Meeks & Moretti

[2011] FamCA 1034

FAMILY COURT OF AUSTRALIA

MEEKS & MORETTI [2011] FamCA 1034

FAMILY LAW – PROPERTY – Wife’s application to implement property orders made previously – Husband’s response summarily dismissed

FAMILY LAW – COSTS – Between parties – s 117(2A) factors considered – where respondent Husband was wholly unsuccessful in substantive proceedings – applicant Wife’s offer to resolve the matter was in similar terms to final orders made – costs order made

Family Law Act 1975 (Cth), ss 79A, 117(1), 117(2), 117(2A)

APPLICANT: Ms Meeks (formerly Moretti)

RESPONDENT: Mr Moretti

FILE NUMBER: CAC 2039 of 2007

DATE DELIVERED: 13 October 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13 October 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farrar, Gesini & Dunn

SOLICITOR FOR THE RESPONDENT: George Pikoulas & Associates

Orders

IT IS ORDERED THAT:

1. a.    Within 28 days the applicant wife, Ms Meeks (formerly Moretti), pay to the respondent husband, Mr Moretti, the sum of $247,725 (the payment).

   b.    The respondent husband sign, execute and deliver up to the wife a Memorandum of Transfer transferring to her the whole of his interest in the property known as B Street, Suburb C in the Australian Capital Territory being the residue unexpired of a crown lease for 99 years in respect of Block …, Section …, Division of Suburb C in the Australian Capital Territory being Crown Lease Volume … Folio … and the improvements erected thereupon. 

   c.    At the time of the payment the applicant wife will cause to be discharged all mortgages on the title of the Suburb C property and thereafter indemnify the husband in relation to all and any liability howsoever existing or arising with respect to the Suburb C property.

2. In the event that the respondent husband fails to sign and deliver up to the wife the Memorandum of Transfer referred to in the previous order then the Registrar of the Family Court of Australia, Canberra registry, is appointed, pursuant to s 106A, to sign that document in the name of the respondent husband. 

IT IS NOTED THAT:

1. The Registrar will be entitled to accept, as evidence of the respondent husband’s failure to sign the Transfer, a sworn affidavit by the wife or a solicitor to that effect. 

IT IS FURTHER NOTED THAT:

1. In the event that the respondent husband fails to sign the Transfer the time for the payment by the wife to the husband of the money referred to in order 1(a) is extended so that that payment is due and payable at the same time as the Transfer, duly signed by the Registrar as ordered herein, is lodged for registration. 

IT IS FURTHER ORDERED THAT:

1. The orders sought by the response of the respondent in these proceedings is summarily dismissed.

2. The respondent will pay the applicant’s costs of and incidental to these proceedings as agreed or taxed between the parties.

3. Otherwise the matter is removed from the pending cases list.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 2039 of 2007

Ms Meeks (Formerly Moretti)

Applicant

And

Mr Moretti

Respondent

REASONS FOR JUDGMENT

1. I believe that in the circumstances, there is no basis other than for summary dismissal of the response.  In relation to the application itself, as there is no declared opposition to the proposition that the amount that was offered should be paid, then the order that was sought in the application in a case should be made.

2. The primary basis of orders for costs in this Court, as you know, is under s 117, which, as you have submitted to me, provides as a primary reference that each party to proceedings should bear his or her own costs. 

3. However, s 117(2) provides that if in proceedings under this Act the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as it considers just. 

4. The matters I am obliged (and the Full Court has made it clear I am obliged to take account of the matters that are set out there) if I am going to make an order for costs – are set out in s 117(2A). 

5. I have no particular evidence about the financial circumstances of each of the parties, and counsel for the applicant would say that in relation thereto in applying to set aside the orders under s 79A, the respondent should have filed a statement of financial circumstances, which would have provided some evidence.  But that is not a matter upon which the respondent or for that matter the applicant could rely. 

6. I have not been told either of the parties is in receipt of legal aid, so I presume that neither is. 

7. The conduct of the parties to the proceedings does not really bear upon the issue particularly.  Each of the parties appears to have proceeded promptly, with the exception of the respondent’s failing to file a financial statement. 

8. The proceedings were not necessitated by the failure on the part of the respondent to comply with the previous orders except to the extent he refused to accept payment, which would appear to have been to his own detriment, not anyone else’s. 

9. The respondent has been wholly unsuccessful in the proceedings, and counsel for the applicant, I suspect, would argue that the letters that he has tendered (which have become exhibit ‘W1’) constitute an offer to resolve the matter, virtually in the terms that the final decision was given, at a much earlier point.  So it is s 117(2A)(e) and (f) that he relies upon as justifying an order for costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 13 October 2011.

Associate: 

Date: