Pourdis and Pourdis (No 2)

[2012] FamCA 153

FAMILY COURT OF AUSTRALIA

POURDIS & POURDIS (NO 2) [2012] FamCA 153

FAMILY LAW - COSTS – application by the wife seeking costs against the husband – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – where the application was necessitated by the husband’s failure to agree on matters– where the Court considered the financial circumstances of the parties – where the circumstances justify the making of a costs order – orders that the husband pay the wife’s costs.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Pourdis

RESPONDENT: Mr Pourdis

INDEPENDENT CHILDREN’S LAWYER: Northern Territory Legal Commission

FILE NUMBER: DNC 552 of 2010

DATE DELIVERED: 12 March 2012

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 12 March 2012

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

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Palavra

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Northern Territory Legal Aid Commission

Orders

UPON NOTING

1. Dr Y to give his evidence by video or telephone link as agreed between the parties and that Dr Y’s report will not be released until Tuesday 13 March 2012.

2. The Independent Children’s Lawyer is at liberty to file a case outline provided it is filed and served by 4.00 pm on Tuesday 20 March 2012.

IT IS ORDERED THAT

1. The matter is listed for trial to commence not before Wednesday 21 March 2012 at 10.00 am before the Honourable Justice Dawe for five [5] days.

2. By 4.00 pm on Friday 16 March 2012 the wife and husband to file and serve (including serving the Independent Children’s Lawyer) specific orders sought in relation to all children’s issues.

3. By 4.00 pm on Tuesday 20 March 2012 the husband and wife to file and serve their case outlines including specific orders sought in relation to financial matters and the basis upon which those orders are sought, including a list of assets, liabilities, financial resources and any add backs with appropriate amounts and basis of those calculations.

4. Pursuant to Rule 15.46 of the Family Law Rules, M Valuers be appointed as a single expert on 15 February 2011 undertake updated valuations for the following properties:

   4.1… S Street, Suburb W;

   4.2… O Street, Suburb B;

   4.3… K Street, Darwin;  and

   4.4… F Street, Suburb B.

1. The draft letter of instruction attached to the application be settled by the Court and be the joint letter of instruction to M Valuers as the single expert.

2. That the costs of both valuations be met by the husband and wife being given permission to obtain a loan from P Pty Ltd to meet the costs of the real estate valuation and plant and equipment valuation (being the cost met at first instance) with the Court to determine the final payment of costs of those valuations at the final hearing of the matter.

3. The husband pay the wife’s costs of and incidental to the wife’s Application in a Case filed on 1 March 2012 such costs to be agreed within twenty-one [21] days and failing agreement as determined by the Court.

BY CONSENT IT IS FURTHER ORDERED

1. Pursuant to Rule 15.44 of the Family Law Rules the parties jointly instruct Z Valuers as the single expert to undertake a valuation of the plant and equipment of P Pty Ltd as trustee for Family Trust 1.

2. The draft letter of instruction attached to the application be forwarded to Z Valuers as the recipient rather than LL Business.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pourdis & Pourdis (No 2) 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

EX-TEMPORE REASONS FOR JUDGMENT

1. I have now made orders in relation to the wife’s Application in a Case filed on 1 March 2012.  As part of that application the wife’s solicitors filed the affidavit on 1 March 2012 to which is annexed the correspondence between the parties’ solicitors with a view to arranging updated valuations of the real estate and valuations in relation to plant and equipment.  That affidavit deals with correspondence passing between the solicitors up until 29 February 2012 or thereabouts.

2. I am informed that the husband was served with the Application in a Case on 1 March 2012.  There is no affidavit material or response filed by the husband in the proceedings in response to the Application in a Case, which was listed for 12 March 2012 at 9.30 am before me.

3. I have heard the submissions on behalf of the wife and the husband and interrupting those submissions have obtained from the parties Consent Orders which overcome the difficulties created by the parties’ failure to reach agreement in relation to these matters.

4. Section 117 provides that each party shall bear their own costs unless the Court considers it to be otherwise just, taking into account the factors in section 117(2) and (2A). The significant factors in relation to this application for costs are the financial circumstances of the parties; the conduct of the parties and whether any party has been wholly unsuccessful.

5. In relation to this matter the significant factors are the factors in relation to the financial circumstances of the parties and the correspondence which indicated the attempt to agree matters before the proceedings were instituted, the failure of those attempts and, therefore, the necessity to bring the Application in a Case.

6. Having taken into account, in particular, the substantial difference in the parties’ financial circumstances and the background which brought about the Application in a Case as a necessary application, the fact that the husband in response has filed no responding material, I am satisfied that it is in all the circumstances just that there be an order that the husband pay the wife’s costs of and incidental to the Application in a Case filed on 1 March 2012, such costs to be agreed within 21 days and failing agreement as determined by the Court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 March 2012.

Associate: 

Date:  20 March 2012