Rajavade & Rajavade (No 3)

[2023] FedCFamC1F 175

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rajavade & Rajavade (No 3) [2023] FedCFamC1F 175   

File numbers

PAC 2172 of 2022 and PAC 1041 of 2019

Judgment of

WILSON J

Date of judgment

22 March 2023

Catchwords

FAMILY LAW – NATIONAL ARBIRTATION LIST – COSTS – solicitor failed to inform the court or the wife’s solicitor that the husband was declared bankrupt prior to debate about s 13J – further hearing ordered.   

Legislation

Family Law Act 1975 (Cth) s 106A

Cases cited

Rajavade & Rajavade [2023] FedCFamC1F 32

Rajavade & Rajavade (No 2) [2023] FedCFamC1F 39

Division

Division 1 First Instance

Number of paragraphs

8

Date of last submission

10 March 2023

Date of hearing

On the papers

Place

Melbourne

Solicitor for the applicant

Huk Legal Services Pty Ltd

Solicitor for the respondent

Harish Prasad & Associates

ORDERS

PAC 2172 of 2022 and PAC 1041 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR RAJAVADE

Applicant

AND

MS RAJAVADE

Respondent

order made by	WILSON J
DATE OF ORDER	22 March 2023

THE COURT ORDERS THAT –

1.The further hearing of this proceeding is adjourned to 10:00am on 24 March 2023 for mention in the National Arbitration List.

2.The wife’s solicitor must notify the trustee-in-bankruptcy that the trustee-in-bankruptcy is required to appear at the mention fixed for 10:00am on 24 March 2023.

3.Even if the husband’s solicitors’ retainer has come to an end, Mr B must appear at the mention fixed for 10:00am on 24 March 2023.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

WILSON J

1. Since my reasons[1] the wife has applied for her costs to be paid on an indemnity basis by the husband’s solicitors. 

   [1] [2023] FedCFamC1F 32 and [2023] FedCFamC1F 39.

2. The application is founded on two notions.  The first related to the husband’s solicitors’ failure to inform the court or the wife’s solicitors that the husband had been declared bankrupt in late 2022, well prior to judgment but subsequent to the hearings on 22 August and 5 October 2022 and possibly prior to the hearing on 17 November 2022.  The second basis for seeking indemnity costs against the husband’s solicitors was that all grounds of review failed and were doomed to fail in any event. 

3. In her affidavit made 23 February 2023, the wife deposed that the trustee-in-bankruptcy has lodged a caveat against the title to the relevant property the subject of the s 106A order made on 7 February 2023.

4. The information about the husband’s status as an undischarged bankrupt was not made known to me at any stage prior to the wife’s 23 February affidavit. 

5. Whether the husband’s solicitors were aware of the husband’s status as a bankrupt prior to the appearance on 17 November 2022 is unknown.  Whether the husband’s solicitors were duty bound to bring that to my attention if so aware raises legal issues in respect of which I need to hear from Mr B.

6. There is undoubted jurisdiction in the court to make a costs order against a legal representative of a party.  Whether I should do so is necessarily dependent upon ascertaining all relevant facts. 

7. The trustee-in-bankruptcy will need to be heard. 

8. This case will be fixed for mention on Friday 24 March 2023 for a discussion about the issues raised herein.  I require the wife’s solicitor to notify the trustee-in-bankruptcy of that mention.  Even if the husband’s solicitors’ retainer has come to an end, I require Mr B to appear on that day. 

I certify that the preceding eight numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson.

Associate:

Dated:       22 March 2023