Sanders and Sanders

[2010] FamCA 947

FAMILY COURT OF AUSTRALIA

SANDERS & SANDERS [2010] FamCA 947

FAMILY LAW – PROCEDURE – Case management

APPLICANT: Ms Sanders

RESPONDENT: Mr Sanders

FILE NUMBER: SYC 8576 of 2007

DATE DELIVERED: 14 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 14 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Paul,

Paul & Paul Lawyers

THE RESPONDENT: In person

Orders

1. That this matter is stood over to the judge who determines the property proceedings between the parties.

2. That all costs are reserved.

Notation:

A.That the husband has made an oral application for costs against the wife.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8576 of 2007

MS SANDERS

Applicant

And

MR SANDERS

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, there was an application mentioned before me and, on a later date, argued.  I reserved my decision and, subsequent to that, before Cleary J. in whose docket the matter now lies, the parties settled the application I had reserved, which was an application for review of orders of a judicial registrar.  The issue before me was whether I should extend time for that review.  Now, the wife seeks indemnity costs of approximately $20,000 from the husband in circumstances where, so far as I can tell, there has been a sale of a house that was the subject of the review, in which the wife received $330,000 and the husband received $58,000. 

2. The property proceedings are to be heard by Cleary J. and the issue is now what assets, apart from the $58,000 and the $330,000 that the parties have respectively received from the sale of the home, are available for division.  Mr Paul, on behalf of the wife, says that the husband’s business assets or assets are worth up to $2.5 million; the husband says that he has nothing.  I think that he says that he is in debt.  In those circumstances, the assets of the parties available for division would be a critical issue in the determination of whether or not a costs order should be made and how much that order should be if one is made against the husband. 

3. As I have and can have no notion of what the assets are, it appears to be completely inappropriate for me, having not decided anything in favour of one party or the other, and having not come to any conclusions of fact about probabilities on the application before me, to decide the costs of that application when the costs sought are substantial and the husband may have substantial funds but may have nothing.  This is a matter which is properly left to Cleary J or any other judge who might decide what the parties’ assets available for distribution are and I shall stand this matter over to the judge who makes that decision. 

4. I note that the husband has made an oral application for costs against the wife and I am in no better position to determine that than I would be to determine the wife’s application for costs.  The circumstances being, therefore, that the amount that I would have to deal with if I did deal with this application would be more in the vicinity of $40,000 rather than $20,000 because I would have to deal with the costs both parties have incurred and, as I have said, I do not know either party’s ultimate financial circumstances. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 14 October 2010.

Associate:     

Date:              26 October 2010