Perpetual Ltd and Bourke and Ors

[2010] FamCA 956

FAMILY COURT OF AUSTRALIA

PERPETUAL LTD & BOURKE AND ORS [2010] FamCA 956

FAMILY LAW – PROPERTY – Mortgagee sale – Costs

APPLICANT: Perpetual Ltd

RESPONDENTS:

Mrs Bourke

Mr Bourke

S Company

FILE NUMBER: MLC 9120 of 2010

DATE DELIVERED: 4 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Kovacs

SOLICITOR FOR THE APPLICANT: HWL Ebsworth Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr McGindle

Orders

BY CONSENT IT IS ORDERED

1. That Perpetual Ltd (ACN 000 431 827) have leave to intervene in the proceedings.

1. That pursuant to s. 79A(1)(a) and (1)(b) Family Law Act paragraphs 1 to 6 of the Orders made on 17 March 2010 shall be set aside and the following Orders be made in their place:

1. The Husband, the Wife and the Third Party forthwith do all acts and things and sign all documents required to facilitate the settlement of the sale of the land situated at W being the land in Certificate of Title Volume … Folio … (“the property”) by the intervener.

1. The Wife forthwith at her expense provide a withdrawal of any and all caveats registered by her on the title to the said property.

1. That all costs, commissions and expenses of the sale and any outgoings of the property and any and all entitlements of the intervener including the intervener’s principal debt, interest, mortgage discharge fees and enforcement costs be paid from the proceeds of sale.

BY THE COURT IT IS ORDERED

1. That there be no Order as to costs.

1. That the Intervener’s application filed 29 September 2010 shall be and is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: No. MLC 9120 of 2010

PERPETUAL LTD

Applicant

And

MRS BOURKE
MR BOURKE
S COMPANY

Respondents

REASONS FOR JUDGMENT

1. Costs are a discretionary matter under section 117 of the Family Law Act, and the situation in this case, for me, is sufficiently straight-forward to say that I do not propose ordering costs against the respondent wife.  It is clear to me that there were discussions between the would-be interveners’ legal representatives and the wife’s legal representatives.  All those discussions were predicated on a surplus of funds being available after settlement and after the intervener had been paid out moneys owing to it.  It was reasonable that the wife’s legal representative was discussing what should happen with that surplus, given what had gone before, which was a court order for the wife to receive this property free of any encumbrance, to effectively receive a property worth $230,000.

2. It was only after the wife’s solicitor had advised the intervener’s solicitor that he would be overseas until 30 September, that on 28 September (while he was in fact overseas) he was advising that there was, in fact, no surplus.  And the very next day, the intervener commenced these proceedings.  I adjourned them on the day they were brought before me because it was apparent that service had not been properly effected.  It was effected last night, an order by consent has been arrived at this morning, and applying my discretion, taking into account the equity of the situation and the fact that the wife does not have the financial resources to pay the intervener’s costs, I do not propose ordering any costs.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  4 October 2010