Pera & Pera

[2007] FamCA 783

FAMILY COURT OF AUSTRALIA

PERA & PERA [2007] FamCA 783

FAMILY LAW – ORDERS - Enforcement of orders - Variation of property orders where expenses to discharge a mortgage not explicitly referred to in orders - Machinery provisions - Superannuation: party entitled to "the fund" in final orders but subsequent dispute about what was in the fund - Right of party to seek to recover superannuation fund assets rather than trustee

FAMILY LAW – COSTS - Costs thrown away where party not ready to proceed - The Elias “principle”.

Family Law Act 1975 (Cth)

Dawes (1990) FLC 92-108; 13 Fam LR 599
Elias v Elias (1977) FLC 90-267
Fountain v Alexander (1982) 8 Fam LR 67
Jordan (1997) FLC 92-736; 21 Fam LR 382
Langford v Coleman 1993) FLC 92-346; (1992) 16 Fam LR 228
Molier and Van Wyke (1980) FLC 90-911

APPLICANT: MR PERA

RESPONDENT: MRS PERA

FILE NUMBER: MLF 6059 of 2003

DATE DELIVERED: 3 AUGUST 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 31 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MORT

SOLICITOR FOR THE APPLICANT: NEDOVIC & CO

COUNSEL FOR THE RESPONDENT: MR HAMMETT

SOLICITOR FOR THE RESPONDENT: OAKFAIR LAWYERS

Orders

1. That the wife forthwith make available to the husband for delivery to the P Superannuation Fund, the following paintings (or an agreed sum of money in lieu thereof):

   (a)The painting known to the husband as “[R]” which is called by the wife “[N]”; and

   (b)       The painting known as “[W]”.

2. That by 4pm on 17 August 2007:

   (a)The wife be responsible for and pay one half of the “Delayed establishment fee” sought by AT Limited (known as AT); and

   (b)The husband be responsible for and pay the other one half of the “Delayed establishment fee” and the other fees required by AT referred to in the email of Mr D to Mr M sent on 28 June 2007 at 12.17 pm.

3. That the wife pay the husband’s costs thrown away in respect of the hearing on 5 July 2007.

4. That for the purposes of paragraph 3 of these orders, the costs thrown away shall be the husband’s counsel’s marked brief fee and any solicitor costs incurred by the husband fixed according to the Schedule to the Family Law Rules 2004.

5. That the application of the husband filed 14 June 2006 and the response of the wife filed 28 June 2007 be otherwise dismissed save as to any application for costs by either party.

6. That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:

   (a)Be filed with the Associate to Justice Cronin by 4 pm on 17 August 2007, and

   (b)       Be served upon the other party by that date.

7. That in the event that an application is made for costs by either party pursuant to paragraph 6 hereof, the other party shall have until 4 pm on 24 August 2007 to reply.

8. If no further application by either party is filed by the date referred to in paragraph 6, all applications shall be deemed to be dismissed.

9. That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage a lawyer as counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as PERA & PERA

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6059 of 2003

MR PERA

Applicant Husband

And

MRS PERA

Respondent Wife

REASONS FOR JUDGMENT

1. On 4 April 2007, after a number of days of hearing, I made orders by consent of the parties.  Counsel drew the minutes of orders and explained them and I was satisfied that they were just and equitable.

2. Notwithstanding what appeared to be the comprehensive settlement, the parties are back before the Court on enforcement proceedings.  Each side makes allegations against the other.  As will become apparent from these reasons, a significant part of the problem arises out of the interpretation of the orders and what has happened to each party subsequent to them.

3. There are a number of issues involved in this case.  In simple form they are:

   (a)whether two paintings in the possession of the wife belong to the superannuation fund that was retained by the husband in the property settlement;

   (b)whether a further 1000 Telstra shares which are registered in the name of the wife actually belong to the same superannuation fund;

   (c)whether the wife complied with the order made on 4 April 2007 and notified a real estate agent that the husband was thereafter entitled to the rent from a property;

   (d)what responsibility each party has for costs and expenses associated with a mortgage that encumbered the matrimonial home;

   (e)various costs incurred as a result of the adjournment of the proceedings before me;

   (f)whether the husband had complied with the same orders and provided documents to enable taxation issues to be calculated;

   (g)whether the husband had breached prior orders in relation to extensive borrowings against the matrimonial home.

4. Underlying at least two of these issues was the wife’s argument that there was no jurisdiction to deal with the superannuation issue because the trustee of the fund had never been joined as a party and any enforcement of rights of collection of assets relating to the superannuation fund was a matter for the trustee.  By inference, I took the wife’s argument to mean that it was a matter in which proceedings should be issued in the civil courts in detinue.

5. Counsel for the wife further argued that if that argument did not find favour, there was still a significant dispute on the evidence between the parties about the ownership of the various assets involved and that I could not make a decision on the papers because the evidence needed to be tested.

6. In respect of the jurisdiction issue, for reasons that I shall elaborate below, I say that I have jurisdiction to determine the matter and propose to do so.

7. In respect of the evidentiary issue, my view is that the evidence is sufficiently clear for me to make objective findings on the affidavit material.

8. The husband filed his Form 2 application on 14 June 2007 seeking that the wife “comply” with the orders made on 4 April 2007 and consequential orders. 

9. In reply, by a Form 2A response filed 28 June 2007, the wife set up the jurisdictional argument and complained that the husband had not complied with the orders that I made on 4 April 2007.  In addition, she asserted that the husband was in breach of orders of Bell J and Mushin J and had to be “accountable” for those breaches.

10. In support of her response, the wife set out that as she understood the husband’s proposed orders, he was seeking to recover a painting known as “[R]” as well as the transfer of some Telstra shares to the fund.  She set out that the Telstra shares were hers and did not belong to the superannuation fund.  She claimed that there was no painting known as “[R]”.  Her counsel said that this was not an enforcement action and that even if it was, the husband was not the trustee of the fund and that effectively what he was seeking was a determination of what the fund owned. 

11. The enforcement provisions of the Family Law Act 1975 (Cth) (“the Act”) are set out in s 105. To be able to enforce a decree however one needs to look at the jurisdictional provisions. The jurisdiction of the Family Court to deal with matrimonial causes is set out in s 39(1). In s 4, under the provisions headed “matrimonial cause”, one finds sub-paragraph (f) which reads:

    (f)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

12. In my view, these proceedings fall within that definition.

13. In Fountain v Alexander[1] Gibbs CJ in a case involving a children’s matter said:

    Paragraph (f) does not require that the proceedings to which it refers should be proceedings between the parties to a marriage…All that is necessary is that the proceedings should be in relation to, inter alia, completed proceedings of a kind referred to in paragraph (c)…

    [1] (1982) 8 Fam LR 67 at 71

14. As I pointed out, that was a case involving a child and the same argument can be applied to a property matter.  The joining of the superannuation fund trustee in my view is therefore unnecessary.

15. Sections 90MC and 90MD of the Act refer to superannuation interests and specifically that superannuation interest is to be treated as property for the purposes of the definition of matrimonial cause in s 4.

16. Paragraph 4(b) of the order made on 4 April 2007 reads:

    The husband shall retain for his own use and benefit absolutely:

    (a)…

    (b)P Superannuation Fund;

    (c)…

    (d)…

    (e)…

17. Although paragraph 4 is rather inelegantly put, my view is that the intention is clear namely that the husband is entitled to the benefits of that superannuation fund.

18. Accordingly, regardless of who the trustee is, I accept that the husband has a right to protect and enforce vis a vis the wife, his right to the interest in the fund and accordingly, I have jurisdiction to deal with the application to force compliance with the order made on 4 April 2007 in so far as the husband requires the wife do all things necessary to ensure that the assets that she holds belonging to the fund are put back into the fund.

19. This gives rise to the question of who owns the paintings and the Telstra shares.

20. The husband in his affidavit filed 14 June 2007, annexed a letter from his solicitor addressed to the solicitor for the wife setting out that the painting “[R]” was to be returned because it was an asset of the superannuation fund.  The letter said that “this was extensively discussed on the day of settlement”.  I made it very clear to all parties that I was not going to look behind the orders[2].  The letter went on to say that instead of returning “[R]”, the wife returned “[Z]” and that therefore, she was in breach of the orders.

    [2] See Langford v Coleman (1993) FLC 92-346; (1992) 16 Fam LR 228

21. The wife by affidavit replied to the husband’s affidavit and said:

    The painting “[R]” I do not have and have no knowledge of.

    The paintings that I have in my possession are “[S]” (known by me as “[D]”) as indicated by my husband and “[N]”.

22. The wife then went on to say that in order to avoid paying more legal costs, she delivered the painting in her possession known as “[N]”.  When the matter came before me on 19 June 2007, the wife’s position was simple.  She said the matter was disputed.  I then made an order that the relevant paintings be produced for inspection.

23. The husband attended the offices of a solicitor to inspect the two paintings and said that the one known as “[R]” is the one and the same painting also referred to as “[N]” by the wife.  The second painting that he inspected, “[W]” was also said to be an asset of the superannuation fund.  Ironically enough, the wife’s desire to retain the painting “[S]” was known to the husband and he acknowledged its sentimental value.  He said that when the case was heard on 4 April 2007, notwithstanding that “[S]” was an asset of the superannuation fund as well, he elected to forego it as part of the settlement process. 

24. I shall turn to the Telstra shares issue in a moment but at paragraph 12 of the wife’s affidavit filed 28 June 2007 she was emphatic in saying that she had never known herself to be a trustee of the superannuation fund.

25. When one looks at the balance sheet of the superannuation fund, the paintings are quite clearly referred to as an asset of that fund.

26. In his affidavit, apart from making a number of assertions, the husband attached a variety of documents as annexures.  I am satisfied that those documents show that:

    (a)for 15 years the wife signed annual returns for the superannuation fund and was named as a trustee;

    (b)the wife signed a deed prepared by a solicitor in relation to the superannuation fund in 1988;

    (c)the wife executed a deed of amendment of the superannuation fund in 1990;

    (d)the wife signed a deed making an appointment of an additional trustee on 1 June 1994 and that that document appears to have been prepared by the same solicitor as the earlier documents;

    (e)the wife wrote a letter to the share registry of Telstra indicating an acknowledgement of the superannuation fund holding Telstra shares; and

    (f)the wife sought to have stale cheques replaced and endorsed them to be payable to the superannuation fund.

27. On 11 July 2007, the wife filed a second affidavit.  She said that “[R]” was her sole property acquired long before the superannuation fund was created.  She said that she had never agreed to sell any paintings and that to the extent that the husband asserted that the painting was “sold” to the superannuation fund in 1992, any record in a tax return of the fund purporting to record a sale was incorrect.

28. The wife went on in her affidavit to say that her “defence” to any action by a trustee of the fund was that the property did not belong to the fund.  She reasserted that she was the sole equitable and beneficial owner of the paintings as well as the shares.  She said that if that was not the case then she became the sole equitable and beneficial owner by virtue of the orders made on 4 April 2007.  Later in the affidavit, she repeated her statement that she did not agree to the sale of any such paintings but more importantly that the husband did not sell any such painting to the superannuation fund.

29. Notwithstanding what she had said in the affidavit filed 28 June 2007 about not being a trustee, in the second affidavit, the wife said:

    …I had little or nothing to do with my husband’s accountant.  I never attended my husband’s accountant’s office.  I did sign my tax return at my husband’s request, which tax return had been prepared by my husband’s accountant.  I had no input into the figures that constituted my taxation return.  I was not aware that I had signed any documents in respect of my husband’s superannuation fund in particular that I executed any document to be trustee of my husband’s superannuation fund or any other documents including transfer of dividends.  All decisions in respect of taxation matters were made by my husband without my husband seeking my consent.  My husband would have been aware that I would not have consented to the sale of any painting by [Ms Y] to his superannuation fund.  I did not act as a trustee of my husband’s superannuation fund.  My husband made all the decisions and acted third parties such as the buying and selling of shares and instructions to his accountant.

30. Having regard to what I have earlier said about the number of events involving the wife over a long period of time, I do not accept that she was oblivious to the transactions involving the superannuation fund nor that it was simply a matter of the husband’s doing.

31. There is a distinct parallel in this case with the line of authority starting with Elias[3].  As was made clear by the Full Court in Dawes[4], the wife cannot tell the revenue authorities one thing and the Court another.  Notwithstanding her assertion that she was not aware of what was happening and that these matters were all the responsibility of the husband, she signed the documents to which I have earlier referred and all of which are set out in the annexures to the husband’s affidavit over a long period of time.

    [3] Elias v Elias (1977) FLC 90-267

    [4] (1990) FLC 92-108; 13 Fam LR 599

32. I consider myself bound by the decision in Dawes[5] as was Chisholm J in Jordan[6].  His Honour there said that he thought that the Full Court seemed to be laying down a proposition that a person could not be heard to say something if it was inconsistent with a representation made to revenue authorities particularly where they had gained an advantage from doing so.  His Honour said that if all that was meant was that in some circumstances a person was unlikely to be believed, the language of the authorities would “surely be quite different”.  His Honour went on to say:

    I conclude, therefore, that the principle is more than an evidentiary presumption.  Where it applies, it would appear to exclude the giving of evidence to assert what, according to the rule, a person cannot be heard to say.  Having regard to the findings I have made about the consistency with which the wife has been involved in the signing of documents and particularly those purporting to the taxation office to be a trustee, this is not a situation in which she can now assert that she was just doing the husband’s bidding or that she did not understand what she was doing.

    [5] ibid

    [6] (1997) FLC 92-736 at 83,924; 21 Fam LR 382 at 388

33. The only conclusion I can therefore draw is that the paintings that the wife has consistently said belong to the superannuation fund, in fact do so.  The question then arises as to whether or not I can and should make orders to rectify the current position.

34. I shall deal with the Telstra shares next but before doing so, say that this is an appropriate case to make further orders clarifying the entitlement of the husband and consequential orders accordingly.

35. I shall also refer later in these reasons (see paragraphs 59 and 60) to the power to make further orders.  In respect of the paintings, I am satisfied on the balance of probabilities that they belong to the superannuation fund and the wife must return them.  However, if there are sentimental attachments to the paintings, I see no reason why a cash payment cannot be substituted.  That should only occur if there is agreement.

36. The second issue relating to the superannuation fund concerns some Telstra shares.  As will be seen from the order of 4 April 2007, the wife was to transfer to the superannuation fund 1000 Telstra shares.  The husband acknowledges that it was appropriate for that order to be made but goes on to say that the remaining shares in the possession of the wife belong to the fund as well.

37. In her affidavit, the wife denied that the remaining Telstra shares were held by her as trustee for the superannuation fund.  She said they had nothing to do with either the husband or the fund.

38. The husband points to a series of transactions involving share purchases and sales some in his name, some in the name of the wife and some endorsed as belonging to the superannuation fund.  Tracking the movements of these shares points to the fact that by November 1998 there were 5000 Telstra shares and on 1 February 1999, there was a transfer of 632 of those to the husband and wife leaving 4368.  In April 1999, the husband points to the fact that 2368 of the shares were sold leaving 2000.  The dilemma here is in trying to identify just who owned those shares.  In Annexure VP2 to the husband’s affidavit, he sets out the financial accounts for the fund for the year ended 30 June 1998.  The share and investment portfolio in that document shows that as at that date, there were 2368 shares in Telstra with a purchase date of 25 November 1997.  Annexure VP7 shows that on 25 November 1997 the parties paid for 5000 shares which they had acquired in the month earlier.  In VP4, the accountant’s records shows that the P fund which I inferred stands for the P Plan certainly held 5000 Telstra shares.  The balance sheet for 30 June 1998 predates the transfer of the 632 shares in 1999 and the subsequent transfer of 2368 shares in April 1999.  Notwithstanding all of the other documents including notes from the accountants about which I have some doubts in terms of admissibility, I am unable to be satisfied that as at 30 June 1998, the shares were in fact 2368 rather than 5000.  Just what shares the wife now has is clear but just who owns them is not a matter about which I can make a specific finding.  For the sake of clarity, I see no reason why if there is more eloquent proof, the trustee of the fund should not take recovery action in the future.  Accordingly I decline to make a further order in respect of the specific Telstra shares in the possession of the wife. 

