Reece and Gilmore

[2018] FamCA 325

FAMILY COURT OF AUSTRALIA

REECE & GILMORE [2018] FamCA 325

FAMILY LAW – COSTS – Application before the Court resolved by consent of the parties – Remaining matter for determination is costs – Costs ordered against the wife – Wife indicated refusal to pay the single expert valuer or allow him access to the property – Poor financial circumstances not an immunity against costs order – Costs of the husband fixed at lower amount – not necessary for the husband’s solicitors to brief counsel to resolve this matter.

APPLICANT: Mr Reece

RESPONDENT: Ms Gilmore

FILE NUMBER: MLC 11512 of 2015

DATE DELIVERED: 2 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Keith Cameron Solicitors

COUNSEL FOR THE RESPONDENT: Mr Lipshutz

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

BY CONSENT IT IS ORDERED THAT:

1.      The wife give access to the properties at:-

a.      B Street, C Town; and

b.      The land in D Town:

for the purpose of valuation.

2.The parties do all acts and things necessary to ensure that E Real Estate carry out the valuation unless the parties agree in writing before 12.00 noon on Monday 5 February 2018 to have an alternate valuer to carry out and publish the valuations on or before 15 February 2018.

3.Notwithstanding paragraph 6 of the Order made on 16 November 2017, the husband pay the cost to the valuations at first instance, with the wife to reimburse the husband when she is able and, if not reimbursed as to her half prior to trial, the amount owing to be adjusted against and paid from any entitlement of the wife to the alteration of final property interests.

4.That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

IT IS FURTHER ORDERED:

5.That the wife pay a contribution towards the costs of the husband of this day in the sum of $600 such payment to be stayed until the final hearing of this matter.

6.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

7.That the bundle of correspondence tendered by the husband be marked Exhibit “H1” and remain on the Court file.

8.The signed minute of consent as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter finally without any input by the non-attending or defaulting party.

B.That this matter otherwise remains listed for mention on 23 February 2018 at 4.00 pm to follow the private mediation to which the parties have agreed and 26 March 2018 for final hearing.

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 Reece & Gilmore 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 11512 of 2015

Mr Reece

Applicant

And

Ms Gilmore

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me at the request of the solicitors for the husband on notice for the solicitors for the wife.  I am required to determine an application by the husband that the wife pay his costs of today. On 16 November 2017, I set this matter down for final hearing before me on 20 March 2018 and made orders to ready the matter for trial, including valuations of real properties.  One of the real properties is the former matrimonial home at B Street, C Town and the other is vacant land in D Town Street, D Town.  The orders of 16 November 2017 provided that the parties obtain single expert valuations from E Real Estate for both properties by mid-January 2018 and such valuations to be the market value as at January 2001, January 2003 and currently. The valuations are to be at the parties’ equal expense.  

2. They are, therefore, valuations with somewhat more than the usual complexity.  I place on the Court file as exhibit H1 a bundle of correspondence from the husband’s solicitors, Keith Cameron, dated 29 January 2018 which deals with the amount of the fees for the valuation which would be charged by the agreed valuer, E Real Estate and correspondence from E Real Estate to the solicitors for the husband.  It is apparent that as at 22 December 2017, in every sense the last working day in Melbourne before the Christmas break, the parties were informed that the costs that would be charged by E Real Estate for both valuations was $8250, including GST.  In fact, that was a reduced fee.  The original fee had been $9350 and the parties had been advised of that on 19 December 2017. 

3. On 25 January 2018 at 11.29 am, E Real Estate wrote to the solicitors for the parties via email.  Omitting formal and irrelevant parts, the email read:

   Good morning.  I am informed that the valuer has been refused access to the [C Town] property by the wife in this matter. 

   More specifically, the valuer has advised the following: - ‘I have made contact with [Ms Gilmore] in the [Reece] matter to gain access to [B Street, C Town], who had advised that she had not given her consent for the valuations to proceed due to our exorbitant fees.  I did explain that the fees had been discounted but were complex due to the two additional retrospective dates which require analysis of three sets of sales.  She advised that she would not allow the valuations to proceed as the fees would not be paid even though the Court had made orders.’ 

