SAMUEL & SAMUEL

[2014] FCCA 596

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMUEL & SAMUEL [2014] FCCA 596

Catchwords:
FAMILY LAW – Property Orders – where husband seeks order for variation under s.79A(1)(c) – where both parties in default – where costs sought by wife.

Legislation:

Family Law Act 1975, s.79A(1) (c)

Cawthorn & Cawthorn [1998] FamCA 37
Carrington & Carrington [2010] FamCA 982
Gull & Gull [2012] FamCA 431
Gaudry & Gaudry [2004] FMCAfam 649

Applicant: MR SAMUEL

Respondent: MS SAMUEL

File Number: DGC 2143 of 2010

Judgment of: Judge Small

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Dandenong

Delivered on: 14 March 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Da Gama

Vermon Da Gama & Associate

Solicitors for the Respondent:

Mr Knopf

Robin Harrison & Associates

ORDERS

1. The Application filed by Mr Samuel on 23 August 2012 is hereby dismissed.

2. The Orders made by this Court on 1 February 2012 remain in full force and effect.

IT IS NOTED that publication of this judgment under the pseudonym Samuel & Samuel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 2143 of 2010

MR SAMUEL

Applicant

And

MS SAMUEL

Respondent

REASONS FOR JUDGMENT

1. In the matter of Samuel, the matter came before me yesterday for mention on the husband’s application under s.79A(1)(c) for variation of orders that had been made by consent in this court on 24 March 2011.

2. The order that was sought to be varied was order (1)(c) of those orders.  That order provided for the husband to pay to the wife $36,000 upon her complying with orders that provided for her to transfer two properties in India to the husband.  In fact, what that order actually said was within 90 days, the parties were to do certain things and paragraph (1)(C) was the one that said that the husband was to pay to the wife $36,000 upon her complying with those orders in relation to the properties in India.  But it also said “or in any event”. 

3. The actual order (1)(c) reads, if I read it within the whole of order (1), says that:

   Within 90 days, upon the wife completing all her obligations pursuant to paragraph (1A), and in any event, within 90 days of this date, the husband pay to the wife the sum of $36,000.

4. That order was amended by orders made on 1 February 2012, which provided for the husband to the pay the wife the $36,000 upon receiving proof that the properties in India had been transferred to the husband.  What that means is that between 24 March 2011 and 1 February 2012, the husband was obliged to pay to the wife $36,000.  And that wasn’t done. 

5. There has been voluminous correspondence between the parties since orders were made in March 2011.  To cut a very long and involved story short, the properties in India are actually shares in a co-op – that property to be transferred is actually shares in a co-op; it’s not title to property.  The shares were in fact only transferred in February 2014, almost three years after the orders had originally been made.

6. Now, as I said, there was voluminous correspondence between the parties between March of 2011 and August of 2012 when the husband, being concerned that the properties in India had not been transferred, issued proceedings in this court seeking, I’m not quite sure how to put this, seeking a variation of the order under section 79A(1)(c), but also seeking in a sense, compensation for losses that he says have arisen from the default of the wife.

7. The other things that the original orders said was that the husband was to transfer the Property E property registered in the names of both parties to the wife, subject to the mortgage upon that property, and she was to refinance that mortgage and remove the caveat over the Property H property upon transfer.  I am told today that there never was a caveat over the Property H property to remove.  So from 24 March 2011 to 1 February 2012, the husband was obliged to pay $36,000. 

8. It was said to me in submissions only yesterday that he was unable to do that because the mortgage had not been discharged on the Property E property and that there was a caveat over the Property H property.  Why, I understand, is that the husband was waiting for the transfer of the Indian properties before he thought he had to pay the $36,000.  My reading of the orders does not say that.  My reading of the orders is that he was to pay the $36,000 in any event within 90 days of the date of the orders and he did not do so.  It is not a terribly difficult thing to conduct a title search to find out whether there is a caveat on a property.  That apparently was not done and the husband was under the illusion that there was a caveat on the property that is registered in his sole name in Property H.

