Painter and Painter

[2019] FamCA 664

FAMILY COURT OF AUSTRALIA

PAINTER & PAINTER [2019] FamCA 664

FAMILY LAW – COSTS – Property settlement proceedings – offers of settlement – limited asset pool – order for costs in favour of wife.

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

Penfold & Penfold (1980) FLC 90-800
Medlon & Medlon (No 6) (2015) FLC 93-664

APPLICANT: Ms Painter

RESPONDENT: Mr Painter

FILE NUMBER: ADC 1772 of 2017

DATE DELIVERED: 18 September 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 18 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hoskins

SOLICITOR FOR THE APPLICANT: Douglas Hoskins Legal

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. That the husband do pay the sum of $20,000.00 towards the wife’s costs of these proceedings with such payment to be made to Douglas Hoskins Legal Trust Account on account of the wife within three (3) calendar months of the date of this order.

2. That pending payment of the sum referred to in paragraph 1 hereof the husband be restrained and an injunction is hereby granted restraining him from selling, transferring, further encumbering or in any way dealing with the Boat registration number ... (and trailer registration number …).

3. Liberty to the wife to apply with respect to enforcement of the terms of this order.

4. That all extant applications including applications for costs be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Painter & Painter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1772 of 2017

Ms Painter

Applicant

And

Mr Painter

Respondent

REASONS FOR JUDGMENT

Background

1. On 8 May 2017 the wife filed an application for settlement of property.

2. Following upon the filing of responding documents the parties attended at a conciliation conference on 7 July 2017.

3. A registrar noted on the conciliation conference report “settled in principle”.

4. Both parties were legally represented at the conciliation conference.

5. On that same day the matter came back before the court.  An order was made adjourning a directions hearing to 29 August 2017 at 10:00am, with a notation that agreement had been reached in principle at the conciliation conference but that procedural fairness was yet to be afforded.

6. On 29 August 2017 the matter was further adjourned to 7 November 2017 with a notation that a trial date may be required.

7. By correspondence from the husband’s solicitors to the wife’s solicitors dated 11 July 2017, some four days after the conciliation conference, a settlement proposal was put to the wife on behalf of the husband.

8. The correspondence referred to the husband considering that at the conciliation conference, as a result of the ill health of his counsel, he had insufficient time to fully consider all the implications of what was being put to him at the time.

9. The husband’s written settlement proposal was prefaced with the words

   “His position now regarding settlement is accordingly as follows:-…”

   and the penultimate paragraph of the letter was in the following terms, namely

   “We look forward to hearing from you regarding our client’s revised proposal which he considers to be a fair and reasonable settlement of property.”

10. I am satisfied that the proposal for settlement as promoted by the husband’s solicitors on his behalf in that correspondence was different in its terms to that which had been agreed some days earlier at the conciliation conference.

11. In paragraph 3.3 on page 2 of the correspondence the husband proposed that a debt he alleged the parties owed to his mother in the sum of $54,750.00 should be repaid to her from the net proceeds of sale of the property at B Street Suburb C.

12. The existence of such debt was always disputed by the wife, although she acknowledged that the funds as alleged by the husband had been advanced by his mother.

13. It was the position of the wife throughout the proceedings that the monies advanced by the husband’s mother were by way of gift and not loan.

14. The wife’s solicitors replied to the correspondence of 11 July 2017 by letter dated 25 August 2017.

15. The wife’s solicitors advised therein that the husband’s settlement proposal was rejected by their client, but that she remained willing to resolve the matter on the basis of the agreement she understood had been reached at the conciliation conference.

16. A substantial difference between the parties’ respective positions was whether the husband’s mother should be repaid the funds she had provided to the parties from the net proceeds of sale of the B Street property or whether the husband should be solely responsible for repayment of such funds if and when they were sought from him by his mother.

17. There was no real dispute between the parties as to the fact that the husband’s mother had provided various monies to the husband from time to time during the marriage totalling $60,000.00 but rather, whether such funds were by way of gift or loan.

