Senfl & Antinoni

[2021] FamCA 468

FAMILY COURT OF AUSTRALIA

Senfl & Antinoni [2021] FamCA 468

File number(s):

DGC 2121 of 2016

Judgment of:

HARTNETT J

Date of judgment:

5 July 2021

Catchwords:

FAMILY LAW – PROPERTY – final property orders made – enforcement application – payment made by Second Respondent – no payment made by First Respondent – costs order sought against First Respondent by Applicant – matter undefended by First Respondent – costs order made against First Respondent and not pursued by the Applicant against the Second Respondent.

Legislation:

Family Law Act 1975 (Cth) ss 117, 121

Family Law Rules 2004 (Cth) r 17.02

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (Colgate-Palmolive) [1993] FCA 536; (1993) 46 FCR 225

Number of paragraphs:

21

Date of last submission/s:

18 May 2021

Date of hearing:

18 May 2021

Place:

Melbourne

Advocate for the Applicant:

Mr Pytel

Solicitor for the Applicant:

McDonald Slater & Lay

Counsel for the First Respondent:

None

Solicitor for the First Respondent:

No appearance  

Counsel for the Second Respondent:

None

Solicitor for the Second Respondent:

No appearance

ORDERS

DGC 2121 of 2016
BETWEEN:	MS SENFL Applicant
AND:	MR ANTINONI First Respondent
AND:	MS VOGEL Second Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	18 MAY 2021

THE COURT ORDERS:

1.That the proceedings in so far as they relate to the Second Respondent, Ms Vogel, be dismissed.

2.That the Applicant forthwith do all acts and things necessary at the Applicant’s expense to remove the following caveats:

a.   caveat no. … over 1 T Street H Town

b.   caveat no. … over 2 T Street H Town; and

c.   caveat no. … over 3 T Street H Town

3.That there be no order as to costs in relation to the Second Respondent.

4.That otherwise all extant applications are dismissed.

5.That the matter be removed from the list of matters awaiting a trial.

6.That pursuant to section 117 of the Family Law Act 1975 (Cth), the First Respondent pay the Applicant’s costs relating to the application in a case dated 22 April 2021 in the sum of $10,000.

AND THE COURT NOTES:

A.That the Second Respondent transferred by electronic transfer the sum of $70 000 on 17 May 2021 to the Applicant lawyer’s trust account for payment out to the Applicant in accordance with order 1(b) of the final orders made on 5 December 2019.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

HARTNETT J:

PRELIMINARY

1. The Applicant and First Respondent commenced to reside in a de facto relationship in 2006. They separated in 2014.

2. An application for final property orders in respect of the de facto relationship between the Applicant and First Respondent was initiated by the Applicant on 15 July 2016. On 5 December 2019, final orders were made by consent. At that time, the proceeding involved three parties: the Applicant de facto wife (“the Applicant”), the First Respondent de facto husband (“the First Respondent”), and a Second Respondent being the sister of the First Respondent (“the Second Respondent”).

3. The orders made by His Honour Justice Wilson on 5 December 2019 were as follows:

   1.The husband pay to the wife the sum of $100 000 (“final payment”) with such payment to be as follows –

   a.  $30 000 by close of business 21 November 2019 (“first payment”); and

   b.  $70 000 by 22 May 2020 (“second payment”).

   2.The payment in paragraph 1(a) of these orders is to be made to the wife’s solicitors McDonald Slater & Lay and is to be held on trust pending final orders being made which provide for all extant applications being dismissed.

   3.The payment referred to in paragraph 1(b) of these orders is guaranteed by the husband’s sister Ms Vogel pursuant to the Deed of Guarantee annexed hereto and marked “A”.

   4.All extant applications including the wife’s application for spousal maintenance are dismissed with no order as to costs.

   5.All previous orders in this proceeding are discharged.

   6.The mention listed on 6 December 2019 at 10am is vacated.

4. The final payment, as provided for in order 1 of the orders of 5 December 2019, being a total payment of $100,000 from the husband to the wife, was not made in accordance with the order or at all, in respect of the payment due under order 1(b), prior to the institution by the Applicant of this proceeding.