9. In any event, in that period when he was obliged to pay the $36,000, he did not.  He did not mortgage his Property H property in order to do so when he could have.  Now, that will become relevant when I talk about the law later on. 

10. The wife did not refinance the mortgage over the Property E property immediately.  She says that she was unable to get finance through (omitted) Bank; that they prevaricated and delayed and that eventually she had to get finance through the (omitted) Bank and that did not happen until I believe, December of 2011 and that is when the Property E property was transferred to her.

11. At least at that point – at very least at that point, if the failure to pay the $36,000 was because the husband’s name was still on the mortgage at Property E and that he could therefore not gain finance to further mortgage his Property H home, then at least from whatever the date was in December 2011 when the mortgage on Property E was re-financed, the husband had the capacity to mortgage his house and make the payment.  Again, he did not do so.

12. In his application, the husband says that the default of the wife in transferring the Indian properties is the reason he has not made the payment.

13. Nevertheless, the payment was not made in the period when, on my reading of it, it was supposed to be paid within 90 days of the order.  And between that date, which would have been mid-June of 2011 until 1 February 2012, it is my view that the husband himself was in default of the orders of 24 March 2011. 

14. I am told that now, apart from the payment, all the orders of 24 March 2011 have now been completed and complied with.  What the husband seeks in these proceedings and these proceedings were instituted on 23 August 2012, is a repayment to the husband from the monies owed to the wife, or an offset against the payment of the monies owed to the wife, such that he would only have to pay the wife the sum of $9200 out of the $36,000.  I will come back to that in a little while.

15. On 1 February 2012, further proceedings were issued after the final proceedings of 2011 and then Federal Magistrate O’Sullivan made orders by consent that the payment of the $36,000 was to be made on or before 30 days after the wife provides to the husband official confirmation of the transfer of the Indian properties.  The husband was then to nominate someone to act for him and make an appointment with the Registrar in (omitted) for his nominee and the wife’s mother as her constituted attorney to effect the transfer within 30 days of the date of the appointment with the Registrar.

16. The husband and the wife were to attend a settlement conference within 30 days to sign the documents to transfer the Property E property and it would seem that that happened eventually.   Then it said that the wife was to re-finance Property E but no time limit was placed on that.  It did not say when.  The Order just said that the wife was to refinance and neither party was to lodge any further caveat over any of those properties that were subject to 24 March orders.

17. And then after probably a year of both correspondence and other proceedings – well, different proceedings, the husband then filed his application in a case on 23 August 2012.  He sought, as I have said, a variation in the orders so that he would only have to pay $9200 of the $36,000 ordered on 24 March 2011 and he also sought costs which would be paid from the wife’s entitlement under the orders made on 24 March 2011 and 1 February 2012.  He sought an order that the court use its inherent jurisdiction to enforce its own orders for those orders to be varied. 

18. The (omitted) Bank mortgage was not re-financed until February 2012 after the second set of orders was made and the Property E property was therefore transferred to the wife.  Again, there was voluminous correspondence between the husband’s solicitors and the wife’s solicitors about that, which started in 2011.  The husband signed the authority to discharge the mortgage on 14 July 2011 and sent it to the wife.  She provided a transfer of land, which was stamped and signed and sent back to the wife’s solicitor and on 25 July 2011, the wife’s solicitor informed the husband’s solicitor that the stamped transfer of land had been sent to the bank.  It was only after that and that I note, is some five months after the orders, the wife decides she’s going to change who she gets her money from and decides that (omitted) Bank isn’t going to be her mortgagee, the (omitted) Bank is and through all sorts of difficult to follow (but set out in affidavits) process, that all happened but not until February of 2012. 

19. It is my view that the wife was in default about the (omitted) Bank mortgage, although it’s difficult to actually say that because there was no time limit in the orders within which the wife was to refinance the (omitted) Bank mortgage.  So perhaps she wasn’t actually in default of the orders. 

