Shamon & Shamon (No 4)
[2022] FedCFamC1F 384
•30 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 4) [2022] FedCFamC1F 384
File number(s): SYC 2375 of 2021 Judgment of: REES J Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – COSTS – Where the second respondent was wholly unsuccessful – Second respondent to pay the wife’s costs. Legislation: Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13(4)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Prantage & Prantage (2013) FLC 93-544
Division: Division 1 First Instance Number of paragraphs: 14 Date of last submission/s: 27 May 2022 In Chambers: 30 May 2022 Place: Sydney Counsel for the Applicant: Mr Elachkar Solicitor for the Applicant: Lawbridge Legal and Mediation Services Solicitor for the First Respondent: Barkus Doolan Counsel for the Second Respondent: Mr Apelbaum Solicitor for the Second Respondent: Origin Lawyers ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
First Respondent
MS G SHAMON
Second Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
30 MAY 2022
THE COURT ORDERS:
1.That the second respondent pay the wife’s costs of the application filed 9 May 2022 on a party and party basis as assessed or agreed, such costs to be paid within 30 days of assessment or agreement.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
In this matter I made orders and delivered reasons in relation to an application by the wife, Ms Shamon, seeking orders that the second respondent, Ms G Shamon, withdraw a caveat lodged by her over the property at Suburb P which had been sold by the wife in her capacity as trustee for sale.
The application was filed by the wife on 9 May 2022 and was served upon the second respondent by email on 10 May 2022.
The second respondent, before me, was represented by a solicitor and counsel and did not seek an adjournment of the proceedings.
Whilst the application was only recently served on the second respondent, she has been alerted to the wife's contention since at least 23 March 2022 when a letter was sent to her solicitor advising of the sale of the Suburb P property and asking that the caveat be removed to allow settlement to proceed. The letter proposed that from the proceeds of sale, the sum of $210,000 be placed in a controlled monies account to secure the funds claimed by the second respondent. The letter stated that if no withdrawal of caveat was forthcoming, an application would be brought.
On 4 April 2022, the wife's legal representative wrote to the second respondent's solicitor attaching a copy of the letter of 23 March 2022 and again requesting that the caveat be removed.
On 5 April 2022, the solicitor for the second respondent wrote to the wife's solicitor claiming $222,340.93 including compound interest to the end of June 2022 and declining to remove the caveat, seeking payment of that sum on settlement of the sale. The letter concluded:
If the Parties to the Proceeding do not consent to our client being paid at the time of Settlement, that the Parties to the Proceedings agree to amend Order 3(b) of the Orders such that the sum of $240,000 is to be paid into a controlled money account and the loan be repaid to our client by no later than 1 June 2024.
The wife's solicitors responded on 26 April 2022 making a counter offer to hold $250,000 with the debt to be repaid by 1 June 2025, stating that the matter may not be reached by 1 June 2024.
On 2 May 2022, the second respondent's solicitors wrote to the wife's solicitors advising that, if an application were filed in relation to the caveat, it would be opposed.
The application was opposed and the second respondent was unsuccessful.
The wife now seeks an order that the second respondent pay her costs of the application on an indemnity basis. That application is opposed and the second respondent was directed to file written submissions in relation to costs by 4.00 pm on 27 May 2022.
The application in relation to costs falls to be determined according to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”). The wife relies only on s 117(2A)(e) of the Act, that is, that the second respondent has been wholly unsuccessful.
Appropriately, no submissions were directed by the solicitor for the wife to the issue of indemnity costs. The well-known principles set out in cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and Prantage & Prantage (2013) FLC 93-544 are not enlivened here.
I note that, in written submissions on behalf of the second respondent it is asserted that the wife has not complied with the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.14(4). I assume this to be intended to be a reference to r 12.13(4) which provides:
(4) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
The second respondent will pay the wife’s costs of the application as assessed or agreed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 30 May 2022
0
1
2