On and On (No 2)

[2007] FamCA 953

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 2) [2007] FamCA 953

FAMILY LAW - PROPERTY – Application by husband one week prior to hearing a property application in the Long Defended List for funding of $400,000 to meet past and anticipated professional fees secured against the former matrimonial home.  Application dismissed.  Husband ordered to pay wife’s costs.

Family Law Act (1975) (as amended)

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 148 at 170

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 16 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 16 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the Form 2 Application of the husband filed on 13 February 2007 and the Form 2 A Response of the wife filed also filed on 13 February 2007 be dismissed.

2. That the husband do pay the wife’s costs of the said application fixed in the sum of $4,200.

(3) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

1. That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and made available to the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. I have before me a Form 2 Application filed by the husband on 13 February 2007 and an affidavit sworn by him in support.  I also have a Form 2A Response filed by the wife, together with a detailed affidavit. 

2. The final trial of these proceedings was listed for hearing as far back, as I recall it, in June 2006.  For reasons set out in earlier judgments it was adjourned and then further adjourned in September 2006.  It is my very clear recollection that all parties thereafter have otherwise seriously urged me to have the contest fixed for trial as a matter of priority.

3. Accordingly, it was listed for hearing in the sittings of the Long Defended List, in February 2007.  Pre-trial orders were made by me late in 2006 in order to achieve that goal.  Those orders were made by consent.  In the result and with the agreement of the practitioners, it was listed specifically for hearing not before 19 February 2007.  It was in those circumstances that the trial, with ample time for preparation should be ready for hearing.

4. The Form 2 Application of the husband filed on 13 February 2007 seeks funding in the sum of $400,000 which in my view, given the whole of the circumstances has little merit.  This rather princely sum, it is said, is required to meet the husband’s legal fees, including counsel's and valuation fees incurred to date and to be incurred for the trial of what I may fairly describe as bitterly contested applications for my determination.

5. In essence, the husband claims that he has been requested to pay "or secure", as I recall the terms of his affidavit, outstanding fees and make provision for anticipated fees and expenses for the trial which is scheduled to commence not before 19 February 2007.  When I say not before 19 February 2007, it was listed as one of six cases in the Long Defended List.  All of the six cases had priority and were fixed for determination in contest competing with other cases in the list.  As matters presently stand, four have already been heard and disposed of.

6. The husband deposed that he is unable to raise or secure the required moneys and has current outstanding fees of $219,500.  He has been advised by his practitioners that the estimated cost at trial would be in the vicinity of $175,000.  Accordingly he sought, in round figures, $400,000.

7. In his affidavit, the husband deposed that he had been informed by both his solicitor and counsel that in the absence of what he described as "satisfactory funding arrangements", they would be unable to continue to represent him and would withdraw.  I was surprised at that.  This, he asserts, will leave him without legal representation for the hearing.  To enable funding, the husband has requested that the wife do all things necessary to provide security to his solicitors by way of a charge over the former matrimonial home at T, in the sum of $400,000. 

8. By the wife's Form 2A Response, she sought an order dismissing the husband's Form 2 Application and caused to be filed a rather detailed affidavit sworn by her on 13 February 2007.  In the circumstances in which that affidavit was drawn, it appears to me that her solicitors acted both rapidly and efficiently indeed, and have gone to considerable effort in order to place responding material before the court in such a short time frame.

9. I do not propose to detail in this short judgment the contents of her affidavit which largely recites financial details comprehensively examined in various affidavits already before the court.  I need only say that, for the fundamental reasons contained in her affidavit, I regard the husband's application as risible in the circumstances, particularly given his overall financial situation upon which he could have drawn for security in favour of his professional advisors.

10. Both the husband and the wife have had more than ample time to prepare this case for trial.  It surprises me and leaves me with a sense of concern that the husband appears to be complaining that, as at 13 February 2007, he was not ready or at least well advanced in preparation to proceed on the due date.  In any event, there are a number of days still available between now and the date fixed for hearing next week in order to engage alternative counsel. 