18. By the time of trial the husband had paid to his mother the sum of $5000.00.  Such monies were paid to her within 4 months of the parties’ separation, against a backdrop of no payments whatsoever being made to her from the time of the original $20,000.00 tranche of the advances in 1992.

19. In terms of negotiations between the parties that was a significant issue, in circumstances where the total non-superannuation asset pool available for distribution between the parties as found by the court in its judgment on 17 December 2018 was $156,395.00.  The court found there was a total superannuation pool of $40,551.00.

20. At the time of the negotiations the parties were not in a position to accurately calculate the size of the asset pool available for distribution as neither the B Street nor the property at D Street Town F had sold.

21. Both parties had filed statements of financial circumstance, on 8 May 2017 in the case of the wife and 31 May 2017 in the case of the husband.  They had also filed affidavits in support of their initiating application and response respectively, indicating a very modest asset pool.  The property at D Street Town F was secured by mortgage over the property at B Street Suburb C.  It was common ground that it was likely that there would be little or no funds remaining for distribution between the parties from the sale of the D Street property and indeed possibly a shortfall in those sale proceeds that would remain secured over the B Street property.

22. The husband was unwilling to resolve the matter as proposed by the wife.

23. On 25 October 2017 he filed an application in a case seeking orders for a continuation of the marketing of the D Street property but with a reduced listing price of $285,000.00 as well as the listing of the property at B Street for sale on terms and conditions as agreed between the parties.

24. The total debt to Westpac Banking Corporation at that time with respect to both properties was $687,259.00.

25. At that time the wife remained resident in the B Street property with the parties’ two adult sons who both suffer significant mental health difficulties.  The D Street property was untenanted.

26. By the time of the filing of that application the D Street property had been on the market for sale for some time at an asking price of $299,000.00, with the only offer received being in the sum of $250,000.00.

27. The husband was maintaining the mortgage payments with respect to both mortgages from income derived from the excavation business owned and operated by the parties during the marriage and which the husband continued to operate post separation.

28. In the wife’s response she sought a delay in the listing of the former matrimonial home until no earlier than 31 January 2018 and further, that the husband pay interim spousal maintenance in the sum of $500.00 per week.

29. By the time the wife’s responding documents were filed on 15 November 2017 the asking price for the D Street property had already been reduced with her consent to $285,000.00.

30. On the return date of the application in a case and response, the order of 29 August 2017 requiring the husband to pay the mortgages with respect to the B Street and D Street properties was continued during the period of the adjournment.  An order was made in relation to a short form valuation of the excavating business, the matter was listed for trial, and the interim orders sought by the parties in relation to the sale of the B Street and D Street properties and the question of interim spousal maintenance were adjourned to 15 February 2018.

31. On that date orders were made for the B Street property to be placed on the market for sale within six weeks of 15 February 2018, for the wife to have sole use and occupation of the property pending settlement of the sale, for the husband to continue to pay the mortgage payments, council rates and other utility expenses in respect of the B Street property and further, that pending the sale of the D Street property the husband pay the mortgage payments, council rates and other utility expenses in respect of that property.  Provision was made for the disbursement of the sale proceeds of the B Street property.

32. It was common ground that all of the sale proceeds of the D Street property would be retained by Westpac and that there would be a shortfall with respect to the outstanding mortgage.

33. The matter was initially listed for trial on 23 May 2018 but the trial was not reached.

34. Negotiations which extended for most of that day did not succeed in a resolution.

35. The matter eventually came on for trial on 8 November 2018 and continued on 9 November 2018.  Judgment was delivered ex-tempore on 17 December 2018.

36. The final order was in the following terms:

    UPON NOTING that the parties are agreed that the sum of $91,578.00 remains in the Trust Account of G Business on account of the parties arising from the sale of the D Street and Suburb  C properties.

    THE COURT ORDERS THAT:

    1.That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property and spousal maintenance:

    a.that the total amount of the funds currently held in G Business Trust Account on behalf of both of the parties be forthwith paid to Douglas Hoskins Legal Trust Account on account of the wife;

    b.that the wife retain for her sole use and benefit absolutely free of any claim by the husband the monies referred to in paragraph 1(a) hereof together with all shares, savings, investments, motor vehicles, jewellery, household furniture and effects, horses and equipment and any other personalty whatsoever in her possession or control not otherwise specified herein, together with the additional superannuation referred to in paragraph 1(i) hereof;

    c.That the husband retain for his sole use and benefit absolutely free of any claim by the wife all shares, savings, investments, motor vehicles, household furniture and effects, tools, firearms and equipment, boat and fishing equipment and any other personalty whatsoever not otherwise specified herein, SAVE AS TO the superannuation sum referred to in paragraph 1(i) hereof;

    d.that the wife pay all and any monies owing by the parties to the wife’s mother and indemnify the husband in respect thereof;

    e.that the husband pay all and any monies claimed by his mother to be owing to her by the parties and indemnify the wife in respect thereof;

    f.that hereafter the wife shall pay and discharge all of her personal debts and liabilities incurred in her sole name to the complete exoneration of the husband who shall have no liability with respect thereto;

    g.that hereafter the husband shall pay and discharge all of his personal debts and liabilities incurred in his sole name to the complete exoneration of the wife who shall have no liability with respect thereto;

    h.that henceforth each party is restrained and an injunction is hereby granted restraining them from pledging the credit of the other;

    i.In relation to the husband’s interest in H Superannuation Fund account number … (“the fund”) of which J Superannuation is the Trustee (“the Trustee”):

    i.That the Court allocate as required by Section 90MT(4) of the Family Law Act 1975 a base amount of TWENTY SIX THOUSAND FOUR HUNDRED AND FORTY EIGHT DOLLARS ($26,448.00) to the wife out of the husband’s interest in the fund.

    ii.That pursuant to Section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable amount becomes payable in respect of the husband’s interest in the Fund the Trustee of the fund shall do all such acts and things and sign all such documents as are necessary to pay to the wife the entitlements calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of TWENTY SIX THOUSAND FOUR HUNDRED AND FORTY EIGHT DOLLARS ($26,448.00) as set out in the preceding paragraph and that there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

    iii.That paragraphs 1(g)(i) and 1(g)(ii) herein shall have effect from the operative time.

    iv.That the operative time of these orders shall be the beginning of the fourth (4th) business day after the day on which a sealed copy of these orders is served on the Trustees of the fund.

    v.That these orders shall bind the Trustee.

    2.That by way of spousal maintenance the husband do pay to the wife the sum of $400.00 per week for a period of 12 calendar months commencing as and from Friday 16 November 2018 and concluding on Friday 15 November 2019 inclusive with such payments to be made to a bank account to be nominated and advised by the wife to the husband within 7 days of the date of this order and with payments to be made in the manner following, namely;

    a.the amount of $2400.00 (or such lesser sum as shall remain owing as and from 16 November 2018) on or before Friday 21 December 2018;

    b.as to the sum of $400.00 payable on Friday of each week commencing on Friday 28 December 2018 and concluding on Friday 15 November 2019.

    3.That all extant applications be otherwise dismissed.

37. The court found that the monies advanced to the parties by the husband’s mother between 1992 and 2011 could not be characterised as a loan and that the evidence of the husband and his mother did not support the husband’s position that the sum of $54,500.00 should be included in a list of the parties’ liabilities in calculating the net assets available for distribution.

38. In addition, the court found that the $5000.00 “paid back” by the husband to his mother immediately post separation should be “added back” to the asset pool available for distribution between the parties and characterised as funds retained by the husband upon separation.

39. Nevertheless, the court found that the sum of $60,000.00 advanced by the husband’s mother between 1992 and 2011 was substantial in circumstances of a very modest asset pool overall, such that with respect to contribution, notwithstanding an otherwise equal contribution by each of the parties to the acquisition, conservation and preservation of their assets, there should be an adjustment on account of contribution in favour of the husband as to 8%.  The court awarded the husband a further 2% adjustment on account of his post separation contribution.

40. The court likewise found that it was appropriate to make an adjustment of 10% in favour of the wife on account of section 75(2) factors resulting in an overall equal distribution of the parties net assets.

41. To avoid a payment by the husband to the wife in the sum of $7,357.00 to effect an equal division of the overall asset pool, which payment may have required him to sell his boat, the court determined that a more equitable solution was to make a further split of the husband’s superannuation over and above that already determined in the sum of $7357.00.

Current application

1. On 17 December 2018, when judgment was delivered, the wife’s application for costs in relation to issues of property settlement and spousal maintenance as contained in her initiating application was listed for argument on the papers on 7 March 2019 and certain procedural orders were made.

2. The matter was transferred to the Family Court of Australia from the Federal Circuit Court and listed for hearing before me on 18 July 2019.

3. The wife seeks the following orders:

   1.That the husband pay the wife’s costs of the within action fixed in an amount of $55,497.11 (or in the alternative in such sum as determined by the Court);

   2.That the husband pay the said amount referred to in paragraph 1 above to Douglas Hoskins Legal Trust Account within 3 months of the date of the order.

   3.That the husband be restrained and an injunction be hereby granted restraining him from selling, transferring, further encumbering or in any way dealing with the following assets prior to the payment of the amount sought in paragraph 1 above:

   a.The husband’s Boat registration number ... (and trailer registration number ...);

   b.The husband’s Motor Vehicle 1;

   c.Any business plant and equipment registered in the husband’s name.

   4.That in the event the husband fails to pay the said amount referred to in paragraph 1 above:

   a.The Boat registration number ... (and trailer registration number ...) do be sold upon such terms and conditions as shall be determined by the wife with the proceeds of the sale to be paid to Douglas Hoskins Legal Trust Account in partial satisfaction of the amount referred to in paragraph 1 herein.

   5.Liberty to apply in the event that there remains an outstanding amount to be paid to the wife in accordance with paragraph 1 herein after the sale of the boat.

   6.Interest shall accrue on all amounts outstanding in accordance with paragraph 1 pursuant to the Family Law Rules.

4. The husband opposed the order.

5. The wife’s solicitor submitted that this was an appropriate case in which the court should find that there are circumstances that justify the court making an order that the husband bear the wife’s costs.

6. Ms Hoskins submitted that the terms of the wife’s offer to settle made in writing to the husband’s solicitors by correspondence dated 25 August 2017, which proposal was in terms of the parties agreement reached at the conciliation conference on 7 July 2017 but resiled from by the husband, was an order in similar terms, if not slightly more preferable to the husband than the order ultimately made by the court following upon two days of trial.

7. She further submitted that the wife made a further offer in writing to the husband on 6 November 2018 that was in even more favourable terms to the husband, particularly with respect to it containing an option that provided for payment of a small capital sum to the husband in consideration for payment of spousal maintenance over a period of two years rather than the one year previously proposed.

8. I accept the submission of Ms Hoskins.

9. I likewise accept the submission of the husband that he also attempted to enter into negotiation to resolve this matter in circumstances where it was abundantly clear on the case of both parties that the asset pool was very limited.

10. Nevertheless, the substantial difference between the husband’s approach to settlement and that of the wife was his insistence on the funds advanced by his mother between 1992 and 2011 being characterised by the court as a loan rather than, as found, a contribution made on his behalf.

1. That finding was made following upon hearing the husband’s evidence-in-chief, the evidence-in-chief of his mother and cross-examination of both.

2. In addition, at trial the husband pursued arguments with respect to various significant amounts being “added back” to the asset pool and characterised as funds retained by the wife for her sole benefit, the majority of which arguments were rejected by the court.

Legislation – costs – Family Law Act 1975 section 117

(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a)the financial circumstances of each of the parties to the proceedings;

(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)such other matters as the court considers relevant.

Parties submissions

1. Ms Hoskins submitted on behalf of the applicant wife that following upon her application for property settlement and spousal maintenance coming before the court on 8 May 2017, a conciliation conference was held some two months later on 7 July 2017 at the conclusion of which the file was marked “settled” by the registrar.

2. She submitted that thereafter the husband resiled from that agreement, which in turn lead to significant costs impositions not only on her client but also on the husband.

3. She submitted that the written offer to settle received from the husband’s solicitors by letter dated 11 July 2017 was in significantly different terms to the agreement reached between the parties at the conciliation conference, particularly with respect to the treatment of the alleged loan from the husband’s mother.

4. Ms Hoskins argued that the counter proposal of the wife forwarded to the husband’s solicitors by correspondence dated 25 August 2017 was in almost identical terms to the original agreement reached at the conciliation conference and further, that the written offer forwarded some two days prior to the commencement of the trial in August 2018 was even more favourable to the husband.

5. Ms Hoskins argued that ultimately the order made by the court by way of final order for settlement of property was more advantageous to the wife overall than the wife’s two proposals for settlement of property in that the wife retained all of the net sale proceeds of the B Street property (which encompassed the loss on the D Street property) and further, that the court rejected the argument of the husband that the funds advanced by his mother should be treated as a loan to the parties requiring repayment.  Having made an adjustment in the husband’s favour by way of contribution to recognise the funds advanced, the court ordered that the husband be personally responsible for the repayment of any monies sought by his mother.

6. In addition, Ms Hoskins submitted that many of the other amounts the husband sought to be “added back” to the pool available for distribution and characterised by the husband as funds retained by the wife upon separation should not be so “added back” and further, that the order made by the court for spousal maintenance in the sum of $400.00 per week for one year was a greater amount than proposed by the wife in her settlement offer.

7. It was the wife’s case that the conduct of the husband had resulted in both parties incurring costs that were simply unnecessary in any event and in particular, taking into account the limited asset pool available for distribution.

8. In addition, Ms Hoskins submitted that the husband’s conduct during the period prior to trial had necessitated an interim application at the time of the sale of the B Street property as a result of failure to negotiate interim financial arrangements.  This application was resolved on the day of hearing by way of a consent order.

9. She submitted if the agreement reached between the parties at the conciliation conference had simply been effected there would have been no need for the proceedings to span a period of almost 18 months and result in both parties spending significant funds on unnecessary legal fees.

10. For his part, the husband, who appeared in person in relation to the costs argument although was represented at trial, submitted that the reason he resiled from the agreement the parties reached at the conciliation conference was that his counsel had been ill on that day and he had not been in a position to properly consider the negotiations.

11. He submitted that as soon as 11 July 2017 he instructed his solicitor to forward a written proposal for settlement to the wife’s solicitors and it was his position that that was an illustration of him “trying to keep the negotiations going”.

12. He complained that no response had been received to that correspondence until that from the wife’s solicitors dated 25 August 2017, and that the late formal offer for settlement made by the wife on 6 November 2018 was made at too late a stage to enable him to have sufficient time to consider the proposal.

13. He submitted that in circumstances where he did not know how long it would take to sell the D Street and the B Street properties he did not know how long he would be paying the mortgages for which in turn made him cautious about resolving the matter at an early stage.

14. He conceded that the B Street property was sold by 19 July 2018 at which time the asset pool was able to be more accurately calculated.

15. That was some four months prior to trial.

16. Mr Painter submitted that as a result of the stress arising from the costs issue he has attended on a psychologist, that his financial situation has worsened to the extent that he now has a bad credit rating and is unable to borrow any money and that he had been advised to work less and relax more.

17. As is clear in the legislation set out herein, the court has a discretion to make an order as to costs but the court must find that there are circumstances justifying the making of an order for costs as an essential preliminary to the making of an order.[1]

    [1]Penfold & Penfold (1980) FLC 90-800 at pp 75,053-4

Conclusion

1. I am satisfied that this is a matter where the court would be justified in the circumstances of the case in making an order for costs in favour of the wife.