20. But it is in relation to the Indian properties where we come to the real dispute between the parties.  There were various bureaucratic procedures to be completed in India before the transfer of the shares in the housing co-op could be effected between the husband and the wife.  It was to be done through attorneys holding powers of attorney in India on behalf of the husband and the wife and from what I can glean, the wife appointed her mother as her constituted attorney and the husband appointed his father, so that it was the in-laws, if I can say it like that, who were the constituted attorneys and who were to effect the documents for transfer.

21. The first set of documents was executed incorrectly.  The wife executed those documents incorrectly and a fresh set was sent.  It’s the husband’s case that the wife was informed what she had to do and she didn’t do it properly.  Nevertheless, on 29 August 2011, a fresh set of documents was sent. 

22. It was some three months later that the husband was advised that the wife had finally signed those documents and nothing had been done in that time to transfer the shares in the co-op.  The documents were not provided to the husband until 1 February 2012, when the matter was next at court and the wife complains that the husband is in default because he hasn’t paid the payment.

23. This is a case where it’s chicken and egg almost in relation to who defaulted first, or what the default was or what was the extent of the default.  There’s an implication in one of the affidavits that the fact that the husband’s father actually lives in one of the co-op buildings and knows all the people there, that there has been some nefarious influence placed on the co-op board and I say that that’s an implication in an affidavit.  It’s not a direct statement but it is an implication and it seems that there are many intricate issues going on behind the scenes in India and in Australia that have conspired together to prevent the transfer of those shares until, as I said, less than a month ago. 

24. The husband says that his losses amount to the following and he says this in his affidavit sworn on and filed on 23 August 2012, when these proceedings were instituted.  He says that first of all, he owes his father $54,000 plus interest at 12 and a half per cent.  At the date of filing that affidavit in August 2012, the interest accrued was $6480 and he says he can’t pay until he can sell the Indian property or mortgage the Property H property.  In fact he could have mortgaged the Property H property some 17 months before that date because the orders had been made and the Property H property didn’t have a caveat on it. 

25. He also says that he had an Indian credit card with a liability of $12,000 and a $3,586 dollar tax liability which he also could not pay because of the wife’s default in the transfer of the Indian properties. 

26. He says that he would have been able to sell the Indian properties in mid-2011 and have sent the money back to Australia at an exchange rate of about 47.75 rupees to the Australian dollar.  In August 2012, he says the exchange rate was 58.35 rupees to the dollar and that therefore that on its own constitutes a loss of $13,320.  He says his costs of the February 2012 proceedings are, on a solicitor-client basis, $7000 and that those costs were reserved by then O’Sullivan FM. 

27. Therefore, what he wants the wife to pay is the $6480 in interest on the father’s loan, the $7000 in costs and the $13,320 in the exchange rate losses, which comes to a total of $26,800, leaving $9200 to pay the wife. 

28. The wife filed her response to that application on 18 October 2012.  She simply seeks orders that dismiss the husband’s application and that the orders of 1 February 2012 remain in full force and effect.  She also seeks her costs. 

29. Her affidavit, filed contemporaneously with that application, says that neither party was aware, at the time of the making of the orders on 24 March 2011, of the complexities of transferring the properties in India when the parties are in Australia.  Now, I note that these proceedings, or the initial proceedings, were filed on 29 June 2010.  The parties had had plenty of time to figure out what the complexities would be before 24 March 2011 and she also says that all the delays have been caused either by bureaucracy in Australia or in India, or by (omitted) Bank because they didn’t approve the refinance in time. 

30. She sets out in her affidavit material what her mother, as her attorney, has done in India and says that her mother has done all she can in her power to comply.  She says that there’s no logic in the suggestion that she has delayed the Indian properties’ transfer because she wants her money and she too is under the impression that that money is payable once the obligations in relation to the Indian properties have been completed. 

31. Various orders were made by then O’Sullivan FM in 2012 on 22 October and in 2013, on 28 March, a full two years after the original orders had been made, which made provision for trial directions and I note that in 22 October 2012, the notation to those orders sets out in detail the steps the wife has to take in order to transfer the Indian properties.  It still took another 15 months or 16 months for that to happen.

32. There was a trial date in March 2013 and at a mention of that matter, a telephone mention in January 2013, the matter was clearly not ready for trial because nothing had been done, or few things had been done and so the trial date was vacated.  That’s almost a carbon copy of what happened this year, when there was a telephone mention in late January for a trial in mid-March and the trial had to be vacated because at that point, there was still no resolution of the issue of the Indian properties transfer, or the Indian shares transfer.

33. O’Sullivan FM, as he then was, also made orders on 28 March 2013, which provided for discovery within three weeks of a request and which provided for the solicitors for both sides to file an affidavit setting out the compliance with all the extant orders and producing evidence of that compliance.  It was then adjourned to the duty list on 28 October 2013. 

34. The solicitors did set out their affidavits, both of them.  Mr Da Gama filed his affidavit on the date it was sworn, on 6 September and Ms Petra McHugh filed her affidavit, which was also sworn on that day, on 10 September. 

35. The husband’s solicitor deposes that the husband has completed all the things he had to do in relation to the Indian properties, but the wife has not and he annexes to that affidavit correspondence between the parties’ solicitors over the period of December 2012 to July 2013. 

36. He says that the reason that the wife’s mother, as her attorney, couldn’t make the appointment with the registrar in (omitted) was because she wasn’t available between March and June, or July, even, of 2013 and that the husband believes that the wife’s mother was in Australia for at least some of that time.  Nevertheless, the documents were executed for the two properties in India, respectively, on the 22^nd and 23^rd August 2013 in India. 

37. The husband’s solicitor says that the reason for the non-completion was entirely the non-compliance by the wife. 

38. The affidavit of Ms McHugh says that the transfer couldn’t be given to the co-op because the husband’s father retained the documents when they were executed on the 22^nd and 23^rd August.  The wife’s mother called the husband’s father, he provided the documents to her and then she provided them to the co-op and at that point, in September of 2013, having finally, two and a half years after the orders were made, executed the documents and delivered them to the co-op, the parties were waiting. 

39. They were then waiting for the co-op to have a managing committee meeting so that they could approve the transfer of the shares in the co-op.  Once that meeting took place, the wife’s mother would then take the transfer to the husband’s Indian solicitor and it would all go through and Ms McHugh says her client can do no more. 

40. I still find it extraordinary that that process took two and a half years and that the husband, all of that time, doesn’t make the payment either to his former wife or to his father in that time because he says he’s waiting for the Indian properties to be transferred, or the shares in the Indian properties to be transferred. 

41. There was some evidence provided by the husband’s solicitor about the extra documents that had to be provided to (omitted), the local authority in (omitted), in relation to what he calls the (omitted) property and those documents have now been provided and been sent to the wife’s solicitor in mid-September of 2013. 

42. Now we come at last to the issue before me today. The question I must ask myself is, am I able to make a decision about whether to grant a s.79A(1)(c) application without evidence of the value of the whole property pool in front of me?

43. Mr Knopf for the wife says that I can’t. Mr Da Gama for the husband says that I can. That’s putting blandly the dilemma before me today. What s.79A(1)(c) actually says and I’m paraphrasing, in a sense, because I’m putting it all together, if I am satisfied, or if the court is satisfied that a person has defaulted in carrying out an obligation imposed on the person by the order and in circumstances that have arisen as a result of that default, it is just and equitable to vary the order, then the court may in its discretion, vary the order.

44. That’s not a very long paragraph but there’s a lot in it.  What is clear is that the applicant bears the onus of satisfying the court that it’s appropriate to exercise that discretion in order to vary the order and there are several things that I need to take into account. 

45. The first is that it’s in the public interest that litigation is final, that people have a right to rely on the fact that final orders are made and that’s particularly so in circumstances where those orders are made by consent. 

46. There’s also something I must take into account that I don’t actually think is relevant particularly here, but it may be and that is that it’s in the public interest that parties who have been the primary contributors to their own financial troubles shouldn’t be able to seek to set aside an order on the basis of those financial troubles. 

1. Now, what’s happening here is that the order is not being sought to be set aside, it’s being sought to be varied and they are two different processes. 

2. But the third thing that I need to take into account when I’m looking at this is the circumstances that gave rise to the application must not be rectifiable by other means.  Now that is where I think we have a bit of a problem here and I will come back to that in a moment. 

3. In relation to whether the court has an inherent jurisdiction, there is authority to say – and I will get to that in a minute too – but there is authority to say that only s.79A is able to be used to vary or set aside orders made under s.79.  So we are stuck with s.79A and in this case, sub-s.1(c). 

4. I will now refer to some cases, some of which were provided by the solicitor for the wife and say what I think they say.  Because it’s my discretion that’s being exercised or not today. 

5. The first of those cases is the matter of Cawthorn, a 1998 case of the Full Court of the Family Court, a three judge bench, which says, among other things, that to obtain relief under s.79A(1)(c), the applicant must establish that his cause is just and equitable and he must come to court with clean hands. When the word “equitable” is used, then principles of equity may come into play and the applicant must come to court with clean hands.

6. The applicant hasn’t made the payment.  The applicant could have made the payment from the date of the orders because there was no caveat on the property at Property H.  So it could be said that the applicant does not come to this court with clean hands. 

7. The authority for the matter being restricted to s.79A is the matter of Liu, a 1984 case, also of the Family Court, of course.

8. But then we come to the case of Carrington & Carrington, which is a 2010 case of the Family Court, a single judge being Benjamin J.  He says that when I’m looking at a case in respect of a summary dismissal, because that’s what the wife seeks of the husband’s application, I have to take the husband’s case at its best. 

9. The husband’s case at its best, in this case, is that the wife has defaulted by not having the properties or the shares transferred in a timely manner and that has led to losses on his behalf.  That’s his case at is best. 

10. Benjamin J then says there is a two-step process to be undertaken in relation to these matters.  First, I have to identify the default in carrying out the obligation in the orders and then I have to define the result of that default and decide whether it’s just and equitable in the light of that result to vary the order.

11. Now the default that’s alleged here is the failure to do all that was necessary in order to transfer the shares in the co-op in India, or the two co-ops in India, to the husband.  The convoluted process that the parties have gone through in the three years now that the orders have been in place makes it very difficult to say whose default it is.  It’s not an easy prospect.  Going through all of that evidence in detail, it is still difficult to say whose default resulted in the delay in transferring the shares in the Indian properties. 

12. It seems on the face of it though, that when I look at all that evidence, the initial default was the wife’s because of the failure to provide properly executed documents in relation to the power of attorney or the powers of attorney.  But there were other defaults and one of the defaults is the default of the husband in paying the money.  That’s a pretty major default. 

13. In the matter of Gull & Gull, which the parties’ representatives are very familiar with and personally familiar with in one case, Cronin J says:  “I don’t have to look at the extent of the default.  The extent of the fault is irrelevant.  All I have to do is decide whether there has been a default proved”.  My view is that there has been a default proved, but it’s on both sides, that the husband hasn’t paid the money and the wife defaulted in doing all that was necessary at the right time in transferring the properties. 

14. So that’s some more things I have to take into account.  I can’t remember whether it was actually pointed out to me as just an illustration, but the case of Gaudry & Gaudry, where the husband demolished the house on the property in Queensland before the orders could be completed, thus diminishing the value of the house, was put to me but that’s a very different case than pertains here.  There has been, on the evidence before me, at least, no diminishing of the value of anything - any property and in fact, one could imagine and it would be difficult to imagine otherwise than that the properties have in fact increased in value over that time.  But I just say that as a matter of side comment.

15. And now we come to Gull & Gull.  Gull & Gull again, was a different case than this.  Gull & Gull was very clear.  There was a particular sum of $502,000 in the bank in India.  The orders required the parties to do all that was necessary to cause that money to be what is referred to as “repatriated” to Australia. 

16. The wife did nothing in order to repatriate those funds and in fact, she did something to prevent the repatriation of those funds which was to obtain an injunction in the Indian courts against those moneys being brought back to Australia. 

17. She appealed the decision of the Family Court, or attempted to, all the way to the High Court.  In any event, after three years the matter came before Cronin J, after orders had been made by Mushin J.  Cronin J said one of the questions that he needed to ask was, what was the husband doing during all of those three years during the appeals and those three years when the moneys were not coming back to Australia?  What was the husband doing?  Well, the husband was doing everything possible in that time.  He was having his solicitors write letters.  He was doing everything he could to get the wife to sign the documents so that the money could come back.  The wife was simply not playing her part. 

18. In that case, it was a very finite thing that the wife had to do.   All she had to do was sign the document to release the moneys and she refused to do that and she refused to do that in circumstances where she didn’t want the moneys to come back to Australia and said so very clearly in her appeal and indeed, I think, in her original documents.  She wanted her half of the money, or her portion of the money that had been awarded to stay in India because she wanted to go back to India. 

19. The orders stated very clearly after trial that the moneys were to come back to Australia.  She then appealed that.  She said again in her appeal she didn’t want all the moneys to come back to Australia, only the husband’s portion.  She said it again in her attempt to appeal to the High Court.  So her position was very clear.  She simply wasn’t going to bring those moneys back, no matter what. 

20. That’s not the position here.  What Cronin J said in his comments about what the husband had done is, I think, pertinent here.  Because what the husband had done here, in order to mitigate the loss, is nothing.  All he had to do, if you look at the way the situation was in 2011, all he had to do was refinance the Property H property and he could have paid out the wife and probably his father as well. 

21. Once his name was removed from the mortgage at Property E, that became a fait accompli.  There was no impediment at all at that time.  But there wasn’t even the impediment of what he thought was the caveat on the Property H property and as I said before, it would have been a simple matter to ascertain whether that caveat had in fact existed. 

22. Now here we come to the crux of the wife’s argument and the husband’s argument in relation to the matter I need to decide today.  In Gull & Gull, Cronin J decided that there was a default.  Clearly, the wife had not brought the money back to Australia and in fact had done everything she could, both in India and in Australia, to stop that happening.  Therefore, there had been a default.  He found that as a result of that default, the husband had suffered losses and then he decided that it was just and equitable to vary the orders.  It was at that point that I see him stating that, having decided that it was just and equitable to vary the orders, that he then needed to find out what the current pool was.

23. What I read from Justice Cronin’s decision is that if the discretion to vary is justified, then the court must decide and consider the husband’s financial position now compared to when the orders were made.  In the Gull case, the house had increased in value.  There was potential interest on the moneys that hadn’t been returned and the husband had incurred costs. 

24. Cronin J also reiterated the clean hands argument in that case, that if the husband comes to the court seeking redress, he must have clean hands.  In that case, the husband did have clean hands.   He had done everything he could and he had complied with all the other orders in order to come to the court to seek a s.79A variation. 

25. In this case, as I’ve said, I don’t think the husband has done everything he could.  He hasn’t mitigated the loss in the way that he might have and in those circumstances, when I go through the two-step process that Benjamin J requires me to do in the case of Carrington, when I look at all the evidence, I can’t imagine the frustration of the solicitors and the parties at the situation they find themselves in and the circumstances that they found themselves in over the last three years. 

26. Nevertheless, when I look at the process I need to go through, I find that there has been a default.  There has been a default by the wife and there has also been a default by the husband and that means that, in my view, the husband does not come to this court with clean hands, therefore, the outcome of that is that while there has been a default and while there have been losses, perhaps, in relation to that default, the husband’s lack of action in paying the money when he did have the opportunity means that I am not satisfied that it’s just and equitable to exercise my discretion in varying the orders. 

27. That means that I do not need to go into the question of what the pool is now in relation to what the pool was then because it is only if I find that it is just and equitable to vary the orders, that that exercise needs to be undertaken. 

28. In all of those circumstances, I find that it is not just and equitable under s.79(1)(c) to exercise my discretion to vary the orders of 1 February 2012 and therefore I won’t make any orders to that effect today. 

29. But the other thing I will say, just as another comment on Cronin J decision, is that there is not anything in that decision that says that if there has been a default and a s.79A application is made, then that reopens the whole case.  It simply doesn’t say that.  It says that if the court is prepared to vary the orders, then the value of the pool needs to be re-examined but that, in itself, does not reopen the entire case.  There is nothing in that judgment that says that.  So that is my decision. 

30. In the matter of Samuel, an application for costs has been made following from a judgment that I have just given in which the orders that I have made are for the dismissal of the husband’s application for a variation under s.79A and for the orders of 1 February 2012 to remain in full force and effect.  Mr Knopf for the wife seeks his client’s costs from 18 February 2014 in the fixed sum of $1500 and he points to a letter written from his firm on that day to the husband’s solicitor making an offer and the offer is, essentially, what was decided today that the husband pay the amount that he is ordered to pay under the orders of 1 February 2012 and that the application be dismissed. 

31. He therefore is seeking an order under a particular subsection of s.117 which is the section of the Family Law Act that deals with costs.  The section makes it very clear in the beginning – (sub-s.1) that, in general, parties are to bear their own costs in Family Law proceedings, but sub-s.2 says that if I am of the opinion that there are circumstances that justify me in doing so, I can, subject to certain matters which I will set out in a moment, make such order as to costs and security for costs as I consider just.

32. Then sub-s.2A sets out all the things that I need to take into account and they are things like the financial circumstances of each of the parties.  The last financial statement that was filed in this matter was filed some three and a half years ago, more than three and a half years ago, so I do not have any information at all about their current financial situation.  I can pretty much guarantee that neither party is in receipt of Legal Aid because Legal Aid does not do property so that is the second thing I needed to take into account. 

33. I need to take into account the conduct of the parties in the proceedings and as Mr Da Gama for the husband has pointed out, I have made findings that both parties have been at fault in relation to the operation and completion of the orders made on 24 March 2011.  The other thing I need to consider is whether the proceedings were necessitated by the failure of a party to the proceeding to comply with the previous orders of the court.  Yes, they were.  That is the whole point of these proceedings, that the proceedings were instituted because the wife had not complied with the previous orders of the court. 

34. I need to consider whether the party to the proceeding has been wholly unsuccessful in the proceedings and you would have to say, with the application being dismissed, that the husband has been wholly unsuccessful in these proceedings.  Then I need to consider 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.  I can also take into account such other matters as the court considers relevant, which pretty much broadens what I can consider. 

35. I take into account all of those matters, the fact that both parties have defaulted, that the proceedings that the husband instituted were necessitated by the default of the wife, that one party has been wholly unsuccessful and there was an offer in writing. But I also take into account the amount of time this matter has taken up for the parties, for their solicitors, for counsel and for this court and it is truly one of the most frustrating cases that I have seen in what is admittedly not a long career on the bench but this is one of the most perplexing in terms of its process after final orders were made. 

36. In all of the circumstances, when I take all of those things into account, I am not going to make a cost order for these proceedings.  I think it is one where both parties are at fault.  They need to bear the consequences of that and I will leave the costs where they lie.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 25 March 2014