Peters and Maric

[2011] FamCA 465

FAMILY COURT OF AUSTRALIA

PETERS & MARIC [2011] FamCA 465

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Peters

RESPONDENT: Mr Maric

FILE NUMBER: MLC 11529 of 2009

DATE DELIVERED: 21 March 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Staindl

SOLICITORS FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Mr Indovino

SOLICITOR FOR THE RESPONDENT: A Agrotis & Associates

Orders

1. That the respondent pay to the applicant interest of $1265.66 and $1839.12, a total of $3104.78 within 14 days.

2. That the respondent pay the applicant’s costs from 9 August 2010 up to and including 14 March 2011, such costs to be on scale fixed by the Registrar on an assessment in default of agreement between the parties.

3. That the respondent pay the applicant’s costs from 15 March 2011 on an indemnity basis it being noted that it was reasonable for the applicant to engage counsel and to have an instructing solicitor present for the hearing.  These costs are not to include the costs of the preparation of the application filed 15 March 2011 and the accompanying affidavit.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the application in a case filed 15 March 2011 is otherwise dismissed.

3. That the reasons be transcribed and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11529 of 2009

Ms Peters

Applicant

And

Mr Maric

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Peters for interest and costs against Mr Maric. I will refer to Ms Peters as the applicant and Mr Maric as the respondent. The dispute arises out of an order made in this Court on 30 July last year. It is important to note that the order was made by consent of the parties and arose out of proceedings under section 90RD of the Family Law Act 1975 (Cth) (“the Act”).

2. The proceeding related to whether or not the parties were in a de facto relationship.  The parties obviously agreed that they were for the purposes of the order made on 30 July. 

3. The order made two significant provisions.  The first was that the respondent was to pay the applicant $300,000 within 90 days and second, a further payment of $250,000 within 210 days.

4. It is common ground between the parties that the first payment was not made on time.  It is also clear that what Mr Maric was endeavouring to do was to extend the time for payment.  The applicant forwent the opportunity to rely on a particular provision in the order that said that in the event that the respondent failed to make the payments then a particular property was to be sold.  If it was to be sold, she was not only to get her interest but presumably any costs associated with the sale.  What has now occurred is that on 15 March after considerable correspondence between the parties, an application was issued seeking to enforce the orders. 

5. Subsequent to the issuing of those proceedings, a further compromise occurred and the respondent has now paid all of the capital sums due together with the sum of $2330 this day effectively paying that sum into court for the purposes of covering the interest that he determined was due under the various payments. 

6. I am satisfied that the interest payment made into court today does not cover the totality of the interest that would have been due having regard to the obligations under the order.  I am also satisfied that the order is clear in its terms and as such the rules that flow from the provisions in the Family Law Act apply and as such the correct amounts of interest sought by the applicant is that as claimed by her and therefore the respondent owes her a further sum of $1265.66 in respect of the first payment and a payment of $1939.12 due today in respect of the second payment.  I propose to make an order that the respondent pay those sums. 

7. The more vexed question is the question of costs.  The applicant says that she incurred costs pursuant to a cost agreement with her lawyers.  She claims under the bill that she has received $7410.35 was due and payable by her to her lawyers on 16 March which I note was the day after the proceedings were issued.  A further $1300 was incurred by her through the activities of her lawyer between 16 March and today.  A further sum of $2500 has been billed for her counsel’s attendance today and a further $900 for his instructor being here.  The bill now well and truly exceeds the sum of $10,000.

8. Section 117 of the Act provides that each party shall bear their own costs subject to the provisions of section 117 subsection 2 which enables the Court to depart from that principle in circumstances where the Court is satisfied that there are justifications for so doing. One of the obvious reasons for the Court being satisfied that there is a justification is where it makes an order and someone fails to fulfil their obligations. Reading the correspondence in this case, it is clear that the respondent effectively gave the applicant no choice other than to enforce her order and she chose not to do that.

9. The respondent in three letters referred to the fact that he was having problems getting the money necessary to satisfy the obligations under the order accusing the applicant of having breached a notation.  No evidence has been tendered to that effect although I understand there is some correspondence between the parties.  I do not intend to take that into account. 

10. Costs are a discretionary matter but in this case, it is difficult for me to know precisely what sort of costs would be incurred by the applicant having regard to the fact that I propose to make two different sorts of order.

11. The first order I propose to make relates to the scale and I will set the period as 9 August 2010 up until the day of the issuing of the proceedings on 15 March.  On that day, 15 March, the applicant was well and truly entitled in my view to issue the proceedings.  From that moment onwards, the respondent not having complied with the orders should in this case be responsible for the applicant’s costs on an indemnity basis.  The period, however, from 9 August until 14 March 2011, I propose to fix on the scale.  As I said, it is difficult to know exactly what costs were reasonable in that first period so I propose in those circumstances to order that if the parties do not reach agreement about it, then they will have to have the matter assessed by the registrar.

12. The second period relating to the indemnity costs is not so difficult because it is for a discrete period.  That period, however, would not on what I have just said encompass the preparation of the documents.  I see no reason in this case why the preparation of the documents that were filed on 15 March should be included in the indemnity costs order. 

13. Section 117, however, also provides that a court should not make an order for costs even if there are justifying circumstances without considering the provisions of section 117(2A). In this case, I am told that apart from the amount of money that the applicant is receiving under the orders of July, she has no other major assets whereas it is asserted that the respondent has significant assets.

14. I am not in a position to make any findings about that but I am satisfied that in the circumstances neither of the parties is impecunious.  I am also obliged to take into account the questions of the conduct of the parties in relation to the compliance with orders and as I have already said, I am satisfied that the respondent was somewhat cavalier in his approach in laying down the gauntlet for the applicant.  I have also taken into account that there has been no suggestion that either party is eligible for legal aid in this case.  That then leaves the question of whether or not one or other of the parties has been wholly unsuccessful.

15. It seems to me that whilst that is a consideration, it is not the only consideration and I am satisfied that had it not been for the applicant issuing the proceedings on 15 March 2011, there may very well have been a continuing stalemate. In those circumstances it seems not only is there a justification for making an order for costs but the provisions of section 117(2A) justify in me making the orders to which I have earlier referred. In those circumstances, I will ask counsel to draw some minutes setting out the two discrete periods. I will certify that counsel and an instructor is reasonable in the circumstances at $900 for today.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 March 2011.

Associate: 

Date:  15 June 2011