   Please confer amongst yourselves and advise us of your further instructions.

   The email was headed “Refusal of Access (Urgent)”. 

4. On Monday, 29 January 2018 at 9.17 am, a further email was sent by E Real Estate requesting instructions urgently.  On 29 January 2018, the husband’s solicitors wrote to my associate requesting that the matter be set down before me to deal with the wife’s refusal to allow the valuer access to the former matrimonial home. That correspondence was appropriately copied to the wife’s legal practitioner. My associate responded at 10.11 am on Monday, 29 January saying the following, omitting formal and irrelevant parts: -

   This matter will be listed for mention before her Honour on Friday, 2 February 2018 at 9 am. 

   The mention as listed will be vacated upon joint notification from the parties that the issues as outline in the correspondence have been resolved. 

   The matter may be relisted on the day of an evaluation by [E Real Estate] in case any further issues arise and it is requested that the practitioner for the husband notify the writer of such a date.  If no issues arise, that date will also be vacated. 

   The matter otherwise remains listed on 23 February 2018 at 4 pm to follow the conclusion of the mediation.

5. Today the matter was listed at 9 o’clock and I was informed that there was a resolution of the matter on the basis that the husband would pay the valuation fees initially and the wife is to reimburse him for her half of the costs of the valuation fees from her entitlement under the final orders for their pending property proceedings.  A further aspect of the resolution was that in the event that the parties, through their lawyers, could find another valuer that would perform the same work, to the same standard, but more cheaply, by 12 noon on Monday, 5 February 2018, that valuer may be engaged, providing that the valuation will be completed, available and published by the date required by the 16 November 2017 orders.

6. I will proceed to make orders to that effect.  The remaining issue today, is costs of today. 

7. Neither party attends court today.  They are delivering their youngest child to the first day of school.  I don’t take issue with that but I have commented that it was open to either party to seek that the matter not be set down for today and proceed on another day, but they failed to do so. 

8. The husband seeks costs in the sum of $2665.76 and his counsel, Mr Hall, has read out various item numbers of the Family Law Rules scale costs. Generally, he seeks costs at the high end of the scale of costs, save for the attendance at Court by counsel. That was pared down to reflect that only two hours have been spent by counsel on this matter. One of the costs is $400 for photocopying the brief.

9. I have reviewed the costs as claimed and find that although calculated in accordance with the scale, I have difficulty in accepting that there is two hours of work to get the matter ready for a mention in addition to briefing counsel.  There is also the photocopying to which I take exception. The two hours of time spent by a lawyer today could have been much less, had the husband had been ready at the commencement of today’s hearing with a minute of order that he sought to be made and a calculation of costs that he was seeking be ordered to be paid by the wife. 

10. The starting point for any costs application for any matter in the Family Court is set out in section 117(1) and that is that each party to the proceeding shall bear his or her own costs.  Mr Hall has correctly and thoughtfully taken me through the legislation, pointing to the threshold issue of a costs order being justified under section 117(2).  In that respect, he says that the matter was necessarily brought back to Court because of a refusal by the wife to abide by an order made by me on 16 November 2017.

11. Mr Lipshutz, who appears for the wife, takes issue with the husband’s submission that his client refused the valuer access to property.  He says that did not occur.  For today’s proceeding I’m prepare to accept that it did not occur.  However, that still leaves the fact that the wife told the valuer that she would not pay half of his fees, as I ordered on 16 November 2017.  In those circumstances, I am confident the valuer would not have attended the property and conducted the assessment.  Entirely consistently with the comments by the wife as reported by the valuer about her unwillingness to pay for the valuation, Mr Lipshutz rose to his feet this morning and said that his client could not pay the amount required under the order of 16 November 2017.

12. I am satisfied that the matter did have to come back to Court.  I’m satisfied that the matter has come back to Court because of the failure of the wife to follow through on arrangements which was ordered on 16 November 2017.  I am satisfied that there are circumstances which justify an order for costs.

