SELWOOD & SELWOOD

[2015] FamCA 634

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD [2015] FamCA 634

FAMILY LAW – costs of conveyancing – jurisdiction in question – more practical means of determining dispute – costs to respondent

APPLICANT: Ms Selwood

RESPONDENT: Mr Selwood

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 29 July 2015

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 29 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: D S Family Law

Orders

1. The order is discharged staying the application of paragraph 23(d)(i) of the Order of 18 July 2014.

2. The wife’s Application in a Case filed on 1 June 2015 is dismissed and removed from the active pending cases list.

3. Within twenty-one [21] days from today Withnalls Lawyers pay the husband’s costs of and incidental to the dismissed application today fixed in the sum of Five Hundred Dollars [$500.00].

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 359 of 2010

Ms Selwood

Applicant

And

Mr Selwood

Respondent

EX TEMOPRE REASONS FOR JUDGMENT

1. This is a matter which relates to a dispute between Withnalls, as lawyers, not as lawyers for the wife, but as conveyancers for both the husband and the wife pursuant to a previous order.  As such it is a matter which is not normally dealt with in this jurisdiction, although I accept that in certain limited circumstances there may be the jurisdiction of the Court.  A part of the overall settlement between the husband and wife, one of the orders is for the sale of the property.  It is a question of whether it is appropriate for this Court, if the jurisdiction did exist, to exercise that jurisdiction in a dispute about the amount of conveyancing fees to be charged.

2. The parties agreed that Withnalls Lawyers would be the conveyancers and the argument before the Court now is an argument in relation to $100 of the allocation of $200, half of which would be paid by the husband.  It appears, on the face of it, that the wife has incurred $2200 of costs arguing about $100.  As I have said in remarks in the Court, that can only be described as ridiculous. 

3. The husband’s affidavit says, in paragraph 9, that he has applied for mediation in relation to the Legal Profession Act in the Northern Territory, and if that was not successful, the next appropriate step would be for a costs assessment.

4. The capacity of this Court to determine the reasonableness or the appropriateness of the $200 charged is not clear and nor is the jurisdiction clear.  What is clear, however, is that there is a better jurisdiction available to the parties to mediate the dispute if it continues and for the assessment of the costs to be carried out (being the costs between the husband and Withnalls Lawyers, not an ongoing dispute between the husband and the wife which would fall within the jurisdiction of the Family Court of Australia). 

5. I propose, therefore, to dismiss the application.  I have already made it clear that I consider the matter should be resolved before any further litigation is carried out.

6. The response seeks that the application is dismissed and that the wife or the wife’s solicitors pay the husband’s costs of and incidental to this application.

7. In relation to the question of costs of this application in this jurisdiction, the Court proposes to make an order that Withnalls pay the husband’s costs of and incidental to this application which has been dismissed.  The affidavit and response have been filed in this jurisdiction and counsel have attended to have the matter argued this morning.  I consider, even taking into account the submissions in relation to the timing of the various steps taken by the husband, that it is appropriate for the husband to recover some of the costs and that the figure of $500 proposed by the counsel for the husband would be an appropriate matter taking into account the scale of fees, the  response and affidavit filed and the attendance of counsel today. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 July 2015.

Associate: 

Date:  31 July 2015