Sabet & Abdoo (No 2)
[2025] FedCFamC2F 379
•25 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sabet & Abdoo (No 2) [2025] FedCFamC2F 379
File number(s): PAC 6761 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 25 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – application refused.
FAMILY LAW – COSTS – Costs application by husband – costs application by subpoena objector.
Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Novikov & Novikov [2024] FedCFamC1A 56
UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107
Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 14 March 2025 Place: Parramatta Solicitor for the First Applicant: Mr Agostino, Agostino & Co Counsel for the Second Applicant: Ms Mahony Solicitor for the Second Applicant: A Plus Legal The Respondent: No appearance ORDERS
PAC 6761 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ABDOO
First Applicant
HH PTY LTD
Second Applicant
AND: MS SABET
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
25 MARCH 2025
THE COURT ORDERS THAT:
1.Leave be granted to the husband to bring an application for costs out of time.
2.The wife pay the husband’s costs of 23 February 2022 in the sum of $1,964.
3.The wife pay the husband’s costs thrown away in relation to the adjourned interim hearing of 4 March 2022 in the sum of $1,964.
4.The wife pay the husband’s costs of 28 March 2024 in the sum of $1,767.
5.All the husband's costs as ordered to be paid by the wife shall be paid by the wife to the husband from the proceeds of sale of the Suburb H property in priority to any payment to the wife pursuant to Order 19(e) of the Court’s Orders of 7 November 2024.
6.The wife pay HH Pty Ltd’s costs of 8 October 2024 in the amount of $1,767.
7.The costs of HH Pty Ltd as ordered to be paid by the wife shall be paid by the wife to HH Pty Ltd from the proceeds of sale of the Suburb H property in priority to any payment to the wife pursuant to Order 19(e) of the Court’s orders of 7 November 2024.
AND THE COURT NOTES THAT:
A.On 7 August 2023 the court ordered that the wife pay 80 per cent of the husband’s costs for work completed in relation to the wife’s interim application filed 13 December 2021 (amended 9 March 2023 and heard on 26 April 2023) as agreed or failing agreement, as assessed on a party-party basis pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
B.On 9 October 2024 the Court ordered that the husband's costs in relation to the wife’s dismissed Application in a Proceeding dated 3 October 2024 be paid by the wife.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
BACKGROUND
This is the determination of two Applications in a Proceeding each seeking costs against the Respondent Wife (“the wife”):
(a)Application in a Proceeding filed by the First Applicant, HH Pty Ltd, on 6 November 2024;
(b)Application in a Proceeding filed by the Second Applicant Husband (“the husband”) on 26 December 2024.
The above applications were originally listed for hearing on 7 February 2025. On 6 February 2025 an administrative adjournment was granted in chambers at the request of the wife and with the consent of all parties. On the adjourned date of 14 March 2025 there was no appearance by the wife and the hearing proceeded in her absence.
MATERIAL RELIED UPON
The First Applicant, HH Pty Ltd, relied upon:
(a)Application in a Proceeding filed 6 November 2024;
(b)Affidavit of Mr AG filed 6 November 2024;
(c)Written submissions filed 6 November 2024;
(d)Short Case Outline filed 11 March 2025.
The husband relied upon:
(a)Application in a Proceeding filed 26 December 2024;
(b)Affidavit of the husband filed 26 December 2024;
(c)Written submissions filed 11 March 2025.
The wife did not file any material in response to either application.
SECTION 117 OF THE FAMILY LAW ACT 1975, CTH
Section 117(1) of the Family Law Act 1975 Cth (“the Act”) provides that each party to proceedings shall bear their own costs. Section 117(2) allows for the court, if it is of the opinion that there are circumstances justifying it in doing so, to make such order as to costs as the court considers just.
Section 117(2A) provides that in considering what order, if any, should be made as to costs, the court shall have regard to the following matters:
(a)The financial circumstances of each of the parties to the proceedings;
(b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)Such other matters as the court considers relevant.