13. Now, in considering what order, if any, should be made, I take into account the various matters under section 117(2A).  They include the financial circumstances of each of the parties to the proceedings.  Neither party can afford to pay costs which are unnecessarily incurred. Insofar as the wife is concerned, Mr Lipshutz tells me from the bar table, without any affidavit material that his client’s employment has ceased;  that in the recent past she has received some $23,000 by way of severance pay and that all of that has been spent.  None of it was spent on legal costs payable to Mr Lipshutz’ firm, and what is owed by the wife to his firm at the moment is the sum of about $30,000.  Mr Lipshutz refers to his client as impecunious which I think is probably overstating it, but through Mr Lipshutz, it is stated that the wife is without cash reserves to pay for one half of the valuation costs, let alone costs of the appearance this day.  I take the financial circumstances of the parties into account, but not having any money does not confer an immunity from costs orders. 

14. Neither party is in receipt of legal assistance from Legal Aid. 

15. I take into account the conduct of the parties in these proceedings.  In particular, the fact that the wife’s late statement that she will not pay one half of the costs of the valuation has prevented the C Town property being inspected this week and necessitated a mention in Court.  I am satisfied that the wife has indicated that she would not comply with the orders of the Court. 

16. In the circumstances of this case, I am satisfied that the wife should make a contribution to the costs of the husband.  He has incurred significant costs, it is said, by virtue of her foreshadowed noncompliance and he should not be required to bear all of those costs. 

17. I am not satisfied that this was a matter which necessarily required counsel to appear.  It’s a mention about valuations.  It could have been done by a solicitor; indeed it could have been done by a solicitor by telephone if need be, but I note that no telephone mention was requested so the practitioners have come to Court.  I think that it is unfortunate if the husband is charged $2665.76 for work done but I do not think that all of that work as quoted was necessary to get the matter before me today and the issue of valuation sorted out.

18. In all of the circumstances of the case, I’m satisfied that the contribution by the wife to the husband’s costs of today thrown away by virtue of this hiccup in valuations should be fixed in the sum of $600. 

19. The wife seeks a stay of payment until the final property and I will order that in those terms as it is not vigorously opposed by Mr Hall and seems to me to be an appropriate outcome in any event.

20. Now I want to say something about the future of the matter.  Mr Lipshutz says that given that his client is “impecunious”, she is likely to be a self-represented litigant at the final hearing.  That is fine.  Many people represent themselves at the final hearing and many people representing themselves who are not legally trained do a good job.  Some don’t.  What it is necessary for the wife to bear in mind is that she is responsible for the conduct of her case.  If she is a self-represented litigant, that is her problem and it’s not to be any else’s problem.  She is to prepare her material as ordered and file and serve it.

21. It does not appear that she has any money to retain alternative solicitors, but if she found solicitors who could act for her on the basis that they may be paid from her final award in these proceedings, she needs retain them in a way and in circumstances that will allow them to be on top of this matter, have a thorough understanding this matter in time for the final hearing and in time for her material to be filed and served in accordance with the trial directions I have already made.  Having said these things with Mr Lipshutz present in court, I rely upon him to convey them to the wife because there will doubtless be some delay before these reasons are published and can be read by her personally. 

22. I am unlikely to accept any adjournment application on the basis that the wife is without lawyers or without legal representation because this has been something that has obviously been coming for some time.  According to Mr Lipshutz, the wife received some $23,000 in severance pay.  She may have disposed of it prudently, having regard to all of her other liabilities, but from the time of doing so, she has been aware that she has no money to pay lawyers.  So she can represent herself but she’s responsible for preparing her own case and I caution her about thinking that there will be any indulgences granted to her because she represents herself.  She knows now, some months out from the hearing, that that will be the case. 

23. In the event that a party does not comply with the trial directions for the filing of material. I may permit, this matter to proceed on an unopposed basis.  In the event that a party does not participate in the proceeding by attending Court when they are required to do so or by not attending the mediation when they are required to attend the mediation, they should assume that the matter will proceed to conclusion in their absence.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 2 February 2018.

Associate: 

Date:  14 May 2018