1. The next issue for determination relates to the question of paragraph 15 and 16 of my April orders relating to the wife “forthwith” notifying the real estate agent.  The husband says that the wife did not take that action forthwith and the consequences were that the rental income held by the agent did not go into his bank account and the consequences of that were that there were not sufficient funds in his account for his loan to be paid.

2. In her first affidavit, the wife does not indicate when she told the agent and in her second affidavit, she says she told him orally on or about 5 April 2007.  Her solicitor wrote to the agent towards the end of May 2007.  It is curious as to why it would be necessary for the solicitor to so write if the wife orally advised the agent on or about 5 April.  There is a note on the solicitor’s letter in handwriting tending to suggest that the instructions were then given (that is by the end of May) by the agent to have the rental money banked in the husband’s account.  I have a very uncomfortable feeling about this but I am not prepared to conclude that the wife did not notify the agent on or about 5 April.  She has sworn to that fact and if it turns out not to be the case, obviously consequences will follow.

3. I then turn to the AT loan.

4. Under the orders of April 2007, the wife was to pay the monthly payments to AT after 4 April because the loan balance as at that date was less than $150,000.  The wife did not make the payments and the husband’s account was accordingly debited.  In her response, the wife said she was of the belief that all moneys due to AT would be paid at the settlement between she and the husband.  The settlement was due to take place on 3 July 2007.  She said she did not know in the meantime that the Macquarie Bank account would be deducted by AT.  She then said:

   I did not expect that [AT] would have continued to make deductions from the account.

5. In her second affidavit, the wife said that she intended to repay the AT loan by refinancing the property and she was “not aware” that the husband’s Macquarie Bank account would be deducted with further interest payments. 

6. I find both explanations implausible.  Why AT would wait for three months without receiving a payment, I am not sure.

7. The wife did reimburse the account on 15 June 2007.  However, that was:

   (a)      after the husband’s solicitor’s letter of 31 May;

   (b)after the text message from the husband on 14 June 2007 at 1.50pm reminding her of the fact that she had the obligation; and

   (c)after the husband issued proceedings on 14 June 2007.

8. Counsel for the husband described the wife’s explanations in her affidavit as “nonsense”.  I prefer “implausible”.

9. In respect of the AT loan therefore, notwithstanding that the problem has now been rectified, the husband’s complaint was justified.

10. Turning then to the issues raised by the wife.

11. Issues 1 and 2 in her response document relate to the husband providing documents to her concerning the A house.  In paragraph 10 of the orders of 4 April 2007, each party was required to do all things in relation to the provision of information to enable the calculation of capital gains tax.  The solicitor for the wife wrote two letters to the solicitor for the husband.  They were dated 22 May 2007 and 30 May 2007.  The husband replied that the information concerning the sale of the A house had been provided in 2006.  The solicitor who undertook the conveyancing in respect of the A property was common to both parties.  The wife asserted in paragraph 18 of her affidavit that the husband had “retained” the purchase file.  However in her second affidavit, she acknowledged that she had spoken to the solicitor who said that he had the file.  In any event, why the wife needed the husband to provide the information is not clear.  In my view, nothing arises out of this complaint. 