WIFE’S ADJOURNMENT APPLICATION
The wife sent an email to the Court’s Associate on 12 March 2025 and which stated:
I am suffering from complications of Complex Post Traumatic Stress Syndrome and anxiety due to pending eviction by [QQ Law Firm] [in] April 2025 which is making me unfunctional with my daily tasks and any work or legal work.
I have attached evidence of my medical certificate and eviction letter from [QQ Law Firm] addressed to me.
Unfortunately as a result I am unable to attend the cost hearing this Friday 14 March with Judge Newbrun between me and A Plus legal and [HH Pty Ltd].
[Mr Abdoo] (other party and my ex husband) was supposed to take custody of both the children as per his evidence in court during cross examination in our final hearing in October last year and he has refused to take both the kids and provide housing and care for them due to eviction and this has caused a lot of distress on me as I do not have loads of money or high income from employment unlike him to provide for the kids. Furthermore he has also not paid any child support from October last year putting further financial distress on me and it’s harder to provide for the kids with the raising cost of living contributing to decline in my mental health and PTSD.
I am requesting to relist this matter sometime in May after April 28th 2025 as per my medical certificate and once I have resolved my housing crisis and issues with my mental health hopefully.
The wife’s attached email from QQ Law Firm (who act for the bank mortgagee in possession) dated 4 March 2025 stated, inter alia, that they had been informed by the NSW Sheriff that an eviction has been scheduled at the property in April 2025. It stated that the mother should arrange to vacate the property and remove all personal belongings from the property prior to that time.
The wife’s medical certificate dated 7 March 2025 states as follows:
This is to certify that [the wife] is receiving medical treatment for ongoing depression and anxiety requiring the use of medications and a counselling treatment plan prepared for her along with counselling available via victims services. For the period
Due to the complexity of her multiple comorbidities and the time she needs to take to complete them she feels she is not able to attend to any legal matters over the next period of time from 7/03/2025 to 28/04/2025.
(As per original, emphasis added).
In relation to the relevant principles as to what constitutes an adequate medical certificate for the purpose of either adjourning proceedings or explaining non-attendance, McClelland DCJ in Novikov & Novikov [2024] FedCFamC1A 56 referred to Pepper J in UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at 42-51 as follows:
42While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why - and not just whether - the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
43To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant's participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.
44Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.
45In Bobolas, the appellants appealed against a series of decisions and orders made against them by this Court. One of the appealed decisions is relevant to the present application, namely, a decision by Pain J in Bobolas v Waverley Council (No 3) [2015] NSWLEC 100 to refuse to set aside orders made against the appellants by Sheahan J. The appellants sought to rely on affidavit evidence that they had “defences to council claims, but [they] were too sick to attend the hearing to voice them in any way.” Attached to the affidavit was a number of what purported to be medical certificates relating to each of the three appellants. Only three of the certificates were considered by the Court of Appeal to be relevant to the hearing before Sheahan J (at [210]). The first “certifie[d]” that the author of the certificate (whose name was redacted) had examined the first appellant and that, in the author's opinion “she was/is suffering from A MEDICAL CONDITION [and] she was/will be unfit for work up to and including 1.5.15.” The remaining two certificates related to the second and third appellants and contained similar language, however, they specified the conditions suffered by the second and third appellants as “CONTUSED L FOOT/ANKLE” and “CELLULITIS FEET”, respectively. Pain J rejected all of the medical certificates as having no probative value.
46On appeal, McColl JA held that Pain J’s rejection of the certificates was “unexceptionable”. In doing so, she opined that (at [221]):
221A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the “critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing.”
47McColl JA went on to conclude that the appellants’ medical certificates failed to address the “critical question” (at [222]).
48In Pachkovski, in dismissing an application to adjourn a hearing based on the illness of the three applicants, Hodgson JA stated that (at [4]):
4Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.
