Pera & Pera (No. 2)

[2007] FamCA 1209

FAMILY COURT OF AUSTRALIA

PERA & PERA (NO. 2) [2007] FamCA 1209

FAMILY LAW – COSTS – Section 117(2A)

Family Law Act 1975 (Cth)

APPLICANT: Mr Pera

RESPONDENT: Mrs Pera

FILE NUMBER: MLF 6059 of 2003

DATE DELIVERED: 28 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: By way of written submissions

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Nedovic & Co

COUNSEL FOR THE RESPONDENT: Mr Hammet

SOLICITOR FOR THE RESPONDENT: Oakfair Lawyers

Orders

1. That the wife make a contribution towards the costs of the husband in the sum of $6632.

2. That the said costs be paid by 4.00pm on 31 October 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6059 of 2003

MR PERA

Applicant

And

MRS PERA  

Respondent

REASONS FOR COSTS JUDGMENT

1. On 4 April 2007, I made final orders between the parties in respect of the division of their property.  The parties presented minutes and indicated that the orders were sought by their joint consent. 

2. Not long later, disputes arose between the parties as to the compliance by each other of those orders.  On 3 August 2007, I delivered reasons for judgment and made orders in respect of the applications by each party for enforcement of the orders of 4 April 2007. 

3. In my orders, I made provision for the parties to provide written submission in relation to the question of any costs arising out of that hearing.

4. The husband filed a submission as to costs which was drawn by his counsel.  That submission was dated 15 August 2007 and sought costs for a variety of appearances as well as the preparation of documents by counsel.  The husband also sought a limited amount of costs for the attendance by his solicitor.

5. By written submission dated 24 August 2007, signed by counsel for the wife, 19 pages were received.  Apart from disputing the entitlement of the husband to an order for costs, counsel for the wife indicated that the husband should pay the wife’s costs for the preparation of the submissions in the total sum of $5357.40.

6. The enforcement dispute was about a whole raft of issues.  They included the entitlement and ownership of the respective parties to two paintings, some Telstra shares, the compliance by each party with the orders of April 2007, the costs thrown away as a result of the matter having to be adjourned as well as issues between the parties which either did not proceed or were otherwise resolved.

7. In my reasons for making orders, I indicated that there were some matters about which I was quite satisfied but others not.  I did make a finding that in respect of the wife’s responsibilities under the order in respect of an AT Limited loan, the husband’s complaint was justified.  In respect of another matter in relation to a dispute about who should pay an establishment fee for a mortgagee, the husband had adopted a sensible solution.  However, at paragraph 72 of my reasons for judgment, I indicated that neither party had been wholly unsuccessful in the proceedings.

8. The husband’s submission was that the wife’s conduct in the enforcement proceedings was that she had acted in a “passive frustrating manner” at the husband’s expense.  He argued that it was only the husband who attempted any measure of conciliation and that the wife and her practitioner did not treat the husband’s application seriously.

9. The wife’s position was that there should be no order for costs.  As I have indicated, the submission in relation to costs ran to 19 pages.  Of those pages, a number of matters (see for example paragraph 2.2(a) – (n) as well as some of the sub-paragraphs thereafter, parts of paragraph 3.2 and in particular (g), (i), (j) and (p), paragraph 6.1, 6.4, 6.5, 6.6 and 6.10) all seem to be matters more related to the question of disputing the decision rather than addressing the issue of costs.  The matters to some extent addressed the issue of conduct which is a matter to which I shall turn in relation to s 117(2A).

10. The nub of the wife’s cost submission as I perceive it is that she had “an arguable case” and as a result of that, the provisions of s 117 should be strictly applied and each party pay their own costs.

11. In paragraphs 3.4 to 3.7 of the wife’s submissions, her counsel dealt with the provisions of s 117(2A).  I shall turn to those below.  There were also references in paragraph 4.1 and 4.2 to the quantum of costs and with those issues I agree.

12. The proceedings before me were adjourned and as part of my order, I have required the wife to contribute to the costs thrown away on 5 July 2007.  As a result, that issue has nothing to do with this judgment.

13. I am looking specifically in this judgment at the fact that the proceedings had to be issued for the purposes of enforcement by either party of the orders of April 2007.

14. These were proceedings that could have been and should have been dealt with on a summary basis because they were enforcement proceedings.  Of necessity from a resource point of view, the Court has an entitlement as well as an obligation to truncate such enforcement proceedings.  Parties seeking orders should have come to such a proceeding ready to proceed.  In respect of the adjourned dates I have set out in my judgment some of the concerns that I had about the readiness of the parties and in particular, the wife to proceed.

15. In respect of the issue of costs, s 117 says:

    (1)      Subject to subsection (2), subsection 70NFB (1) and sections 117AA, 117AB, 117AC and 118, 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) and (5) 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.