5. The sum of $30,000 had been paid by the husband to the wife, by payment made to the wife’s solicitor, McDonald, Slater & Lay, with such funds initially held on trust before payment out to the wife. The wife did not depose as to the date on which that payment was made, but that part of the order is not a matter which is a subject in the application now before me. 

6. Before me was an application in a case filed by the Applicant on 22 April 2021. That application sought orders as follows:

   1.That pursuant to the Orders made by His Honour Justice Wilson on 5 December 2019 File No. DGC 2121/2016:

   (i)The First Respondent within 7 days of these Orders being made, pay or cause to be paid to the Applicant the sum of $70,000.00 (“the Payment”);

   (ii)In the alternative, that the Second Respondent as guarantor for the Payment within 7 days of these orders being made, pay or cause to be paid to the Applicant the sum of $70,000.00;

   (iii)Interest at the Family Court rate on the amount outstanding from the date of default to the date of payment.

   2.Pursuant to rule 20.59(2) of the Family Law Rules 2004, that the orders sought in 1(ii) and 1(iii) are enforced against the Second Respondent as if the 2^nd Respondent had been a party to the case.

   3.That the Payment in paragraph 1 is to be paid to the Applicant’s solicitor’s McDonald Slater and Lay trust account by way of electronic bank transfer at:

   (i)McDonald Slater & Lay

   (ii)BSB: …

   (iii)Account No: …86

   (iv)Reference: …

   4.That the First Respondent pay the Applicant’s costs of this Application.

   5.Such further or other order as the Court deems fit.

7. The Applicant relied upon an affidavit of evidence sworn by her on 9 April 2021.

8. Service of the application and supporting affidavit was effected upon the First Respondent on 13 May 2021, and upon the Second Respondent on 9 May 2021.

9. The First Respondent has failed to respond to the application and placed no evidence before me. The First Respondent did not appear at the hearing of this application.

10. The Second Respondent likewise placed no material before me but did instruct a solicitor to negotiate with the Applicant’s solicitor to ultimately agree to the orders as made by the Court on the 18 of May 2021. The Applicant did not pursue her claim for an interest payment.

    CONSIDERATION

11. Pursuant to paragraph 1(b) of the final property orders, the First Respondent was to pay to the Applicant the sum of $70,000 and by 22 May 2020. The payment was guaranteed by the Second Respondent as referred to in order 3 of the orders made on 5 December 2019. 

12. Until 17 May 2021, the payment of $70,000 had not been made to the Applicant by either of the First Respondent or the Second Respondent. Despite the Applicant’s solicitors making numerous efforts to engage the First Respondent, including conversations had with him, some in person, and correspondence forwarded to him, the First Respondent declined to inform the Applicant as to when the payment of $70,000 would be made by him to the Applicant. The solicitor for the Applicant spent considerable time trying to negotiate a satisfactory outcome for the Applicant in his endeavours to avoid further litigation between the parties, and thus to reduce the incurring of further legal costs by his client. He will not be paid for that time, having not sought any payment from his client. In particular:

    (a)the Applicant’s solicitor emailed the First Respondent on 29 May 2020, and again, on 19 June 2020. He requested that the $70,000 payment be made to the Applicant in accordance with the orders. He advised the First Respondent that if such payment was not made an application for enforcement of the payment would be made against both, the First Respondent and the Second Respondent, the Second Respondent being a  guarantor for the payment;  

    (b)on 11 November 2020, the solicitor for the Applicant again wrote to the First Respondent advising that unless the outstanding payment was made within seven days, enforcement proceedings would be issued. The First Respondent replied, relevantly, that independent legal advice had been sought by him and that the matter would be dealt with in the new year.

13. Following the making of the final orders, and until 17 May 2021, the Applicant did not receive the total monies due to her from either the First and/or Second Respondent. In the intervening period since 5 December 2019, the Applicant has undergone surgery; has not been able to work; has taken up accommodation in a shelter for battered women; and remains very ill. This litigation, and her tenuous financial position, has occasioned great stress to the Applicant.

