Steele and Steele & Anor

[2013] FamCA 451

FAMILY COURT OF AUSTRALIA

STEELE & STEELE AND ANOR [2013] FamCA 451

FAMILY LAW – COSTS – Where the second respondent seeks an order that the applicant pay her costs in relation to the Application in a Case filed 10 May 2012 – Where the applicant subsequently filed an Amended Application in a Case in which orders were no longer sought against the Second Respondent and who was no longer included as a party – Where the Applicant commenced proceedings against the Second Respondent which she abandoned but doing so neither promptly nor clearly – Where it is appropriate that an order for costs is made in favour of the second respondent.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Steele

FIRST RESPONDENT: Mr Steele

SECOND RESPONDENT: Ms H

FILE NUMBER: SYC 5370 of 2010

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: By written submissions received:
4 April & 22 April 2013 by the Second Respondent
19 April 2013 by the Applicant

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Battley

SOLICITOR FOR THE APPLICANT: Somerville Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Kenny

SOLICITOR FOR THE FIRST  

RESPONDENT:

Kim Monnox & Associates

SOLICITOR FOR THE SECOND RESPONDENT: Michie Shehadie & Co, Solicitors

Orders

1. That the Applicant shall pay the Second Respondent’s costs of and incidental to the Application in a Case filed on 10 May 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steele & Steele and Anor 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 SYDNEY

FILE NUMBER: SYC 5370 of 2010

Ms Steele

Applicant

And

Mr Steele

First Respondent

And

Ms H

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Second Respondent seeks an order for costs against the Applicant.

2. Ms Steele (“the Applicant”) filed a further Amended Initiating Application on 2 June 2011 seeking orders pursuant to s 79(A) of the Family Law Act seeking to have set aside the consent orders made by this Court on 17 August 2000 in property proceedings between her and Mr Steele (“the First Respondent”). 

3. On 10 May 2012 the Applicant filed an Application in a Case seeking a number of interim orders against the First Respondent and the following order against Ms H (“the Second Respondent”):

   Pending further order, that the First and Second Respondent [Ms H] be restrained from selling, transferring or doing any act or thing so as to cause a variation to the Indonesian property without the prior written consent of the Applicant or pursuant to an order of the Court.

4. On 27 March 2013 the Applicant served the Second Respondent with an Amended Application in a Case which had been filed on 26 March 2013.  The Second Respondent was no longer included as a party and no orders were sought against her.

5. In those circumstances the Second Respondent seeks an order that the Applicant pay her costs in relation to the Application in a Case.

Background

1. In 2006 an entity associated with the First Respondent acquired land in Indonesia.  The First Respondent’s evidence is that that land in Indonesia is now owned by the Second Respondent. 

2. On 10 May 2012 the Application in a Case seeking orders against the Second Respondent was filed.  The Applicant did not serve the Second Respondent with the Application in a Case. 

3. The Application in a Case came before Ryan J on 11 December 2012 when interim orders were made against the First Respondent.  At that time Ryan J directed that the Application in a Case be served upon the Second Respondent.

4. Service was effected and on 30 January 2013 solicitors acting on behalf of the Second Respondent filed a Notice of Address for Service.  On the same day those solicitors requested that the Applicant’s solicitor inform them of the material to be relied upon at the hearing of the Application in a Case which Ryan J had fixed for hearing on 7 February 2013. 

5. On 6 February 2013 the Applicant’s solicitor identified a number of affidavits on which it was said the Applicant would rely. 

6. The Second Respondent and her solicitor attended the hearing on 7 February 2013.  On that day the application was adjourned until 5 April 2013.  Counsel for the Applicant informed the Court that if the matter had not settled by the next occasion only the first order in the Application in a Case would be pressed.  This was an application against an order involving the restraint upon the First Respondent only. 

7. On 11 February 2013 the Second Respondent’s solicitor wrote to the Applicant’s solicitor seeking a confirmation of that advice. 

8. On 26 February 2013, having had no response the Second Respondent’s solicitor again wrote to the Applicant’s solicitor seeking the confirmation of counsel’s statement. 

9. On 7 March 2013 the Applicant’s solicitor replied stating:

   On the basis that the Second Respondent pay her own costs, we confirm that relief is not sought against your client in relation to the Application in a Case filed 10 May 2012.

10. On 27 March 2013 the Applicant served the Amended Application in a Case filed 26 March 2013 to which the Second Respondent was no longer a party.

Discussion 

1. Pursuant to s 117 of the Family Law Act each party is to pay his or her own costs unless the Court is of the opinion that there are circumstances justifying the making of such order as the Court considers just. 

2. There are a number of factors that s 117(2A) requires the Court to take into account.

3. I am not aware of the financial circumstances of the Applicant or the Second Respondent. 

4. So far as I am aware neither is in the receipt of assistance by way of Legal Aid. 

5. The conduct of the parties is relevant. 

6. Upon being joined to the proceedings the Second Respondent made a reasonable request of the Applicant as to the material to be relied upon and the Applicant provided a reasonable response listing the material to be relied upon. 

7. The only inference that can be drawn from that response is that the Applicant intended to pursue her case.  Nothing to the contrary was suggested by the Applicant until at the adjournment of the matter late on 7 January 2013.  Counsel for the Applicant indicated that only one order would be pressed on the next occasion if the matter had not settled.  That order did not affect the Second Respondent.  Counsel did not advert to what the Applicant proposed to do in relation to the balance of the orders sought in the Application in a Case. 

8. After making two requests in writing for clarification of the Applicant’s position the Second Respondent received the conditional response set out above. 

9. Having commenced the proceedings against the Second Respondent and having indicated clearly that it was going to proceed to seek the proposed injunction and identified the material to be relied upon the Applicant put the Second Respondent in the position of having to deal with the orders sought against her.  Thereafter the Applicant equivocated as to whether she would continue to proceed against the Second Respondent. 

10. The Applicant then declined to seek any order against the Second Respondent and removed her from the proceedings.  The Applicant can, therefore, be said to have been wholly unsuccessful.

11. The Second Respondent is not a party to the marriage.

12. The Applicant submitted that the Second Respondent had not been involved in the litigation “per se” and that the Second Respondent was not entitled to costs because “they were not properly before the Court; the mere filing of the Notice of Address for Service does not ground an application for costs”. 

13. I reject that submission. The Application in a Case was served upon the Second Respondent seeking orders against her.  The Second Respondent filed a Notice of Address for Service thus engaging in the proceedings.  The Second Respondent thereafter actively prepared for the hearing and attended at Court on 7 February 2013 on the expectation that the application would proceed on that day and the Second Respondent would be heard in opposition to the order sought against her. 

14. The Second Respondent has actively participated in the proceedings and the fact that neither a response nor an affidavit to be relied upon by her was served by the Second Respondent changes that position. 

Conclusion

1. The Applicant commenced proceedings against the Second Respondent which she abandoned but doing so neither promptly nor clearly.  Taking all these matters into account the appropriate order is that the Applicant pay the Second Respondent’s costs. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 14 June 2013.

Associate: 

Date:  13 April 2013