STANFORD & DENT

[2015] FamCA 930

FAMILY COURT OF AUSTRALIA

STANFORD & DENT [2015] FamCA 930

FAMILY LAW – COSTS – Interim orders – application by the wife for costs incurred as a result of the husband’s failure to comply with previous orders – where the husband concedes that an order for costs is appropriate – dispute as to the quantum of costs – where the wife seeks costs of both counsel and an instructing solicitor – where the wife claims that it was reasonable for counsel and an instructing solicitor to appear given the complexity of the property proceedings – costs ordered in accordance with Schedule 3 of the Family Law Rules 2004 (Cth)

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Stanford

RESPONDENT: Mr Dent

FILE NUMBER: MLC 5100 of 2015

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: Mr Larkins

SOLICITOR FOR THE RESPONDENT: Rankin & Co

Orders

IT IS ORDERED

1. The husband pay the wife’s costs of this day fixed in the sum of $2,775.

BY CONSENT

1. All extant applications for interim relief be otherwise dismissed.

2. The wife’s Initiating Application filed 5 June 2015 be listed for a Conciliation Conference on 3 February 2016 at 11.00am.

3. The time for compliance by the husband with paragraph 1 regarding financial disclosure, and paragraph 5 of Order made on 8 July 2015 be extended until 4.00pm Tuesday 20 October 2015.

AND THE COURT NOTES

A.In the event of the husband’s default of paragraph 4 herein, the wife intends to seek that her Application for final property settlement proceed on an undefended basis, and the requirement for a Conciliation Conference be dispensed with.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanford & Dent 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 MELBOURNE

FILE NUMBER: MLC 5100 of 2015

Ms Stanford

Applicant

And

Mr Dent

Respondent

REASONS

1. This matter comes before me in a Judicial Duty List.  The parties have largely compromised the applications that were listed before me today.  Further, it has been conceded by the husband that it is appropriate that I make a costs order this day in respect of the wife’s costs thrown away due to the husband’s failure to comply with orders previously made. 

2. The background to the dispute is as follows.  On 8 July 2015 orders were made by Macmillan J requiring that the husband provide specific disclosure and that he file a response, financial statement and affidavit.  Those orders still have not been complied with. It is against that backdrop that it is conceded by the husband that a costs order should be made.  The only issue standing between the parties is the question of quantum of costs.  The wife seeks the sum of $3,200.  It is conceded by the husband’s counsel that a costs order in an amount of $1,600 would be appropriate. 

3. In order to understand the claim for costs it is necessary to consider the background to the case. 

4. The parties were in a relationship of some 10 years standing.  There are three children of the relationship; four year old twins and a child aged 15 months.  The parties during the course of their relationship conducted a real estate business, which included a rental roll.  It is admitted by the husband that during the relationship he suffered an addiction to cocaine.  It is further admitted by him that during the relationship he has misappropriated significant funds from the business.  The husband is currently the subject of a police investigation arising from alleged fraud by him in the conduct of the business.

5. As a result of those matters there have been claims by creditors of the business.  The wife has, with the assistance of her sister, settled at least one of those claims and I am told that the wife has borrowed a sum of approximately $260,000 in order to finalise those matters.  There are continuing County Court proceedings.  A judgment debt has been entered in the County Court of Victoria against the husband with respect to a claim for some $300,000.  As a result of that judgment debt a bankruptcy petition has now issued against the husband. 

6. It is said on behalf of the wife that given the complex nature of the property proceedings, particularly having regard to issues with respect to the parties’ creditors, the police investigation and issues as to whether or not the husband will be declared bankrupt, it is appropriate that counsel be engaged to appear on her behalf and further, that it is appropriate that there be an instructing solicitor at court to assist counsel.  I am satisfied, having regard to that history, which is not challenged by counsel for the husband, that these issues before the Court are of such complexity that it is appropriate that counsel be briefed, and that an instructing solicitor be present.

7. I was told that the claim made by the wife is calculated on the basis that counsel’s fees for today are $2,200 and that the instructing solicitor has been here for a period of two and a half hours, her hourly rate being approximately $460. 

8. Schedule 3 of the Family Law Rules 2004 (Cth) sets out an itemised scale of costs. The costs allowable for a lawyer’s work on an hourly basis is $230.78 per hour. In the circumstances of this case I am satisfied that that is an appropriate amount to be applied in the calculation of the fees for the instructing solicitor.

9. Part 2 of the schedule provides full costs allowable in respect of counsel’s work.  Item 205, which addresses the amounts claimable at hearings or trials, provides a range of between $1,873 and $2,753 per day.  The amount claimed by the wife in respect of her counsel is $2,200.  I will allow that amount.  Accordingly, I will fix the wife’s costs in the sum of $2,775

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 October 2015.

Associate:

Date:  6 October 2015