14. Following the issue and service of the application, discussions were had between the Second Respondent and the Applicant in an attempt to resolve the matter. The First Respondent did not engage in such discussions but rather sought an adjournment of the proceeding by correspondence addressed to the Court. That course was not consented to by the Applicant or by the Second Respondent. The First Respondent sought no orders from the Court. The Second Respondent responded to the application by engaging the services of Mr Brendan King, solicitor, and he, together with the solicitor for the Applicant, negotiated a resolution of the matter as between the Applicant and Second Respondent. That outcome was the payment of the $70,000 owing to the Applicant pursuant to the orders of 5 December 2019 (order 1(b)) with such payment being made by the Second Respondent on 17 May 2021. On that date the monies were deposited in the trust account of the solicitors for the Applicant.

15. By way of compromise, the Applicant did not seek a cost order as against the Second Respondent.

16. The First Respondent failed to participate in the proceeding. He was not present in the courtroom on the hearing of the matter.

    Costs

17. The Applicant sought a costs order against the First Respondent in the sum of $12,000. 

18. Whilst pursuant to section 117 of the Family Law Act 1975 (Cth) (“the Act”), ordinarily each party to a proceeding will pay their own costs, in this instance the Applicant has sought an order for costs and as against the First Respondent. The Court, in the exercise of its discretion, determined that the Applicant should succeed in that application.

19. The Court has had regard to those matters as set out in section 117(2A) of the Act. In respect of those matters as relevant, the Court, finds as follows:

    (a)the financial circumstances of each of the parties to the proceedings is limited at the present time.  The First Respondent, being an undischarged bankrupt, and the Applicant being in receipt of Centrelink benefits, namely a disability pension;

    (b)neither party is in receipt of assistance by way of Legal Aid.  The Applicant is responsible for the payment of her solicitor’s fees as a private litigant. The Respondent incurred no legal fees. He did not engage solicitors nor participate in the proceeding;

    (c)the conduct of the parties to the proceeding is relevant to the extent that the wife instructed her solicitor to seek to achieve a resolution of this matter prior to instituting proceedings. Numerous attempts were made to achieve that end with no success, the First Respondent failing to meaningfully engage with the wife’s solicitor. Ultimately, after the issuing of proceedings, negotiations were had between the Applicant’s solicitors and Second Respondent’s solicitors to achieve a resolution of the proceeding, as between them. The Applicant was required to expend considerable funds, in the sum of $12,000 as claimed, in prosecuting the enforcement proceeding.  The conduct of the First Respondent was one of non-engagement and delay;

    (d)the proceeding was necessitated by the failure of the First Respondent to comply with previous orders of the Court and thereafter, to the extent that the Second Respondent failed to comply, the Second Respondent;

    (e)the Applicant was wholly successful in her enforcement application and by negotiated outcome, achieved the payment that she had sought from the First Respondent for an inordinate period, and also sought from the Second Respondent; and

    (f)otherwise the Court considered it relevant that the Applicant was without the funds to which she was entitled for almost twelve months before payment was made by the Second Respondent. The First Respondent’s non-compliance with orders of the Court remains outstanding. 

20. The Applicant’s financial, emotional and physical circumstances are very difficult. The pursuit of the payment of $70,000 has been very taxing for her. There has been no co-operation by the First Respondent who himself made no contribution to the “second payment” (as defined in the 5 December 2019 orders) that was required to be made to the Applicant. The proceeding was undefended by the First Respondent. On the totality of the matters referred to above, the Court is of the view that a cost’s order as against the First Respondent should be made. In the exercise of that discretion, the Court notes the quantum as claimed by the Applicant was in the sum of $12,000. The Court has determined that a costs order should be made as against the First Respondent but in the sum of $10,000 on a consideration of the work required to be done post the issuing of proceedings, and the current financial difficulties of the First Respondent.

21. The fact that the First Respondent remains an undischarged bankrupt does not preclude the making of a costs order.[1] The First Respondent lives in an apartment in Suburb E, drives a motor vehicle 1, is employed as a professional at T Company and has some connection with V Business, albeit that it is likely that none of these assets and/or interests are owned by him. He nevertheless is able to earn income as an undischarged bankrupt and has an ability to make payments over time to the Applicant both before and after his discharge from bankruptcy.

    [1] Colgate-Palmolive Co v Cussons Pty Ltd (Colgate-Palmolive) [1993] FCA 536; (1993) 46 FCR 225 at [234].

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett .

Associate:

Dated:       5 July 2021