Sozzi and Sozzi & Ors

[2020] FamCA 1049

FAMILY COURT OF AUSTRALIA

SOZZI & SOZZI AND ORS [2020] FamCA 1049

FAMILY LAW – PRACTICE AND PROCEDURE – Review of the decision of a Senior Registrar – Where the Senior Registrar ordered costs against the applicant wife – Where the application for costs should be reserved to final hearing.

Family Law Rules 2004 r. 11.02

APPLICANT: Ms Sozzi

1^ST RESPONDENT: Mr Sozzi

2^ND RESPONDENT: Mr B Sozzi

3^RD RESPONDENT: Ms C Sozzi

FILE NUMBER: SYC 3111 of 2019

DATE DELIVERED: 1 December 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 3 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITORS FOR THE APPLICANT: Felicio Law Firm

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Sundar

SOLICITORS FOR THE 1^ST RESPONDENT: SB Family Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Ms Druitt

SOLICITORS FOR THE 2^ND RESPONDENT: Wallbanks

3^RD RESPONDENT: Ms C Sozzi

Orders

1. Orders 1 and 2 made by the Senior Registrar on 19 August 2020 are discharged.

2. The costs incurred by the second respondent Mr B Sozzi between 19 December 2019 and 24 July 2020, as against the applicant wife, are reserved to the final hearing of these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3111 of 2019

Ms Sozzi

Applicant

And

Mr Sozzi

1^st Respondent

And

Mr B Sozzi

2^nd Respondent

And

Ms C Sozzi

3^rd Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Sozzi and Mr Sozzi are former spouses who are engaged in litigation in relation to alteration of property interests.  The respondents, Mr B Sozzi and Ms C Sozzi, are the brother and sister of the husband respectively.

2. The husband, Mr B Sozzi and Ms C Sozzi are the registered proprietors as tenants-in-common in equal shares of a property known as D Street, Suburb F ("the property").  By way of a Further Amended Initiating Application filed on 24 July 2020 the wife made claims for equitable relief in relation to this property in the following general terms:

   ●        proprietary estoppel;

   ●        express trust;

   ●        constructive trust;

   ●        equitable damages.

   For present purposes, I express no view as to the merits or otherwise of these claims by the wife.

3. On 17 July 2019, the first return date of the proceedings, the Senior Registrar was informed that the wife alleged that the husband's siblings hold their interests in the property upon trust for him.  The Registrar ordered as follows inter alia:

   1.The Applicant must file and serve by 4pm on 7 August 2019 any Amended Initiating Application adding all necessary parties and fully and properly pleading any equitable cause of action against those other parties.

   2.These proceedings are transferred to the Family Court of Australia at Sydney.

   3.All applications are listed before a Registrar at 10.30am on 20 August 2019 for case management directions.

   …

1. On 10 December 2019 a Registrar ordered inter alia as follows:

   THE COURT ORDERS:

   ...

   2.That in order to provide procedural fairness to the Second Respondent and to otherwise properly plead the bases of her case, within 28 days of the date of these orders the Applicant provide to the Second Respondent’s solicitors and to the other parties:

   a.Full particulars of the Applicant’s claim that the Second Respondent has transferred to the Respondent or has otherwise disposed of or alienated the Second Respondent’s legal and/or beneficial one third interest as Tenant in Common in all piece or parcel of land situate and known as D Street, Suburb F being the whole of the land in Certificate of Title Folio Identifier No. … (the “Suburb F Property”) to the Applicant and/or the Respondent;

b.True and clear copies of all documents, instruments, writings and things evidencing the Applicant’s claim that the Second Respondent has transferred to the Respondent or has otherwise disposed of or alienated the Second Respondent’s legal and/or beneficial one third interest as Tenant in Common in Suburb F Property to the Applicant and/or the Respondent.

3.That within 28 days of the date of these Orders the Applicant file and serve any Amended Application and updating affidavit upon which she intends to rely.

4.That subject to the Applicant’s compliance with Order 2 above, the Second Respondent file and serve his Response to the Amended Application filed 8 August 2019 and his supporting Affidavit on or before 28 January 2019.

5.That the other Respondents hereto be granted leave to file and serve any amended Response or updating Affidavit on which they intend to rely on or before 28 January 2019.

1. On 25 May 2020 the Senior Registrar ordered as follows:

   1.Those parts of the Application in a Case filed by the Wife on 20 August 2019 which seek a remedy against the second Respondent Mr B Sozzi are dismissed pursuant to Rule 11.02(2)(a).

   2.It is noted that Order 1 does not prevent the Applicant Wife from bringing a further application seeking remedies against the 2^nd Respondent on condition that, at the time of filing any such application, she also files a document which fully and properly pleads each cause of action upon which each remedy is founded.

   3.The application for costs by the second Respondent is reserved to 10am 28 July 2020.  In the event that the Applicant Wife has not filed a further application complying with order 2 herein then the Court is likely to proceed to hear and determine that application for costs on that day.