12. The next issue of relevance is that the wife sought an order that the husband be “accountable” for breaching orders of Bell J on 22 June 2006 and Mushin J on 27 November 2006.  She asserted that those orders said that no further monies were to be borrowed.  That is, that the husband was restrained from so doing.  I am not convinced that the orders of either Bell J or Mushin J say that.  Notwithstanding that, in paragraph 23 of her affidavit, the wife said that “on or about” 4 April 2007, she discovered that her husband had borrowed money from GV and MV and that another caveat had been lodged on the title to the home thereby “breaching court orders”.  She acknowledged that her counsel became aware of this for the first time on 4 April 2007 and it is clear that both parties were aware of the situation because notations 2 and 4 to the orders of 4 April 2007 make it quite clear.

13. Save for perhaps the issue of the husband coming to Court seeking discretionary enforcement remedies with “clean hands”, it is hard to see what the Court is being asked to do.  The wife has not sought to have the Court deal with the husband for breach of the orders under Part XIIIA.  The husband responded in his affidavit to the allegation.  Although it is not abundantly clear, it seems that he borrowed money and understood that he had an assurance that a caveat would not be lodged.  Having regard to the fact that the matter was known to all parties on 4 April and I am not sure that it was a breach of any orders anyway, it is not an issue about which I should take any further action.

14. The wife then seeks a declaration that all monies in excess of the sum of $150,000 being paid by her be deducted from what is due by her to the husband.  Paragraph 6 of the April 2007 orders must be read in conjunction with paragraph 14.  Paragraph 6 says that the husband is responsible for “all sums in excess of the liabilities above the sum of $150,000 liability as at the date of these orders” and paragraph 14 says that the wife is responsible for and must indemnify the husband in respect of the mortgage up to $150,000.

15. I pause here to say that paragraph 6 is inelegantly expressed but its meaning is clear.

16. The wife asserts that she desired to discharge the loan because she did not trust the husband.

17. The husband says that he was not in default nor in breach of the conditions of the loan.  Rather, he says, the additional costs due to AT over and above $150,000 come from the wife’s desire to discharge the loan rather than take it over.  That position is supported by the correspondence from AT.  The wife confirms as I have pointed out, her desire to discharge rather than take over the loan.  That problem then gave rise to the loan exceeding $150,000.

18. The question initially is what does “in excess of the liabilities above the sum of $150,000” liability mean.  When paragraph 6 and paragraph 14 are read in conjunction, it must mean any liability incurred by the husband over and above $150,000 because otherwise the wife could extend the debt and attribute it to the husband.  Equally, the liability only affects the wife up to $150,000.

19. The orders of 4 April 2007 did not discharge earlier orders of Bell J in June 2006.  Bell J’s orders to some extent, conflict with paragraph 15 of the orders of April 2007.  Clearly, Bell J contemplated that any expenses associated with the husband borrowing the money were his responsibility.  Paragraph 14 of my orders make it clear that the wife was taking over the loan and accordingly, the husband would be entitled to walk away from those final orders expecting that there were no further expenses to be incurred.  As I understand the position, AT now wants to charge “establishment fee”.  This is because of the fact that the wife is paying out the loan earlier than it was due to be repaid.

20. This is not a slip that can be rectified by an amendment to the order. Equally, it is not a liability in the sense referred to in the orders of 4 April 2007 because that was referring to the capital debt.  If it could fit within the category of an “expense” or “cost” within the meaning of the orders of Bell J, then by virtue of paragraph 6 and 14 of my orders, it was clear that the wife was taking over full responsibility for those costs by virtue of indemnifying the husband rather than agreeing to discharge the mortgage.

21. In respect of the two paintings, I have already said that I propose to alter the April 2004 orders by clarifying them. In Molier and Van Wyke[7] the Full Court said that after exercising the power under s 79 of the Act, there is no power to vary the order again. The Court has the power to enforce the order and to “modify the machinery provisions” of the order to effect enforcement provided it does not affect the substantive property rights of the parties.

    [7] (1980) FLC 90-911

22. In my view, this is a machinery order rather than something that affects the substantive rights of the parties.  In respect of the paintings, my orders clarify ownership rather than alter it. An ownership dispute was certainly not contemplated by either party on 4 April.

23. In respect of the “establishment fee” required by AT, the April orders are also silent but the payment of the fee is essential to discharge the liability and clarify ownership of the former matrimonial home. That justifies a machinery order.