49In this Court, medical evidence tendered in support of an application to vacate hearing dates in Ross (No 13) has been rejected because (at [2]):
2…The medical certificate does not specify the condition said to render Mr Ross to be unfit to attend the remainder of today's hearing in these proceedings, nor does it specify the nature of the medication and its effects. In addition, no explanation is given in the certificate as to the nexus between the unspecified medical condition Mr Ross is suffering from and his asserted inability to continue representing himself in these proceedings.
50The difficulties that arise when medical evidence is given in vague and broad terms were summarised in Magjarraj (at [22]):
22All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.
51Finally, the Court of Appeal in Woodhouse considered an adjournment application arising from a factual matrix not dissimilar to the present case. There, an application was made by the applicant (a litigant in person) by way of an email to the Registrar attaching letters from the applicant's treating doctor and a clinical psychologist. In holding not to grant the adjournment the Court determined that (at [23]):
23The Court was not satisfied that the medical and other material provided by Mr Woodhouse to the Registrar justified an adjournment for reason of any medical condition from which he may suffer. The note from his treating doctor indicates that it would be “ideal” if the hearing of the case were delayed so as to avoid “stressors”. The psychologist's letter suggests without further elaboration that any attendance by Mr Woodhouse in court would be “ineffective”. Neither, in the Court's opinion, showed that Mr Woodhouse’s condition in any practical sense would prevent him from attending before the Court to support his current application or that his doing so would exacerbate that condition or otherwise put his health at risk.
Accordingly, the medical certificate relied upon by the wife in justifying her adjournment application has no probative value. The most significant defect in the medical certificate is the absence of any appropriately verified evidence from the doctor relating to the wife allegedly not being able to attend to any legal matters for the relevant period stated. The medical certificate merely states that the wife herself “feels she is not able to attend to any legal matters over the next period of time from 07/03/2025 to 28/04/2025” and does not contain any statement from the doctor himself that he has assessed the wife and formed the view that she was not able to attend to any legal matters over that period.
A further defect is that the medical certificate does not address the nexus between what was described in the medical certificate as being the wife’s ongoing depression and anxiety requiring the use of medications and a counselling treatment plan and her inability to attend to relevant legal matters, including attending court on 14 March 2025, whether by way of electronic means and/or instructing a legal representative to appear on her behalf.
Accordingly, the wife’s adjournment application was refused.
APPLICATIONS OF THE HUSBAND
At the outset, the Court observes that the husband, having filed his application in a proceeding on 26 December 2024, with the Court’s judgment having been delivered on 7 November 2024, was about three weeks out of time for the filing of that application; he had 28 days to apply for costs against the wife.
The Court accepts the husband’s evidence that given the complexity of the final hearing and the proceedings generally he sought advice from his solicitor and counsel in respect of the Court’s findings. The Court accepts his evidence that he was advised and believed that his counsel was on leave from 14 to 22 November 2024 and had other commitments for final hearings in the weeks commencing 25 November and 2 December. The Court accepts his evidence that he elected to take the first available advice from his counsel who appeared for him at the hearing in the week commencing 9 December 2024. The Court accepts his evidence that he made this decision and did not engage a different counsel because he wanted to receive advice from the counsel who had appeared for him throughout the case. The Court accepts his evidence that he also did not want to have the additional expense of paying for a new counsel to read all of the documents given the volume of documents in the history of litigation.
The Court is of the view that there is no prejudice to the wife in granting an extension of time to the husband to file his Application in a Proceeding. The delay was not excessive. The first return date for the husband’s Application in a Proceeding was 7 February 2025. It will be just to grant this extension of time to the husband.
The costs of the husband reserved on 23 February 2022
The husband, in paragraph 6 of his affidavit filed 26 December 2024, stated that in the proceedings the first interim hearing occurred on 23 February 2022. He stated that the wife participated in only half of the court event before she terminated her electronic participation and could not be contacted further by her legal representatives or the court. An order was made that the husband’s costs of that date be reserved.
The Court’s bench sheet for 23 February 2022 states:
NOTATION:
A.The Applicant’s Counsel lost instructions at 3.10pm today due his instructing solicitor not being able to get in contact with the Applicant. The matter was adjourned at 4.30pm when the matter was recalled.
