Rutherford and Rutherford

This case concerned an application by Ms Rutherford (the wife) to enforce orders made in 2006 against Mr Rutherford (the husband). The wife sought to enforce payment of a significant sum of money, which had been outstanding for approximately five years. The husband appeared in person and had not filed any documents in response to the wife's application.

The primary legal issues before the court were whether to enforce the outstanding orders, the terms of any such enforcement, and the appropriate orders regarding costs. Specifically, the court had to determine if there were sufficient grounds to depart from the usual principle that parties bear their own costs and to award costs on an indemnity basis, and whether to make orders under section 106A of the Family Law Act 1975 to facilitate the enforcement of the property settlement.

Justice Cronin found that the wife had waited an unreasonable amount of time for payment and had been forced to litigate to obtain her entitlements. The husband had not provided any serious, evidence-supported proposals for payment, relying instead on a general statement that he would do his best and a conditional loan approval from Westpac Bank. The court determined that the wife was entitled to the capital sum plus accrued interest, which was running at approximately $205 per day. Given the husband's lack of proactive steps towards payment and the wife's prolonged wait, the court exercised its discretion in favour of the wife. The court also found that the circumstances justified an award of costs on an indemnity basis, given the husband's failure to comply with court orders and the wife's need to enforce them.

The court ordered that the husband pay the wife the sum of $992,525, plus $205 per day from 1 November 2011 until payment. The husband was also ordered to instruct Westpac Bank to speak with the wife's solicitors regarding the progress of his loan. Furthermore, the husband was ordered to pay the wife's costs on an indemnity basis in the sum of $20,000. The court also made orders under section 106A of the Family Law Act 1975, directing that a person other than the husband sign documents if required for the sale of the C Town property, should payment not be made by 13 January 2012.