24. Counsel for the husband said that the sensible solution was to split the “establishment fee”.  Were it not for the indication, I would have found that it is the responsibility of the wife having regard to the position she adopted in the orders of 4 April 2007.  Accordingly, I propose to make an order that the parties each be responsible for half of the establishment fee.

25. The issue then raised by the husband related to costs thrown away after these proceedings were commenced. 

26. The proceedings were filed on 14 June 2007 returnable at 10.00am on 18 June 2007.  I was handed a letter indicating that the application was faxed to the solicitor for the wife at 4.56pm on 14 June.  The wife acknowledges that.  14 June 2007 was a Thursday and the return date was the following Monday.  The wife said that the application was brought to her attention at the end of Friday because of her work commitments in which she was uncontactable.

27. On Monday 18 June 2007, the matter was adjourned to the following morning because the wife was unavailable again on the Monday having had a work commitment. Although I have some concerns about how the wife and her practitioner treated the seriousness of the husband’s application, I accept that she had work obligations and needed the time to prepare responding material. I propose not to impose upon the wife the costs of the husband thrown away on that first day. The hearing on the 5^th July is different.

28. On the morning of 19 June 2007, the matter had to be adjourned to 5 July because the wife had not filed any material and I put in place procedural orders but also orders to produce the paintings for inspection.  To make the order in respect of the paintings, I was sufficiently clear on what the dispute was about in respect of them.  That matter at least was argued that morning. 

29. The procedural orders I made for filing of material included that the wife file by 4.00pm on 26 June.  She was late.  Her material was filed on 28 June 2007.

30. The husband was ordered to file his material by 4.00pm on 3 July 2007.  He was also late.  He filed his material on the afternoon of the following day namely 4 July.  The husband’s affidavit was a comprehensive and voluminous affidavit.  The wife ought to have known that the time frame was tight to respond to anything raised by the husband because of the timetable I fixed at the hearing on 19 June.  The husband’s voluminous affidavit was delivered by courier to the wife’s solicitors on the afternoon of 4 July.  The wife’s solicitor says in an affidavit that it was not brought to his attention until the morning of the return date.  Notwithstanding that, counsel was obviously chasing the affidavit cognisant of the fact that it would be necessary for the hearing.  To do nothing in this case until the morning knowing it was a defended interim hearing, does not appear to me to be prudent.  When the matter commenced before me at 9.00am, I had read the husband’s affidavit but Mr Hammet of counsel had not had that opportunity because his instructor was still bringing it to court.  To compound the problem, the wife had not seen the affidavit.  I had specifically provided for limited time to hear the matter and the consequent delay caused by the affidavit necessitated the matter again being adjourned.

31. I appreciate that the solicitor for the wife may have had administrative problems but the husband incurred costs which were consequently thrown away.  The lateness of the wife’s affidavit did not necessarily cause the delay of the husband but with the weekend intervening the time constraints were clear.  The husband’s affidavit was comprehensive but also contained extensive annexed material responding to the wife’s assertions.  I am told by Mr Mort of counsel that with his instructor away, the midnight oil was burned.  It is hard therefore for me to criticise the husband’s legal practitioners for their 23 hour lateness.

32. The costs thrown away by the adjournment of the proceedings on 4 July 2007 should therefore be borne by the wife but I would not expect her to be personally responsible for them.  I propose to allow counsel for the husband his marked fee for that day and any instructing solicitor for the relatively modest time that the matter was before me.

33. In respect of costs generally, I was urged by Mr Mort to apply the provisions of s 117AB of the Act. I do not believe that I am in a position to do that. I cannot be satisfied that this is a case in which I could determine that the wife has knowingly made a false statement as I have determined the matters on the balance of probabilities.

34. Neither party has been wholly unsuccessful in these proceedings. I do propose to make orders that the parties do brief written submissions on the provisions of s 117 of the Act both as to the question of whether an order should be made and if so, canvassing the issues set out in s 117.

35. Accordingly I propose to make orders.

I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 August 2007