2. I am satisfied that this is a matter where both parties ultimately faced significant legal costs that in all of the circumstances could, had the husband taken a more prudent approach to the offers made by the wife, been avoided by both parties.

3. Section 117(2A) as referred to earlier herein sets out the matters the court must take into account in considering what order, if any, should be made under section 117(2) of the Act.[2]

   [2]Family Law Act 1975 (supra)

4. Both of the parties have limited finances available to them.

5. The wife filed a statement of financial circumstances on 8 May 2018.

6. It was conceded on behalf of the wife by Ms Hoskins that the document had been filed prior to the superannuation split ordered in the final property settlement order being effected and that in those circumstances the wife’s superannuation had increased in accordance with that order.

7. The wife deposed in her further amended financial statement filed on 5 February 2019 to an income of $785.00 per week comprising Centrelink benefits of $325.00 per week, wages of $60.00 per week and spousal maintenance of $400.00 per week.

8. In her affidavit filed 11 April 2019 she deposed in paragraph 31 to having obtained employment for 30 hours per week on contract with a hope that the contract will be continued in the 2020 school year.

9. Her financial circumstances however have not significantly changed in that her gross weekly income is approximately $750.00 per week as she no longer receives any Centrelink benefits.

10. She deposed to the total value of property owned by her being $13,779.00, with total liabilities of $35,000.00.

11. She remains living with the parties’ two adult sons aged 25 and 23 respectively but deposes to no expenses being paid for by them for her benefit.  She pays modest rent of $184.00 per week with total modest living expenses of $592.00 per week and car insurance payments making a total weekly expenditure of $821.00 per week.  She has expended the majority of the funds received at settlement on legal fees and modest but necessary living expenses.

12. The husband’s most recent financial statement was filed on 30 January 2019.

13. He deposed in that document to total average weekly income of $3065.00 with total personal expenditure on a weekly basis of $3857.00.

14. He deposed to total property owned by him in the sum of $102,831.00, superannuation of $11,355.00 and total liabilities of $111,924.00.

15. The husband continues to own and operate an earthmoving business.

16. He resides with his de facto partner Ms K who likewise earns a modest income.  They reside in her house.

17. It was submitted by Ms Hoskins that the husband’s weekly expenses should be reduced by $250.00 per week that he deposes to being the loan repayment amount to his mother, $192.00 per week being the loan with respect to his Boat which she submitted had been discharged and $302.00 per week by way of the finance payments for the Motor Vehicle 1 Utility.

18. I am satisfied that his living expenses in the sum of $599.00 per week inclusive of $150.00 board are modest and reasonable.  I am satisfied that even if I acceded to the submission of Ms Hoskins in relation to a reduction of the husband’s weekly expenses it would still not result in a surplus of income over expenditure.

19. Overall I am satisfied that both parties have very modest income and modest expenses.

20. I find that each party is gainfully employed and doing their best to manage financially in circumstances where these proceedings have depleted each of them of significant and important funds.

21. Neither party is in receipt of legal aid.

22. Ms Hoskins submitted that the proceedings were made more complex than necessary as a result of a failure on the part of the husband to properly provide discovery such that the matter could move forward quickly and efficiently.

23. I am not persuaded on the facts of this case that that is a significant matter for the court to take into account.

24. These proceedings were not necessitated by the failure of a party to comply with previous orders of the court nor do I consider this to be a matter where it could be said that either party has been wholly unsuccessful in the proceedings.

25. There is no doubt however that the main subjects of contention in the final hearing, namely the alleged outstanding debt to the husband’s mother and the “adding back” of various amounts the husband alleged the wife retained at settlement, were arguments in respect of which the husband was wholly unsuccessful.

26. The husband made a written offer to settle these proceedings through his solicitors by correspondence dated 11 July 2017.