11. There are obligations on legal practitioners in respect of their clients in particular those for whom they have acted over a considerable period of time and I need not lecture them as to what those obligations are.  There has been a long history in this matter where many hundreds of thousands of dollars has been spent on legal fees and the completion of these proceedings to its final conclusion is a responsibility of a professional nature upon those concerned and engaged to act for the husband.

12. I recall the last mention when this matter was before me on 7 February 2007 for further management and preparation for trial.  Mr St John SC sought to explain that he may not be available on 19 February 2007 by reason of a part‑heard commitment, as I recall, before Cronin J.  However, not one word of a notation or warning was proffered that, for “financial reasons”, neither he nor those instructing him may not be prepared to participate at the trial. 

13. The affidavit of the wife in support of her response deposed to what may arguably be described as a profligate or financially imprudent lifestyle led by the husband.  For example, she deposes to his annualised accommodation costs for an apartment in F, a luxury cliff top property at SR, (I recall elsewhere described by the husband earlier in the proceedings as “a weekender”), and a BR apartment totalled $480,000 a year.  Other expenses include the maintenance of a luxury German sports car, the acquisition of jewellery and, it is alleged by the wife, first-class overseas travel.

14. As I understand the matter historically, and this may be an assumption on my part, the husband must have settled the purchase of what was described as a tennis court abutting the SR property in October 2006, the acquisition cost of which was $2.33 million, doubtlessly heavily encumbered with debt.  The total value of the SR property is assessed at about $6.5 million.  The husband has some equity in a property at E which has warranted mentions in earlier affidavits and otherwise in several of my judgments.

15. There are now only two contested cases remaining to be heard in the February sittings of the Long Defended List.  I do not regard the final trial of the husband's application as complex, albeit there are a number of interesting issues for consideration.  The parties have spent considerable moneys over this piece of litigation, cumulatively, I would assess, well in excess of a million dollars, and does not necessarily require two counsel.  I see no good reason why, with diligent application that a competent counsel and solicitor could not pick up the strands left by the previous professional representatives.  There is no evidence to suggest that there are no experienced counsel available within Owen Dixon Chambers. 

16. The husband's central complaint is his inability to finance his potential professional representatives.  However, it is not beyond common experience that competent counsel take on proceedings in circumstances where, given the whole asset structure, each of the parties will ultimately leave this court with sufficient equity from which professional fees and disbursements could ultimately be paid.

17. In coming to this determination, I bring into account the pressures upon this court in its case management procedures.  Whilst that of itself is not decisive, I am conscious of what Kirby J had to say in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 148 at 170, namely:

    Efficiency in the dispatch of court lists can sometimes be purchased at too high a price. 

18. I am also sensitive to the husband's predicament at this point of time.  He is now at the bar table and for the first time, without professional representation.  This is regrettable.  However, I have to balance, in the exercise of my discretion, all competing circumstances and weighing them up, having regard to all the facts before me, I see no merit in the application.  I propose to dismiss it.

19. There is one final point I do wish to make and I do so directly to the husband and the wife.  They have been embroiled in bitter dispute now for many years.  They have endured a contested hearing in September 2004 before Bell J which resulted in an appeal.  All that doubtlessly has been at considerable cost to them, both emotionally and financially. 

20. I see from the husband's trial affidavit, which is now filed, that he proposes to live and work in England, at least in the foreseeable future.  Surely, it is time to seriously consider a sensible and dignified resolution.  That is however a mere gratuitous comment on my part made in good faith.  Failing any resolution, it is my expectation that this matter will proceed next week.

21. Finally, an application has been made by Mr Sweeney on behalf of the wife for costs. I have recently turned by attention to a costs application in these proceedings and delivered judgment on 7 February 2007. The law in relation to costs is adequately set out in that judgment and which I need not repeat here. In my view, having regard to the terms of my extempore judgment delivered this day, there are justifying circumstances pursuant to s 117(2) of the Family Law Act 1975 for an order to be made in favour of the wife the sum sought. It seems to me that the costs claimed are reasonable amount in the circumstances.

22. I propose to dismiss the husband’s Form 2 Application filed 13 February 2007 and order costs in favour of the wife.  I certify for counsel.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  24 August 2007.