2. On 24 July 2020, the wife filed a Further Amended Initiating Application in which she set out all of her claims for equitable relief.  The wife's fresh application was thus filed within the time prescribed by the orders and directions of 25 May 2020.

3. On 19 August 2020 the Senior Registrar made the following orders:

   1.That the Applicant wife pay the costs of Mr B Sozzi as agreed or assessed on an indemnity basis in relation to the Orders sought by the Applicant against him up to 24 July 2020.

   2.Payment of costs as agreed or assessed in relation to Order 1 be stayed until the conclusion of the Final Hearing.

   3.Any application seeking payment of the costs ordered pursuant to Order 1 herein by Ms Felicio, as the legal representative of the Applicant wife, be reserved until the conclusion of the Final Hearing.

   4.        The costs of the husband are reserved.

4. On 26 August 2020 the wife filed an Application for Review of the Orders made by the Registrar on 19 August 2020.  By an Outline of Case dated 23 July 2020 Mr B Sozzi purported to seek the following orders:

   1.That the Applicant Wife and her Applicant's solicitor Ceu Felicio jointly and severally pay the Second Respondent's costs of and incidental to these proceedings assessed upon an indemnity basis in the sum of $42,056.40.

   OR IN THE ALTERNATIVE

   2.That the Applicant's solicitor Ceu Felicio pay the Second Respondent's costs of and incidental to these proceedings assessed upon an indemnity basis in the sum of $42,056.40.

   OR IN THE ALTERNATIVE

   3.That the Applicant Wife pay the Second Respondent's costs of and incidental to these proceedings assessed upon an indemnity basis in the sum of $42,056.40.

   OR IN THE ALTERNATIVE

   4.That the Applicant Wife and her solicitor Ceu Felicio jointly and severally pay the Second Respondent's costs of and incidental to these proceedings as agreed or assessed.

   OR IN THE ALTERNATIVE

   5.That the Applicant's solicitor Ceu Felicio pay the Second Respondent's costs of and incidental to these proceedings as agreed or assessed.

   OR IN THE ALTERNATIVE

   6.That the Applicant Wife pay the Second Respondent's costs of and incidental to these proceedings as agreed or assessed.

Consideration

1. On 25 May 2020 the Senior Registrar dismissed "Those parts of the Application in a Case filed by the wife on 20 August 2019 which seek a remedy against the secondRespondent Mr B Sozzi".  This Order stated expressly that those parts for the claim of the wife were dismissed pursuant to Rule 11.02(2)(a).  This sub-rule provides as follows:

   11.02(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)       dismiss all or part of the case;

   (b)       set aside a step taken or an order made;

   (c)       determine the case as if it were undefended;

   (d)       make any of the orders mentioned in rule 11.01;

   (e)       order costs;

   (f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

2. Clearly, the wife failed to comply with direction 2 of 10 December 2019.  This direction required that the wife provide full particulars of her claim against the 2^nd Respondent and copies of all documents and instruments upon which she relied in support of this relief.  The wife's claim was not pleaded in full and/or particularised until she filed her Further Amended Initiating Application on 24 July 2020.

3. The directions of the Senior Registrar of 25 May 2020 specifically allowed the wife an opportunity to file a further application by which she sought relief against the second respondent.  The directions contemplated that any such application should be filed by 28 July 2020.  As noted, the wife filed her Further Amended Initiating Application on 24 July 2020.

4. The hearing before the Senior Registrar on 25 May 2020 addressed, inter alia, the apparent merits of the claim of the wife against the second respondent.  Those parts of the wife's application, however, were dismissed solely in reliance upon Rule 11.02(2)(a) which deals with non-compliance.  That being so, the perceived merits of the wife's claims against the second respondent played no part in the dismissal of those prayers for relief.

5. It appears to me that the relevant period for consideration as to whether the wife should pay any of the costs of the second respondent is 10 December 2019 to 24 July 2020.  The proceedings are ongoing and the second respondent remains a party as a result of the wife's Further Amended Application of 24 July 2020.  It is true, as properly was conceded by her counsel, that the wife continues the proceedings against the second respondent at her own risk as to costs.  The fact remains that there is a prospect that the wife ultimately will be successful against the second respondent.  The prospect of such success simply cannot be excluded at this stage of the proceedings.

6. In my view, the most appropriate course is that the costs of the second respondent should be reserved to the final hearing.  The course which the proceedings will take in the future cannot be predicted with any degree of certainty.  In particular, there is a prospect of adverse findings against the second respondent in terms of his dealings with the Suburb F property.  In summary, it seems to me to be premature that there be any order for payment of the costs of the second respondent by the wife at this relatively early stage in the proceedings.

7. Having reached that conclusion, it is unnecessary that I determine whether any costs should be paid on an indemnity basis.  Again, it appears to me that a determination as to the appropriateness or otherwise for payment of costs on an indemnity basis is premature at this early stage of the proceedings.

8. For abundant caution, I make the same observations as to the purported application of the second respondent that the wife's solicitor pay all or any part of his costs.  This application, too, should await the finalisation of the proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 1 December 2020.

Associate: 

Date:  1 December 2020