27. This offer to settle was on the basis of the parties being jointly liable for the alleged outstanding debt to the husband’s mother and to various amounts being “added back” to the pool on the basis of the wife retaining various assets to those amounts at or shortly after separation.

28. The court found against the husband in respect of both those positions.

29. The wife made a formal offer to settle by letter from her solicitors dated 25 August 2017.

30. I accept the submission of Ms Hoskins that the offer contained in that correspondence was slightly more advantageous to the husband than the terms of an agreement reached between the parties at a conciliation conference on 7 July 2017.

31. I further accept Ms Hoskins submission that the second offer of settlement made in writing by the wife through her solicitors two days prior to the commencement of the trial was slightly more advantageous to the husband again than the first offer.

32. I find that the husband’s rejection of both of those offers, but in particular the written offer dated 25 August 2017 was ill advised, that the court found against his position at trial and that the final order was equal if not slightly more favourable to the wife than either of the proposals upon which she was prepared to settle the matter.

33. I find that the husband’s actions in rejecting the offers resulted in both parties suffering significant financial loss arising from legal fees unnecessarily and unreasonably incurred by each of them.

34. I further find that the husband’s argument in relation to the wife’s application for costs with respect to the interim proceedings is without merit.

35. The husband argued that in circumstances where he could not be certain how long it would take to sell both the B Street and the D Street properties and where he was liable for the outgoings with respect to those properties, he was unable to agree with the wife’s position and thereby avoid an interim hearing.

36. I find that the length of time to sell those properties was not at the heart of the argument in this matter and that the reason for its failure to settle was the husband’s position that monies advanced by his mother were by way of loan and that the wife should be accountable for the retention of various funds at or shortly after separation.

37. These were arguments in respect of which the husband was unsuccessful in the final hearing.

38. I am mindful of the impecunious financial circumstances of the husband.[3]

    [3]Medlon & Medlon(No 6) (2015) FLC93-664 at paragraph 23.

39. The wife has as a result of it being necessary for her application to proceed to trial, suffered financial detriment.

40. It was the husband’s failure to accept the wife’s reasonable written offer very early in these proceedings that necessitated their continuation to trial.  The court found that the husband’s position at trial lacked merit.

41. The final order was in very similar terms to that sought by the wife and upon which she was prepared to resolve the matter within three months of the commencement of the proceedings.

42. The wife seeks the sum of $55,497.11 as specified in paragraph 43 hereof.

43. The amount claimed is calculated in accordance with the annexures to the affidavit of Mr L filed herein on 21 February 2019. The schedule of costs has been calculated in accordance with the Family Law Rules 2004.

44. I find that the amount sought is just and reasonable in all of the circumstances.

45. Nevertheless, and accepting that impecuniosity is not a bar to an order for costs, I find that taking into account the financial circumstances of each of the parties to the proceedings, an order for costs should be made in favour of the wife in the sum of $20,000.00.

46. The wife sought, inter alia, orders that pending payment to her of costs in the sum sought by her or as ordered by the court, the husband be restrained from selling, transferring, further encumbering or in any way dealing with his Boat registration number ... (and trailer registration number …), his Motor Vehicle 1 and any business plant and equipment registered in his name.

47. She further sought an order that the boat and trailer be sold and the proceeds of sale be used to satisfy or partially satisfy any order for costs in the event of the husband failing to pay the amount ordered to Douglas Hoskins Legal Trust Account within three months of the date of the order.

48. In submissions the husband submitted that the Boat was refinanced in the joint names of he and his sister in circumstances where he was unable to refinance in his own name.

49. Nevertheless, even on his submission the boat is of significant value and I consider that it is appropriate that the injunctive order sought by the wife be made, but only in relation to the boat and trailer and not in relation to the Motor Vehicle 1 or the business plant and equipment which are all utilised by the husband in relation to his earthmoving business.

50. Accordingly, I will make the order for injunction as sought by the wife and grant liberty to apply with respect to the enforcement of the costs order in the event it remains unpaid after three calendar months.

51. For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 18 September 2019.

Associate: 

Date: 18 September 2019