SITWELL & SITWELL

[2012] FamCA 1023

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL [2012] FamCA 1023

FAMILY LAW – ENFORCEMENT – Final property Orders made by Consent on 19 October 2011 – Application to enforce compliance with those Orders in respect of a self-managed superannuation fund and the transfer of a parcel of land to the husband – Application for appointment of a trustee to sell a business entity – Business entity the subject of a contract for sale which requires completion or termination prior to trustee appointment application being heard

FAMILY LAW – PROCEDURAL – Respondent sought an adjournment in respect of the application to appoint a trustee to sell the business entity and the superannuation fund – Adjournment application granted for the Respondent to obtain legal advice on the various matters

FAMILY LAW – COSTS – Applicant sought costs thrown away that day in respect of the adjournment application being granted – Weight placed upon the conduct of the Respondent during the proceedings – Relevant considerations set out in subsection 117(2A) of the Family Law Act 1975 (Cth) taken into account – Costs granted as assessed – Amount of costs sought (as assessed) deemed appropriate in the circumstances of the case

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Sitwell

RESPONDENT: Mr Sitwell

FILE NUMBER: PAC 5769 of 2010

DATE DELIVERED: 27 November 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 27 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT:

Ms Kelly

Champion Legal

SOLICITOR FOR THE RESPONDENT: Self-represented Litigant

Orders

1. That within seven (7) days of this date the husband shall cause to be lodged with the Land Property Management Authority, a Memorandum of Transfer and appropriate Title Deeds so as to enable the property known as and situate at B Street, Town C and being the parcel of land contained in folio identifier … to be registered into the husband’s sole name.

2. I note that in the event the husband does not comply with Order 1 above, the wife intends to relist this matter and shall seek costs in respect to that issue.

3. That the matter stands adjourned until 2.15 pm on Tuesday 11 December 2012.

4. That any further material to be relied upon by either party shall be filed and served by no later than close of business on Friday 7 December 2012.

5. That the husband shall pay to the wife or, as she may in writing direct, the costs thrown away this day in the sum of $4,800. That said sum is to be paid within two (2) months of this day. 

6. I note that upon the husband providing appropriate funds to the wife’s solicitors, then those solicitors shall produce a transcript of the proceedings in the Local Court in relation to the Apprehended Violence Order sought against the husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell 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 PARRAMATTA

FILE NUMBER: PAC 5769 of 2010

Ms Sitwell

Applicant Wife

And

Mr Sitwell

Respondent Husband

REASONS FOR JUDGMENT

Introduction & Background

1. This matter was before me today in respect of orders sought by way of enforcement, or to ensure compliance with, Consent Orders made in this Court on 19 October 2011.  The relevant final Orders for consideration today were firstly, and perhaps most significantly, Order 12.5, which dealt with the sale of a business entity.  The wife seeks that she be appointed trustee for sale of that business entity.  However, the factual situation is clearly this:- there is a contract for sale entered into between the husband and wife as vendors and the husband as purchaser.  That contract was dated 8 June 2012, and carries a condition that the completion date is to be 42 days after the contract date.

2. That date for completion has well and truly passed.  As I understand it, whilst a notice to complete (which has become an exhibit before me) has been issued, it has not been complied with.  Time under that notice has expired.  No further steps have been taken at this stage to terminate the contract.

3. Accordingly, it seems to me that, as a matter of law, I am unable to make any order effecting the appointment of a Trustee for further sale of the business entity until the contract of the 8 June 2012 has been concluded, either by completion or termination.

4. In addition, the wife seeks orders by way of implementation or enforcement in relation to Order 9 of the Consent Orders of 19 October 2011, which deals with a self-managed superannuation fund, and in respect of Order 5 of 19 October 2011 dealing with the transfer of a parcel of land to the husband.

5. So far as the real estate is concerned, the husband has agreed that he wishes to complete that purchase, and I have already made orders, which will be reproduced as part of these orders, for the husband to do certain things and to make material available to the appropriate New South Wales authority to register that property in his name.

6. The husband says that he is not prepared to execute a large bundle of documents forwarded to him in respect of the superannuation fund because (a) he needs to seek legal advice, but (b) in any case, he is not prepared to deal with or accept that which is put to him by Business H for reasons he has advanced, but which I will not reproduce.

