Preiss & Preiss (No 4) - [2018] FamCA 1050

FAMILY COURT OF AUSTRALIA

PREISS & PREISS (NO. 4)

[2018] FamCA 1050

FAMILY LAW – COSTS – where the husband indicates by substantive application that he intends to bring an application under section 79A of the Family Law Act 1975 (Cth) to set aside property orders and the wife brings an interlocutory application for summary dismissal – where the husband seeks an adjournment of the summary dismissal application which is refused but he was given an opportunity to file written submissions in defence of his position – where the husband fails to file written submissions and the judgment dismissing his application for substantive relief is made – costs order made – where the wife seeks indemnity costs – where the circumstances do not justify a departure from the usual rule.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Preiss & Preiss (No. 3) [2018] FamCA 945

APPLICANT:

Ms Preiss

RESPONDENT:

Mr Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

11 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

SOLICITOR FOR THE RESPONDENT:

Go To Court Law

Orders

The husband pay the wife’s costs associated with the application for summary dismissal as and from 5 October 2018 by agreement, and in default of agreement, as assessed.
That the respective applications by way of written submission filed on 30 November and 7 December 2018 are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Preiss & Preiss (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10148 of 2014

Ms Preiss

Applicant

And

Mr Preiss

Respondent

REASONS FOR JUDGMENT

By written submission filed 30 November 2018, Ms Preiss (“the wife”) seeks an order for costs against Mr Preiss (“the husband”) as a result of both the orders made on 20 November 2018[1] and the husband’s decision not to proceed with an application under s 79A of the Family Law Act 1975 (Cth) (“the Act”).
[1] [2018] FamCA 945
The husband opposes any order for costs being made, but in the event that such an order is made, it is submitted that it should be on a party and party basis from 5 October 2018; being the day upon which the husband was to file his amended application.
It is trite to say that in proceedings under the Act, s 117 of the Act provides that each party shall bear their own costs unless there are circumstances to justify a departure from that principle and in specific circumstances otherwise that are not relevant here.
The wife’s application for costs is said to be from and including 5 October 2018.
The wife’s submission is that the husband had indicated an intention to apply under s 79A of the Act (“the s 79A application”) to set aside or vary property orders at a time when the application before the Court was for enforcement of the final property orders made on 18 January 2017. The confusing nature of his position before the Court necessitated an adjournment on two occasions, but it is not those adjournments that are relevant for the calculation of any costs because orders were made that the husband pay the wife’s costs in respect of those discrete hearings.
The substance of the wife’s present application is that she has attended hearings and had her costs thrown away thereafter on the basis that she had to focus on the potential for defending husband’s application to the detriment of her own application for enforcement of the orders and judgment that she received.
The submission of the wife was that at the hearing on 2 November 2018, the husband attended for the first time in the proceedings represented by counsel. That day had been fixed for the wife’s application for summary dismissal of his putative s 79A application. Counsel sought an adjournment which was refused on the basis that the difficulty that the husband faced could be overcome by written submissions. Accordingly, the order provided for the husband to file written submissions by 16 November 2018. The wife’s application proceeded that day and oral submissions were made. Thus, the only thing required thereafter was the written submissions by the husband and the determination by the Court.
The husband did not file any written submissions. However, immediately prior to the hearing on 20 November 2018, the solicitors for the husband advised that he did not intend to file such submissions. The approach taken by the husband still necessitated the determination of the Court.
In a written submission filed on behalf of the husband, the solicitors for him apologise to the Court for not advising the Court “in a more appropriate manner” of the husband’s intention not to prosecute the application. Costs applications are not relevant in relation to any inconvenience to the Court, but there is no doubt that the hearing on 5 November 2018 put the wife to considerable and unnecessary expense in circumstances where the husband applied for an adjournment and then indicated that he was intending not only to proceed with his application under s 79A of the Act, but also to defend the wife’s summary dismissal application.
As earlier observed, s 117 of the Act provides that the Court must have a justifying circumstance first to depart from the principle set out therein. Having regard to the time spent by the wife with her lawyers and the costs she incurred being wasted, there are justifiable circumstances here.
Before the Court can make an order for costs however, it must contemplate the matters set out in s 117(2A) of the Act.
It was submitted on behalf of the wife that the husband has the benefit of a property in Israel and makes no reference to any rental therefrom. She submitted that it was relevant that the husband had refused to provide details about that property. It was further submitted that the Court had previously found that neither party could be considered impecunious, although the wife had not received access to the funds to which she was entitled. She also submitted that the Court should refer to the previous determination about costs in which it was noted that the husband had the control of all of the assets subsequent to the orders for property division being made on 18 January 2017. In respect of earning capacity, it was submitted that the wife had only recently commenced employment. I take all of those into account.
The most important question arising from s 117(2A) of the Act (although all matters are relevant) relates to the conduct of the proceedings. It was submitted on behalf of the wife that the husband had obfuscated, that she had been required to brief lawyers and was required to answer an argument in advance of it being put to the Court when the submission supporting the application under s 79A of the Act had not been prepared and ultimately, failed to materialise. I accept that those are matters relevant to the issue of the conduct as a litigant.
It was submitted on behalf of the husband that all of the matters prior to 5 October were not relevant because they had been the subject of previous costs orders. I reject that submission. The matters prior to 5 October set the scene for what happened on 5 October 2018 and more particularly, what occurred in November. The wife does not seek costs from those earlier periods, and nor could she, but they are certainly circumstances that justify a departure from the principle here.
If indeed the husband never intended to pursue the s 79A application, bearing in mind that he was represented at the hearing on 5 November 2018, much angst and expense by the wife could have been avoided.
In my view there is a sufficient basis here to make an order for costs against the husband.
I take into account that there are no legal aid considerations here and no offers of settlement.
The wife sought her costs on an indemnity basis, but no copy of the costs agreement was tendered to the Court as required by the Family Law Rules 2004 (Cth). In any event, in my view, the circumstances are not exceptional here, notwithstanding they are most unusual and quite frustrating not only for the wife, but also for the Court.
In this case therefore, an order for costs should be made as and from 5 October 2018 by agreement and failing agreement as assessed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 December 2018.

Acting Associate:

Date: 11 December 2018