Martin and Martin

[2012] FamCA 651

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN [2012] FamCA 651

FAMILY LAW – PROPERTY – Enforcement of final property orders - Correction of corporate entity identified in those orders - Interest outstanding - Agreement to pay - costs - Discussions out of Court between parties - Agreement to fix costs in the sum of $3,000

Family Law Act 1975 (Cth)

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

FILE NUMBER: MLC 9060 of 2009

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 31 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Collins

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. THAT within twenty-one (21) days the husband pay or cause to be paid to the wife’s solicitors a sum of $1,305 as outstanding interest payable pursuant to the consent orders dated 6 October 2011.

2. THAT the further hearing of the wife’s Initiating Application be adjourned for hearing before Young J on 21 August 2012 at 10.00 a.m.

3. THAT if the husband has made the payments to the wife’s solicitors prior to the adjourned hearing date of the sum identified in paragraph 1 hereof and the further costs sum identified in paragraph 6 hereof then the wife’s solicitors are to advise the Associate to Justice Young by email transmission of that payment and to request that the matter not to be listed on the adjourned hearing date and the husband be accordingly notified by the wife’s solicitors of that outcome.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to both parties.

IT IS FURTHER ORDERED BY CONSENT

1. THAT paragraph 6 of the orders pronounced 6 October 2011 be varied pursuant to the provisions of section 79A of the Family Law Act1975 (Cth) by amending the name of the company from “ [N] Pty Ltd” to “[N D] Pty Ltd”.

2. THAT the husband pay the wife’s costs of and incidental to the hearing this day, such costs fixed in the sum of $3,000 and to be paid within twenty-one (21) days and in default thereof interest be paid at the rate prescribed from time to time pursuant to the Family Law Rules.

IT IS NOTED

A.THAT the issues raised by the husband in the orders sought in paragraphs 1 and 2 of his Response are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin 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 9060 of 2009

Ms Martin

Applicant

And

Mr Martin

Respondent

REASONS FOR JUDGMENT

1. The matter of Martin has been listed before me on an enforcement application.  Mr Collins, solicitor, appears for the wife and the husband appears in person.  The initiating application was filed 1 June 2012 and ultimately, was made returnable before me this day  The application seeks enforcement of final property orders that were negotiated by the parties and their then counsel and which orders were presented to the Court on 6 October 2011.  Those orders were then made on a consent basis.  The orders provided for a division of the property of the parties.

2. In particular, my attention in these proceedings has been drawn to order 4 and order 6(c) thereof.  The wife’s application seeks payment of outstanding interest, calculated in the sum of $1,035 and also, costs on an indemnity basis.  As a further order the wife seeks to correct the name of the company, in the control of the husband, that is the registered owner of the property at Property R.  It is a matter of agreement that the company was wrongly named in paragraph 6 of the order and that it’s correct name is, in fact, N D Pty Ltd.  I intend to correct that error on the record this day.

3. In support of the wife’s application she has filed a detailed affidavit and various annexures thereto.  I have read that affidavit, which gives an insight into the involvement of her solicitor in negotiating or requesting payments from the husband’s then solicitor in accordance with a binding financial agreement, which provided for maintenance and other payments and also in respect of enforcing paragraph 4 of the orders.  Specifically, I record that the provision for interest is provided for in 6(c) of the orders and the interest to be applied was to be calculated pursuant to the Family Law Rules from time to time.

4. The husband now represents himself and has filed a response and an affidavit, both of which are well prepared.  The essence of the husband’s claim is that the wife should provide a financial discount for the payments which he made to her for rental and dental expenses, all of which were prior to the date of the consent orders.  I have explained to the husband that jurisdictionally, there is an issue for the Court in dealing with property, albeit liabilities which existed prior to the consent orders and which should have been incorporated within the property division.

5. There is a section 81 notation accompanying those final property orders, recording that the parties accepted those orders as final and binding.  Otherwise, all applications were dismissed and thus there is not an ongoing jurisdiction available to the Court to hear fresh claims to further divide property or record and accept liabilities that were in existence prior to the date of the consent orders.  Thus I do not make any orders pursuant to paragraphs 1 or 2 of the husband’s response.

6. Otherwise, the husband’s affidavit details, in paragraphs 7, 8 and 9 thereof, the alleged circumstances of the wife failing to comply with Court orders and in particular, delivering up documents and all of the documents to his accountant.  I have read and assessed what is said by the husband in that regard.  They are matters which do not impinge upon the issue of outstanding interest, more particularly they go to a general discretion as to the subsequent costs considerations.

7. I will order that the husband pay $1,305 as outstanding interest.  I will defer the payment of that for 21 days, as a period of grace to the husband.  I emphasise, in the clearest of terms to the husband, that if payment is not made within the timetable provided, then the wife’s application is otherwise in play as to paragraphs 1, 2 or 3 thereof.  I will adjourn the wife’s application to 21 August, which is 21 clear days from today and list the matter at 10.00 am.  The husband must understand if the interest payment is not made in full by that day, I may likely, without absolutely confirming the approach, move to sell Property R by the appointment of an agent.

8. That would cause considerable issues of costs and/or further hearings and common sense and financial propriety would, obviously highlight that those matters should be avoided.  What this family needs is finality in its matrimonial proceedings and no more Court hearings. 

9. I turn now to costs and I am asked to stand the matter down while Mr Collins and the husband have a discussion out of Court.  Mr Collins has indicated that his costs bill is likely to be in excess of $5,000.  Costs are sought on an indemnity basis, costs orders are opposed by the husband.

10. I, of course, have a discretion under section 117 of the Family Law Act 1975 (Cth) to make only costs orders that are just. I will more particularly consider the provisions of section 117 when it is appropriate so to do but I will afford the parties the common sense opportunity to agree on a rounded figure for costs, so that the matter is otherwise not directed to a Registrar to assess a bill of costs and thereafter to enforce payment, if that is required. The wife’s solicitors are yet to prepare a bill of costs in the appropriate form; that will take some time and further costs.

11. The husband, of course, has a right to challenge each and every cost item in a hearing before a Registrar, however a more practical and efficient process will be for there to be some common sense agreement out of Court this day.  I would indicate that I am unlikely to award costs on an indemnity basis, given the discretion of the Court and given the cases which underline the extraordinary circumstances in which indemnity costs would be awarded.  Otherwise, however, I am mindful that some of the costs are in enforcement issues and it may be that they were properly incurred in dealing with the litigation funder who was no doubt very anxious for its money.  There need be an appropriate, balanced compromise if that is possible.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Young delivered on 31 July 2012.

Associate: 

Date: