Sathra and Sathra

[2007] FamCA 286

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA [2007] FamCA 286

FAMILY LAW - COSTS - Jurisdiction and generally

APPLICANT: MR SATHRA

RESPONDENT: MRS SATHRA

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 7 March 200

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 7 March 2007

REPRESENTATION

APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT: MR MANNING

Orders

1. That the husband file and serve a bill of costs in taxable form within one month from today.

2. That the husband have leave to file at the same time as he files and serves the above mentioned bill of costs, an application that the said costs be taxed.

3. That each party file any s79A application, affidavits and/or other supporting material which they seek to make or rely upon within one month from today.

4. In the event that either party files a s79A application, the husband is excused from having to comply with the order 1.

5. That the matter is stood over for mention before me on a date to be fixed after one month from today.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5076  of 2003

MR SATHRA

Applicant

And

MRS SATHRA

Respondent

REASONS FOR JUDGMENT

1. It is said that these proceedings are the result of a mistake.  I am by no means sure that there has been such a mistake.  It seems, from what I have been told, that the orders over which the proceedings before me now are being fought may have been intentional.

2. What happened is that, in September last year, the parties settled their property proceedings.  Millions of dollars in net assets were involved.  The only relevant term of the settlement that I need specify is that there was an order that each party pay his or her own costs, although it is necessary to know that, by the other orders, both parties went away from Court with very substantial assets, although not necessarily any cash.  It is probably also of relevance to know that the parties' costs for their own lawyers were very substantial. 

3. However, there had been previous interim proceedings between the parties.  In some of them, the husband had been ordered to pay the wife's costs.  On those orders being made, he paid those costs.  At least $18,000 was involved. In one instance he made an application before Collier J., and, on determination of that application, his Honour ordered the wife to pay four fifths of the husband's costs.  In all proceedings up to and including the final hearing, both parties were represented by lawyers.

4. The wife now says that, when the final orders were made, she understood the costs order to, in effect, extinguish or discharge her liability under Collier J's order.  When I say the wife says this, what I mean is that the wife submits this.  There are no affidavits from either party currently before me.  I have been told by the wife's solicitor that that is what the wife believed.  I have not asked, and he has not said, whether he gave any advice to the wife, what it was or what he believed the effect of the final costs order was on Collier J's order.  However, the husband tells me that not only did he believe that Collier J.'s order was unaffected by my orders, his lawyers advised him to that effect.

5. In my opinion, that advice was correct.  I could not, without a specific consent order, make an order affecting Collier J's orders.  I am not an appellate Court and I do not have the power to discharge, defeat or set aside his Honour's orders except by consent.  However, if the parties agree to such a term, I could make such an order which would be binding on them, or I could accept an undertaking not to enforce Collier J's order, by way a more secure or a safer alternative.  No such order was contained in the terms.  There was no order discharging, setting aside or in any other way specifically referring to Collier J's order.

6. Ultimately, the husband attempted to obtain payment of his Honour's order.  While self‑represented, he made an application to a registrar.  The registrar was of the view that the husband had failed to itemise a bill of costs, so he could not obtain any payment without an itemised bill of costs having been taxed.  Neither of those things were done. The husband also applied to the registrar to tax the bill of costs.  She, in effect, found that there was no proper bill of costs which had been served on the wife.  She, therefore, dismissed the husband's order and made arrangements to have the matter re-listed before me, presumably because she was of the view that I had some power to either make a declaration or make an order under s.79A or, alternatively, correct the original orders under the slip‑rule; that is, the original orders I made.  I think she was correct.

7. I certainly have no doubt that, if both parties have been in agreement about what the costs orders should have said and by unintentional error what they should have said was not achieved, those orders could have been corrected under the slip‑rule.  I certainly have no power to make a declaratory order about the meaning of the orders, but I do have power to set aside the order that each party is to pay its own costs, which I made, by consent. This power could be pursuant to s.79A.  However, I am in no position to do that.  The parties are not ready.  There have been no affidavits filed.  The only things I know are what I have been told from the bar table.  Further, the husband - I think, sensibly - realises that, if such an application is to be continued, he should re‑engage his solicitor.

8. It is of great concern to me that, in a case involving millions of dollars, there is the prospect of all of the property orders being set aside for the sake of the costs order which Coller J made.  I am told, and accept that, roughly, it involves about $13,000.  Public policy alone might require the Court to refuse to exercise its discretion to set aside orders under s.79A because of the discrepancy between the amount in issue and the likely further costs to the parties which would result from setting aside all the property orders.  However, the Court could, if the facts would allow it, simply set aside the costs order and, in effect, allow a hearing in relation to the issue of costs. But that too could be an exercise which will result in expense which is not warranted in view of the amount in issue.

9. At this stage, I should do nothing.  I certainly have no power to set aside Collier J's order.  The case is not at a stage where I could proceed to hearing it pursuant to s.79A.  The facts are, as I have been told, such that it is highly unlikely to be a case where both parties agree what the orders should have been, and agree they made a mistake. Therefore, there is no room for action pursuant to the slip‑rule.  In all the circumstances, the only thing that is appropriate for me to do is to stand the matter over and give directions for its further preparation.  The further preparation, of course, should only be, in my opinion, related to an s.79A application, or to allow the husband to proceed properly to obtain a taxing of his costs and, therefore, to attempt to enforce them.  That is the course I propose to take.

10. It is not, in my opinion, appropriate at this stage to dismiss any of the applications of the husband, because, in effect, he has no applications.  The application before Registrar George has been dismissed.  It is proper for me to permit the husband leave to apply to have his costs taxed, and it is also proper for me to permit both parties the opportunity to file any other application they seek, particularly in relation to s.79A.  That is what I propose to do.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SATHRA & SATHRA