Pourdis and Pourdis and Ors

[2013] FamCA 53

FAMILY COURT OF AUSTRALIA

POURDIS & POURDIS AND ORS [2013] FamCA 53

FAMILY LAW - COSTS – application for costs by the interveners – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – where it was not just and equitable to make an order requiring only the wife to pay the costs – orders that the husband and wife pay the interveners’ costs of and incidental to the application.

Family Law Act 1975 (Cth) s 117.

APPLICANT: Ms Pourdis

RESPONDENT: Mr Pourdis

INTERVENERS: Bank of Queensland and Receivers and Managers

FILE NUMBER: DNC 552 of 2010

DATE DELIVERED: 22 January 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 22 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bowen

SOLICITOR FOR THE RESPONDENT: Bowen Lawyers, Barristers & Solicitors

COUNSEL FOR THE INTERVENERS: Mr Looney

SOLICITOR FOR THE INTERVENERS: Minter Ellison Lawyers

Orders

1. The costs of the third party Interveners of and incidental to the proceedings to set aside the Order of 26 September 2012 be borne jointly by the husband and wife on the understanding that the costs so incurred can be subject to further orders on final property settlement being concluded.

BY CONSENT IT IS FURTHER ORDERED THAT

1. The order of 26 September 2012 is discharged UPON NOTING the transfer referred to therein has been delivered up to the Applicant third party Interveners.

1. Certify fit for senior counsel.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 552 OF 2010

Ms Pourdis

Applicant

And

Mr Pourdis

Respondent

And

Bank of Queensland and Receivers and Managers

Interveners

EX-TEMPORE REASONS FOR JUDGMENT

1. Moments ago, I made an order by consent discharging the order of the Court which was made on 26 September 2012. The issue which now remains to be determined is the application on behalf of the interveners for costs of and incidental to the application to this Court to discharge the order. The provisions of Section 117 of the Family Law Act 1975 (Cth) (“the Act”) make it clear that each party is to bear their own costs save and except when the Court finds that it is otherwise just and equitable to make an order for costs.

2. The provisions of section 117 of the Act set out the matters for consideration. What is significant in this matter is the factor that the third parties have been wholly successful in obtaining an order and that the order has been made by consent.

3. The other factors that need to be taken into account in relation to this matter which are significant are the financial circumstances of each of the parties and the background to the orders which were made.  As can be seen from reference to the transcript of the hearing on 26 September 2012, the order was made by consent of both the husband and wife in consideration of submissions being made to the Court concerning the admitted contempt and contravention of Court orders by the husband.  The orders were made after considerable encouragement by myself as the judicial officer hearing the submissions being made in relation to the question of the admitted contempt and contravention of the husband of previous orders of this Court.

4. The question now arises as to how the costs of the interveners should be paid.  There is no doubt that the interveners, being wholly successful in their application, are entitled to an order for costs.  That is not in dispute.  What is in dispute is whether the costs should be paid by the wife alone or whether the costs should be paid by both the husband and the wife.

5. The wife seeks an order that both parties pay the costs.  The husband opposes any order which provides for him to pay any portion of the costs on the basis that by letter of 14 December 2012, the husband’s solicitors indicated to the interveners’ solicitors that they did consent to the interveners bringing an application to the Court.  It could be interpreted that they also consented to the orders sought, but that is not clear.  Subsequently, by a very recent letter sent after inquiry by the intervener’s solicitors, it was conceded by the husband that he would not oppose the orders sought by the interveners setting aside the order of 26 September 2012.

6. The significant factor is that the consent order was made with the encouragement of the Court.  However, the Court was not then reminded that there was in existence an order which required the husband and wife to give the Bank of Queensland three days’ notice of any orders sought other than orders sought in relation to parenting orders.  That previous order, made in September 2011, had not been complied with by either the husband or the wife.  The clear lack of procedural fairness would be a significant basis upon which the Court would have set aside the order had the parties not consented to the making of the order.

7. Therefore, I am not satisfied, that in all of the circumstances, and taking into account the background of the orders made on 26 September 2012 (in relation to the hearing of the part heard property settlement proceedings and the contempt and contravention proceedings) that it is just and equitable to make an order which requires only the wife to pay those costs.  Having heard all of the evidence which is yet to be determined in relation to final property settlement proceedings, the Court will then be in a position to adjust the amounts paid by the parties by way of costs in relation to these proceedings and other interim proceedings when making final orders.  The husband and wife will be in a position to make further submissions in that regard. 

8. Therefore, taking into account the provisions of section 117 of the Act and the history of the matter, particularly that it was a consent order of both the husband and wife and that neither of the husband and wife had given notice as required by the earlier Court order to the Bank of Queensland, I make an interim order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 January 2013.

Associate:

Date:  8 February 2013