16. The starting point therefore is that each party should pay their own costs unless the Court is of opinion that there are circumstances that justify the making of a costs order and departing from that provision.  In this case, particularly having regard to the fact that the parties were disputing their obligations under the order and each required the intervention of the Court, the question that is relevant is whether or not it was reasonable for each party to adopt the position that they did in either refusing to compromise and/or then seeking the intervention of the Court.  Having regard to the various findings that I made in my reasons for judgment, I find that it was reasonable for the husband to seek the intervention of the Court.

17. Before an order for costs however can be made, the Court must examine the provisions of s 117(2A) which says:

    (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.

18. Notwithstanding the respective submissions of the parties, I am satisfied that each of them had reasonable assets and resources.  Whilst the husband complained that he desperately needed capital and that the wife not only had that capital but also had income from overseas, it is sufficient for my purposes to take into account that each of them was reasonably comfortable for the purposes of determining whether each can afford to make a contribution towards the costs of the other.  In this case, I have the information from the original orders made in April 2007 and the indication by each party to me when the orders were made that the orders were just and equitable, and in those circumstances, I have little hesitation in saying that each party has reasonable financial circumstances for the purposes of making an order for costs.

19. I am advised that neither party was in receipt of assistance by way of a legal aid grant.

20. In respect of the conduct of the parties to the proceedings, I have expressed concern in my reasons for substantive judgment about the fact that the wife did not take the husband’s application seriously and to some extent that necessitated an adjournment.  All parties were aware that I was to deal with the matter early in the morning to enable not only the Court’s resources to be adequately used for defended matters from 10.00am but also to enable the parties’ lawyers to retain as well as to be involved in other matters should they so choose.  Section 117(2A)(c) talks of the conduct of the parties in a general way.  I am quite satisfied that in this case the wife and her practitioner did not make the concerted effort that I would have otherwise expected in what was a serious enforcement application.

21. Section 117(2A)(d) requires a court to consider whether the proceedings were necessitated by the failure of a party to comply with the orders.  Having regard to the findings that I have made in the substantive proceedings, it is clear that the wife did not comply with the orders of April 2007. 

22. I have taken into account the fact that neither party has been wholly unsuccessful but there is little doubt as a result of my findings that the husband was more successful than the wife.

23. In respect of offers in writing, I understand that neither party made any such offers and there would appear to have been little if any negotiations between the parties at all.

24. In the circumstances, taking into account all of the matters in s 117(2A), I am satisfied that it is appropriate to make an order for costs against the wife in favour of the husband.  It goes without saying that I reject the suggestion of counsel for the wife that the husband should make a contribution towards the wife’s costs of the preparation of the submission.  If nothing else, as I have pointed out, much of the submission related to matters that seemed to me to be unrelated to the issue of costs. 

25. Counsel for the husband sought his fees and as I have indicated I have made an order in respect of the fees thrown away on 5 July 2007.

26. I find that it is appropriate that the wife make a contribution towards the fees incurred by the husband for counsel on 19 June 2007 and 31 July 2007.  Counsel also sought expenses incurred by the husband wherein counsel drew documentation.  It was made quite clear to me in the hearing that having regard to the position adopted by the wife, a comprehensive affidavit by the husband was required and that the husband’s solicitor was away overseas and as a result, the task was to fall to counsel.

27. In respect of the quantum of the fees for the appearances, the Family Law Rules set out a scale.  I find that the proceedings were a summary if not truncated hearing and therefore the scale of $198 to $928 applies.  I propose to allow $750 on each of the two occasions to which I have referred.  In respect of the paperwork however, the scale is $221 to $316 per hour.  Counsel sought a total of $2750.  It is suggested that the total work was about nine hours.  It is interesting that counsel for the wife in his submission in relation to the costs sought by the wife suggested that the written submission should take 12 hours at $350 per hour.  That gives me some comfort that the fees sought by counsel for the husband are not only appropriate but also reasonable.  In the circumstances, I propose to allow $1650 for the drawing of the affidavit, the application and the conference and $1100 for the drawing of the costs submission. 

28. In respect of the attendance by the solicitor for the husband at court, he has clearly charged $425 per hour whereas the scale provides $192.90 per hour.  I agree with counsel for the wife that unless there is a good reason otherwise, the fees of the solicitor should (like counsel) be drawn on scale and accordingly, I propose to allow 2.5 hours at $192.90 in total.  I am satisfied that that is a reasonable sum.

29. The husband also seeks a total of $1500 for the costs associated with the preparation of the application to go before the court, including obtaining instructions.  I see no reason why the scale ought not be applied in respect of that sum and although there was no specific breakdown of the sum sought by the submission from the husband, I propose to exercise my discretion and calculate that on the basis of four hours of instructions, briefing and conferences with counsel and the preparation of documents, including photocopying, the sum based on the scale would amount to about $900.  I propose to make that order.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  28 September 2007