7. So far as the sale of the business entity is concerned, the husband has sought an adjournment.  I note that it has been put to him that the solicitors for the wife, through counsel, have indicated that the wife is – to use the words as I understand them of the appropriate conveyancing situation – ready, willing and able to complete the contract.  The husband says that he cannot; that he needs legal advice.  There is some dispute about how long he has known about what is actually sought and what his remedies might be. 

8. I am prepared to grant the adjournment.  However, I am not prepared to grant it for the length of time the husband seeks.  I will allocate a date of 11 December 2012 at 2.15 pm to try and advance this matter.

9. Having determined that the matter is to be adjourned, an application has now been made by the wife’s counsel that the husband pay the costs of the wife thrown away today.  I have been given an assessment of those costs, totalling an amount of $4,580.

The Law to be Applied

1. Applications for costs in this Court are governed by section 117 of the Family Law Act1975 (Cth). Subsection (1) indicates that, subject to later sections, each party to proceedings under this Act shall bear his or her own costs. It has been decided in cases, particularly the case of Penfold v Penfold[1], that if there are circumstances that so justify it, a Court may make an order for costs.  Those circumstances need not be special or exceptional.

   [1] (1980) 144 CLR 311

2. If I am to make an order for costs, I must take into account the matters set out in subsection 117(2A) of the Act. The first of those matters is the financial circumstances of each of the parties (subparagraph (a)). The husband tells me that he is in strained financial circumstances, which he attributes to the actions of the wife and other members of his family. He tells me that an amount of money, which has been made available to him, has been, as a matter of what he describes as common sense, earmarked so it cannot be applied for costs ordered against him. However, I am not satisfied that the situation in this matter is such that the husband is impecunious such that he cannot fund an order for costs.

3. I am satisfied that the wife is, in all probability, in a better financial position than the husband, but to my mind, that, of itself, does not indicate that no order for costs should be contemplated.

4. Neither party, I am told, is in receipt of legal aid (subparagraph (b)).

5. I take into account the conduct of the parties to the proceedings (subparagraph (c)).  In my view, that is the crux of this present matter.  The husband, it seems to me, has left things until very late, notwithstanding his protestations that until some benefactor put him in funds, he was unable to obtain legal advice.  I am satisfied that the matter has had to be adjourned today because of his lack of preparation and, with respect, his unwillingness to endeavour to engage in a process whereby this matter might be completed today. 

6. Under the heading of conduct, I find that it is the conduct of the husband, in the manner in which he has conducted himself today, that is the principal reason why an award for costs might be made.

7. Subparagraph (d) is also a matter for consideration, and that is, whether the proceedings were necessitated by the failure of a party to comply with previous orders.  That is certainly the case in respect of the real estate and the self-managed superannuation fund.  The husband seems to be – when it suits him to do so – able to treat the final Consent Orders as only a part of the finalisation of this matter.  On several occasions he has referred to the “real proceedings”.  I do not know what it is that he refers to in this regard.

8. I am not able to say that either party has been wholly unsuccessful (subparagraph (e)) in the sense that the very success that the husband achieved in obtaining the adjournment is one of the basic reasons why I propose to order costs against him.

9. In my view, under subparagraph (g), other matters that the Court considers relevant, I am alarmed that this matter is, in fact, taking the course that it is.  Consent Orders were made over a year ago.  They were not Orders imposed by the Court upon either party.  The Court made orders in accordance with an agreement the parties reached for themselves.

10. Having said this, it seems the matter cannot be concluded today so as to ensure that justice is done to the husband.  I do take into account the length of time this matter has taken and the manner in which the husband has conducted himself today.  I take into account the fact that the husband has done nothing proactive prior to today.

11. I am satisfied an order should be made for the husband to pay the wife’s costs of today.

12. I am satisfied that the amounts claimed, $1,980 for the solicitor and $2,600 for counsel for a total of $4,580, are entirely appropriate.  The husband, whilst invited, made no comment or submission as to the quantum of the costs claimed.

Orders

1. I order that the husband pay to the wife, or as she may in writing direct, for her costs thrown away this day, the sum of $4,580.

2. I order that the said sum be paid within two months of this date.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 27 November 2012.

Legal Associate:      

Date:    7 December 2012