Starkey and Starkey and Anor (No. 3)

[2009] FamCA 793

FAMILY COURT OF AUSTRALIA

STARKY & STARKEY AND ANOR (NO. 3) [2009] FamCA 793

FAMILY LAW – COSTS – Case guardian

Family Law Act 1975 (Cth)

APPLICANT:

Mr Starkey

By his Case Guardians
Mr C and Mr T

1^st RESPONDENT: Ms Starkey

2^nd RESPONDENT: D Starkey

FILE NUMBER: LEC 245 of 2007

DATE DELIVERED: 15 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Forrest

SOLICITOR FOR THE APPLICANT: SP Lawyers

SOLICITOR FOR THE FIRST RESPONDENT: Mr Hunter
Somerville Laundry & Lomax

SECOND RESPONDENT In person

Orders

1. The further hearing of this matter be adjourned before Justice Murphy at 9.30am on 1 September 2009, in the Brisbane Registry of the Family Court of Australia.

2. The wife pay the costs of the husband, through his case guardians, of and incidental to the Application in a Case filed by the husband on 16 June 2009 such that the costs, to be agreed or failing agreement, taxed.

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel.

IT IS NOTED THAT in respect of the order for costs, that this matter commenced shortly after 9.30am and concluded at 6.20pm today.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED that publication of this judgment under the pseudonym Starkey & Starkey and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT

1. That the Wife shall file an application for Final Orders within four weeks of the date of this order and at the same time the Wife shall provide to the Husband’s solicitors full written particulars of the grounds upon which she is asserts she is entitled to relief pursuant to section 79A of the Family Law Act.

2. That as and by way of enforcement of the order made by this Court on 24 March 2009:-

   (i)That all of the parties’ rights, title and interest in the business, Starkey Company, including all of its assets, (“the business”) hereby vest in Mr John Maxwell, solicitor, upon trust for the sale of such business as soon as possible on such terms and conditions as shall be determined by Mr John Maxwell;

   (ii)That the operation of paragraph 2(i) hereof is suspended until the close of business on 24 July 2009;

(iii)That notwithstanding other provisions of this order, each of the parties shall do all that is necessary including signing all documents necessary to enter into a contract for the sale of the business to Mr and Mrs U at the sum of $900,000 or such other sum as may be agreed between the parties and the Us, and should there be an exchange of contracts in respect of the sale of the business to the Us before the close of business on 24 July 2009, then the operation of paragraph 2(i) hereof is further suspended until the close of business on 31 August 2009.

1. THAT IN THE EVENT that the sale of the business to the Us contemplated by paragraph 2(iii) hereof does not settle by 31 August 2009 then by way of further enforcement of the order made 24 March 2009, and in respect of the wife’s application pursuant to s.79a of the Family Law Act:-

   (A)Then paragraph 2(i) of this order becomes operative and upon the settlement of the ultimate sale of the business by Mr Maxwell as trustee, the net proceeds of sale (after payment of the usual costs of sale of such a business and the professional costs and outlays of the trustee himself) are to be invested by him on trust for the parties pending resolution of the matters remaining in dispute between them by order of this Court either by consent or after the determination of the Wife’s application pursuant to section 79A of the Family Law Act.

   (B)That the Husband’s application for interest on the sum of $131,000 pursuant to the provisions of s.117B(1) of the Family Law Act for the period of time between 1 April 2009 to the date of payment of the amount of $131,000 is adjourned to 9:30 am on 1 September 2009.

(C)That the Wife’s application pursuant to section 79A of the Family Law Act is adjourned for mention at 9:30 am on 1^st September, 2009.

1. THAT IN ANY EVENT

   (a)That each of the parties will do all things and execute all such documents required to give full effect to the terms of this order and in the event that either party refuses or neglects to do anything necessary or to execute any document that is necessary to give effect to the terms of this order then the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is appointed to do such things and execute all such documents necessary to give validity and operation to the thing or document and an affidavit of the solicitor for the requesting party shall be sufficient proof of such refusal or neglect.

   (b)That any of the parties hereto be at liberty to provide a copy of this order to the Office of the Protective Commissioner and/or the Guardianship Tribunals of NSW and Queensland.

(c)That the Wife pay the Husband’s costs of and incidental to this application to be fixed by agreement or as taxed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC245 of 2007

MR STARKEY

By his Case Guardians: Mr C and Mr T

Applicant Husband

And

MS STARKEY

1^st Respondent Wife

And

D STARKEY

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The husband's case guardians make application for costs in light of the orders made by me today. 

2. The general rule in proceedings in this Court is, of course, expressed by s 117 of the Act; namely that each of the parties pay their own costs. 

3. That prima facie position can of course be altered in the circumstances of particular cases by the exercise of the Court's discretion.

4. Having taken into account the relevant matters prescribed by s 117(2)A of the Act it seems to me that, firstly, the wife can be said to have been wholly unsuccessful in these proceedings.  Secondly, insofar as s 117(2)A(g) is concerned, it is relevant for me to take into account that the sale of the business has been mooted as a significant issue by the case guardians acting on behalf of the husband for some considerable period of time and, in that respect specifically, a prospective sale to persons known as Mr and Mrs U was contemplated. 

5. Notwithstanding those machinations and overtures by the case guardians on 24 March 2009 final orders for settlement of property pursuant to s 79 were made which contemplated the transfer of the business from the husband to the wife. 

6. It now transpires, on the wife's own case, that this cannot take place for various reasons, attributable to the nature of Government requirements and the like attaching to the business.  The wife therefore accepts that the business needs to be sold, a position contended for for some time by the case guardians prior to the making of those orders.

7. More particularly, the wife now seeks, in effect, an indulgence with respect to enforcement of the orders so as to allow contract negotiations with Mr and Mrs U - that is the same people who were earlier mooted as purchasers by the case guardians - to bear fruit or otherwise.  It seems to me that is a highly relevant matter in respect of the making of an order for costs.

8. It seems to me that the matters just described and might come under the heading of "The Conduct of the Parties to the Proceedings" in relation to the proceedings within the meaning of sub-para (c) of the section. 

9. Although the wife is an elderly lady and the circumstances at the heart of these proceedings are sad and come at the end of a very lengthy relationship, I am not persuaded that the financial circumstances of the wife or any other circumstances in relation to this application are such so as to outweigh the matters referred to which, in my view, weigh in favour of discretion of the Court being exercising favour in the making of an order for costs.

10. I accordingly determine to order that the wife pay the costs of the husband through his case guardians of and incidental to this application.

11. And I order that the costs so ordered be as agreed or taxed.

12. In respect of the order for costs I will include, formally, a notation on the order that the matter commenced shortly after 9.30 this morning and concluded at 20 past 6 this evening.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31 August 2009