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. By consent the sum of $20,000 be paid to the wife’s father, [Mr L], to be released from the [Suburb F] funds. The categorisation of such sum to be determined at final hearing.
2. Reserve the respondent husband’s costs of today.
3.The matter be adjourned to 11am 4 March 2022 with liberty to relist if any urgency arises in the meantime.
The Court does not have before it any material by which to determine the ambit of the dispute at the above interim hearing, but it infers from the orders and notations that the interim hearing was not able to be completed on 23 February 2022 due to the absence of the wife. In particular the Court observes that the interim hearing was adjourned to 4 March 2022.
In the circumstances, it will be just that the wife pay the husband’s costs of 23 February 2022, assessed at $1,964 in accordance with Item 4 of Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“Schedule 1”).
The costs of the husband reserved on 3 March 2022
Again, Senior Judicial Registrar Tran had lastly ordered on 23 February 2022 that:
3.The matter be adjourned to 11am on 4 March 2022 with liberty to relist if any urgency arises in the meantime.
The Court’s bench sheet for 3 March 2022 states, inter alia:
UPON APPLICATION MADE TO THE COURT WITH NO APPEARANCES BEING REQUIRED BY OR ON BEHALF THE PARTIES, THE COURT MAKES THE FOLLOWING NOTATIONS in chambers:
A.Leave was granted for the applicant wife’s solicitor to cease to act on 2 March 2022.
B.The wife is now unrepresented and has sought an adjournment of the interim hearing listed on 4 March 2022. The respondent husband opposes such adjournment.
ON ITS OWN MOTION THE COURT ORDERS THAT:
1.The interim hearing listed on 4 March 2022 be vacated with liberty to relist on 21 days notice.
2. Costs be reserved.
3.The directions hearing listed on 16 May 2022 at 12 noon before Judicial Registrar Buttriss is confirmed.
It is apparent that the adjourned interim hearing due to be held on 4 March 2022 was sought to be adjourned by the wife very late and only just a day or so before 4 March 2022. It will be just that the wife pay the husband’s costs thrown away in relation to the adjourned interim hearing of 4 March 2022 in the sum of $1,964 in accordance with Item 4 of Schedule 1.
Husband’s reserved costs of 16 April 2024 (in respect of court events on 25 March 2024 and 28 March 2024)
In paragraph 11 of the husband’s affidavit filed 26 December 2024, he states:
11.On 28 March 2024 the final hearing listed was marked not reached and the wife made an application for interim orders in respect of the financial matters. The hearing was due to start on 25 March 2024 and I was present and ready to proceed. The wife had not filed her trial material and sought time to file an affidavit. This necessitated continued attendance at court to address this issue. The oral application on 28 March 2024 was dismissed on 16 April 2024 and my costs were reserved for both 25 and 28 March 2024. The costs incurred by me on this date were $18,700.
On 25 March 2024 the Court adjourned the matter to 10.00 am on 28 March 2024.
On 28 March 2024, the Court’s bench sheet states, inter alia:
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. The Court reserves its decision in respect of the wife’s oral application made today.
THE COURT FURTHER ORDERS IN CHAMBERS THAT:
4.These proceedings are marked as Not Reached, with new hearing dates to be allocated at the time that the Court delivers its judgment in respect of the wife’s oral application.
The Court’s bench sheet for 16 April 2024 states, inter alia:
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. The wife’s oral application made to the Court on 28 March 2024, seeking orders in relation to proceedings in the Supreme Court of NSW No […] between the CBA bank and the husband, is dismissed.
…
3.The Court reserves the costs of the husband in relation to 25 March 2024 and 28 March 2024.
4.The Court sets down the parenting and property proceedings for final hearing on 14 October 2024 (estimate four days).
It is apparent from the above orders that the final hearing was effectively not reached on 25 March 2024. However, at the instance of the wife, she sought interim property related orders at court on 28 March 2024 and she was unsuccessful in that application, and accordingly the husband should be paid his costs of the wife’s oral application made on 28 March 2024.
The Court’s bench sheet records that on 28 March 2024 the matter was heard from 10.22 am to 10.55 am and from 11.16 am to 12.40 pm. The husband was represented by counsel.
The husband’s costs are therefore assessed in accordance with Schedule 1 as follows:
Item Amount Item 13(b) – daily hearing fee for half day hearing on 28 March 2024 $1,178 Item 14 – advocacy loading $589 Total (including GST) $1,767 Husband’s costs incurred at the final hearing commencing 14 October 2024 and concluding 18 October 2024
The husband seeks costs of the final parenting and property hearing.
The husband drew the Court’s attention to his written submissions filed 11 March 2025 and made oral submissions at the costs hearing, which the Court has considered.
It is necessary to consider the husband’s application for costs of the final hearing within the context of s 117 of the Act.
Turning to the financial circumstances of each of the parties to the proceedings, the wife was not employed at the date of hearing and she was caring for the children. It was her intention to return to part-time work as a health care worker possibly in early 2025. As to the husband, his work with the company HH Pty Ltd came to an end in October 2024, however he had previously worked as a professional for a significant period and his income has been as high as about $200,000 gross per annum (see paragraph 286 of the Court’s Reasons for Judgment).
Neither party is in receipt of a grant of legal aid.
As to the conduct of the parties in relation to the proceedings, the husband submitted that the wife had, inter alia, failed to set out the parameters of the dispute, including through having failed to properly plead her case, resulting in the final hearing taking longer than it needed to because of its increased complexity.
The husband submitted that the wife’s proposed order that she be appointed trustee for the completion of incomplete building works on the Suburb H property and thereafter as trustee for sale of that property was doomed to fail because the mortgagee bank was legally in possession of the property. This submission was accurate; however, that issue did not take up a significant part of the trial compared to, for example, numerous complex balance sheet issues in relation to which the Court had often to consider factually complex and disputed evidence and make relevant findings. The husband effectively submitted, in this context, for example, that he was unreasonably put to the expense of producing as a witness at trial Ms J. This latter submission is not accepted by the Court when one has regard to the complexity of the factual findings that the Court had to make in relation to the loans from Ms J to the husband.
The Court would assess that by the time the final hearing commenced, the husband’s side was aware of the issues to be determined by the Court, both in relation to parenting and property.
Having considered all the submissions of the husband in relation to this costs application for the final hearing, the Court is not persuaded that it will be just that the wife pay his costs of the final hearing.
Proposed order 3: that the payment of the Husband’s ordered costs be paid from the proceeds of sale of the Suburb H property
The husband seeks an order that his ordered costs be paid to him from the proceeds of sale of the Suburb H property in priority to any distribution to the wife pursuant to Order 19(e) of the Court’s final property Orders of 7 November 2024.
In the view of the Court, having regard to the Court’s Reasons for Judgment of 7 November 2024, it is likely that the wife has no financial resources available to her to meet costs of the husband ordered to be paid by her other than from her entitlement to a distribution of monies pursuant to Order 19(e) of the Court’s final property Orders of 7 November 2024. As submitted by the husband, it is likely that the implementation of costs orders made in his favour will be rendered futile if the wife is not required to meet those costs from the proceeds of sale of the Suburb H property in priority to any distribution to the wife pursuant to Order 19(e) of the Court’s final property Orders of 7 November 2024.
Accordingly, it will be just that the Court make the husband’s proposed Order 3 as set out in his Application in a Proceeding.
COSTS APPLICATION MADE BY HH PTY LTD
The above company filed an Application in a Proceeding on 6 November 2024 seeking orders, inter alia, that within 28 days the wife pay the costs of and incidental to subpoena objections of the company on an indemnity basis fixed at $8,500 plus GST.
The Court has had regard to the material relied upon by HH Pty Ltd.
On 2 February 2024, the Court heard a subpoena dispute between the husband and wife, also involving a Ms J (one of the disputed subpoenas have been addressed to her). At this interlocutory hearing the wife was represented by her then-solicitor. The husband was represented by counsel that ultimately appeared at the final hearing. The above company was not present at this interlocutory hearing. The Court, having heard argument, made these interim orders relevant to the above company on that date:
2.The Notice of Objection – Subpoena filed 9 January 2024 by the husband to the wife’s subpoena directed to Commonwealth Bank of Australia (S58) is upheld but only to this extent:
In the schedule to the subpoena the reference to [HH] Pty Ltd shall be deleted.
…
5.The Notice of Objection – Subpoena filed 9 January 2024 by the husband to the wife’s subpoena directed to [JJ Company] (S56) is upheld but only to this extent:
In the schedule to the subpoena the reference in Clause 2(c) to [HH] Pty Ltd shall be deleted.
6.The Notice of Objection – Subpoena filed 9 January 2024 by the husband to the wife’s subpoena directed to [HH] Pty Ltd (S62) is upheld and that subpoena will be set aside.
…
8.The husband’s costs in relation to his Notice of Objection – Subpoenas including today’s subpoena hearing are reserved.
The Court observes that in the schedule to the actual subpoena in Order 4 above addressed to the CBA bank relating to HH Pty Ltd sought certain bank records of that company for the period 1 January 2016 to date.
The Court observes that the actual subpoena in Order 5 above was addressed to JJ Company, and the reference to HH Pty Ltd in the schedule to the subpoena was contained within clause 2 (c); there are only 3 opening lines of clause 2.
On 8 October 2024, the Court determined a subpoena contest between the wife and HH Pty Ltd. On that date the wife was represented by counsel as was the husband, and counsel appeared for the company. The Court ultimately made these orders, relevant to the company’s opposition to certain subpoenas:
1. The objection to the subpoena to the Commonwealth Bank of Australia regarding [HH] Pty Ltd (S85) is upheld and the subpoena is set aside.
…
4.The objection to the subpoena to [JJ1 Pty Ltd] (S86) is upheld to this extent: any reference in the schedule to that subpoena to [HH] Pty Ltd is struck out.
5.The Court reserves its decision with respect to the objection to the subpoena to [Mr AJ].
On 9 October 2024, the Court ordered that the objection to the subpoena to Mr AJ is upheld but only to this extent: any reference in that subpoena to HH Pty Ltd is struck out.
The Court observes that in the schedule to the actual subpoena in Order 1 above addressed to the CBA bank relating to HH Pty Ltd sought certain bank statements of that company for the period 1 June 2020 to date and provided further identifying particulars of that company.
The above subpoena to JJ1 Pty Ltd is not the same entity as the earlier subpoena to JJ Company and further, the schedule to the subpoena to JJ1 Pty Ltd, in so far as it refers to HH Pty Ltd, is of more detailed wording than the earlier subpoena to JJ Company.
The above company submits that in these proceedings subpoenas were issued twice seeking substantially the same documents in circumstances that amount to an abuse of process justifying an award for indemnity costs. Having regard to the Court’s above discussions relating to the differences between the relevant subpoenas the subject of the two separate subpoena hearings, the Court does not accept this submission. The Court is not satisfied that indemnity costs order will be a just order to make.
Nevertheless, it will be just, in all the above circumstances, to order that the wife pay the costs of the above company relating to its appearance before the Court on 8 October 2024, assessed in accordance with Schedule 1 as follows:
Item Amount Item 13(b) – daily hearing fee for half day hearing on 8 October 2024 $1,178 Item 14 – advocacy loading $589 Total (including GST) $1,767
The above company sought an order that any costs order made in its favour be paid out of the proceeds of sale of the Suburb H property in priority to any distribution to the wife pursuant to Order 19(e) of the Court’s final property orders of 7 November 2024. It will be just to so order, with the Court referring to its reasoning above in relation to the husband’s costs orders being also facilitated on this same basis.
The Court makes orders accordingly.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 25 March 2025
0
3
1