224

FAMILY COURT OF AUSTRALIA

MARSH & MARSH (NO 3) [2014] FamCA 1224

FAMILY LAW – COSTS – Where the husband seeks orders that the wife pay his costs on an indemnity basis – Where the wife had failed to comply with property orders requiring her to do certain things to enable the sale of the former matrimonial home – Where the wife has not been cooperative in enabling the sale of the property – Where the husband requires funds to repay a debt owed to the Australian Taxation Office – Where it was found that the wife should pay the husband’s costs on an indemnity basis.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Marsh

RESPONDENT: Ms Marsh

FILE NUMBER: SYC 3464 of 2009

DATE DELIVERED: 26 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 26 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Champion Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT: In person by telephone

Orders

1. That I make orders in accordance with paragraphs 11 and 12 of the document headed “Minute of Order” marked “A”, initialled by me and dated today, set out herein:

11.That pursuant to Rule 19.37 the costs payable by the Wife to the Husband pursuant to Order 10 made 13 June 2014, be assessed in the sum of $127,040.38.

12.That the payment of the costs assessed pursuant to Order 11 hereof be secured by way of charge on the wife’s share of the proceeds of sale of the property at [Z Street, Suburb C], such that the assessed costs be paid to the Husband prior to the distribution to the Wife of her share of those sale proceeds pursuant to Order 10 made 20 May 2014.

1. That I make orders contained in the document headed ‘Minute of Order’ Marked “B”, initialled by me and dated today, set out herein:

1.That the Wife pay the Husband’s costs of an incidental to the Application in a Case filed 2 September 2014:

a.       Assessed in the sum of $36,649.25.

b.       Or alternatively as agreed or as assessed.

2.That the costs either ordered or assessed be secured by way of charge on the Wife’s share of the proceeds of sale of the property at [Z Street, Suburb C], such that the assessed costs be paid to the Husband prior to the distribution to the Wife of her share of those sale proceeds pursuant to Order 10 made 20 May 2014.

1. That liberty to apply to relist the matter is granted to the parties upon giving seventy-two (72) hours’ notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsh & Marsh (No 3) 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 SYDNEY

FILE NUMBER: SYC 3464 of 2009

Mr Marsh

Applicant

And

Ms Marsh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings were stood over from Wednesday 24 September 2014 when I gave a judgment and made a number of orders in relation to this matter.  In that judgment I gave reasons for making an order that the costs payable by Ms Marsh (“the wife”) to Mr Marsh (“the husband”) pursuant to an order made by Loughnan J on 13 June 2014 be assessed in the sum of $127 040.38.  I neglected then to make the orders and will do so today.

2. The matter was also stood over today in respect to orders for exclusive occupation of the property at C Street, Town 1 (“Town 1 property”).  Although the wife indicated that she would provide copies of the fire safety statement the subject of those orders, it appears that the statement has in fact been delivered directly to Town 1, and those orders are no longer required.  That deals then with the orders sought in the application in the case.

3. The husband seeks an order for costs in the sum of $36 649.25. In effect the husband is seeking an order for indemnity costs and that I fix the amount of those costs. In dealing with an application for costs, one must have regard to s 117 of the Family Law Act1975 (Cth) (“the Act”) and to other relevant matters to determine whether it is just in all of the circumstances to make a costs order as opposed to each party paying their own costs. I also take into account that indemnity costs orders are exceptional costs orders that ought not be made in the ordinary course.

4. In the present case this application is an attempt to require the wife to comply with orders for the implementation of property orders that were made by me in May of this year.  The registrar has already been required to sign a number of documents because of the default of the wife.  The evidence establishes that not only is the wife not cooperating with the sale of the property located at MM Street (“C Town property”) but is actively taking steps to undermine its sale by not permitting the agent to bring prospective purchasers through the property and insisting on providing to prospective purchasers a list of defects. 

5. This delay and default in the sale is in the face of a debt owed by the husband to the Australian Taxation Office (“ATO”) in respect of which interest is running at over $580 per day.  That debt is to be paid out of the sale of the C Town property.  It is thus in everyone’s interest, the wife’s, the husband’s and the ATO, that the sale take place expeditiously.  In those circumstances the wife’s actions are even more serious.  In the circumstances of this case, this is an overwhelming consideration.

6. The wife has the benefit of orders that will see her receive a substantial sum of money, subject to it being eroded by the costs orders to which she continually seems to subject herself.  She does have some capacity to pay these costs.  She was unsuccessful in these proceedings insofar as the C Town property was concerned and only informed the court during the hearing of the proceedings that the annual fire safety statement had been obtained in relation to the Town 1 property.

7. The wife was advised by email of the intention of the husband to seek these orders.  In the course of the hearing today she terminated the telephone connection before submissions could be sought from her on the issue of costs. 

8. I am satisfied that costs should be paid by the wife and that they should be paid on an indemnity basis, having regard to the costs that have already been incurred in this matter and the need for the sale to be completed as expeditiously as possible. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 26 September 2014.

Associate:

Date:  13 April 2015