SUKOVSKY & VERANOVSKY

[2019] FamCA 178

FAMILY COURT OF AUSTRALIA

SUKOVSKY & VERANOVSKY [2019] FamCA 178

FAMILY LAW – ENFORCEMENT – Section 106A – where wife says she will sign a settlement document but then refuses or fails to do so – Order for the husband to sign in her name.

FAMILY LAW – COSTS – where the wife was on notice as to the risks of a costs order – indemnity costs ordered.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sukovsky

RESPONDENT: Ms Veranovsky

FILE NUMBER: MLC 4249 of 2017

DATE DELIVERED: 25 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Davey

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

1. That pursuant to Section 106A of the Family Law Act 1975 the husband MR SUKOVSKY be authorised to execute, in the name of the wife, any document that is required by her to be executed in order to complete the settlement of the sale of the real property known as and situate at B Street, Suburb C including but not limited to the Commonwealth Bank of Australia Discharge of Mortgage Authority.

2. That the wife pay the husband's costs in the amount of $7,020 with such sum to be deducted from the payment otherwise to be paid to the wife pursuant to Paragraph 1(e) of the Orders made 21 February 2019.

3. That the application in a case of the husband filed 21 December 2018 and the response to an application in a case of the wife filed 14 January 2019 be and are hereby dismissed.

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 Sukovsky & Veranovsky 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 MELBOURNE

FILE NUMBER: MLC 4249 of 2017

Mr Sukovsky

Applicant

And

Ms Veranovsky

Respondent

REASONS FOR JUDGMENT

1. This is the return of matter that was adjourned from last week.  It is a simple matter in which the property of the parties is to be sold but what was needed was the execution of documents relating to a discharge of mortgage to the Commonwealth Bank.  A solicitor for the wife attended the last hearing but had not been able to get instructions.  After some discussions took place, an order was made that the wife sign the document by the following afternoon at 3 pm.  The wife has not signed the document and that prejudices the potential settlement of the sale. 

2. Quite properly, the solicitor for the wife indicates that she has not been able to speak with the wife but that really is an extension of what was happening last week as well.  It is proper, therefore, for the solicitors on the record for the wife to withdraw and I will formally note that they do so and they can file a notice of ceasing to act in due course. 

3. The original application sought an order that the registrar sign documents under section 106A of the Act. I see no reason why the husband should not be the agent for the purposes of this exercise to obviate the necessity for the court to be further involved.

4. This is a straightforward exercise. I propose, therefore, to make an order under section 106A of the Act that the husband is authorised to execute in the name of the wife any document that is required to complete the settlement of the sale of B Street, Suburb C including, but not limited to, the Commonwealth Bank discharge.

5. Last week there was a further application made for costs and I indicated that I was hesitant to make an order based upon the history to that point, but I also said that in the event the wife failed to comply with the orders that I then made, not only would costs almost certainly follow the event, but that they would most likely be on an indemnity basis.  What had been feared has now occurred. 

6. Section 117 of the Act provides that in proceedings under the Act each party shall bear their own costs unless there are justifiable circumstances to depart from that principle.  In circumstances where solicitors were on the record, the wife had the opportunity to attend, but failed to do so, the fact that I was told she was agreeing to execute the document, seems to be to be a justifiable circumstance to depart from the principle here.  Taking into account that indemnity costs are the exception rather than the rule, this is a case where I think it is exceptional because the husband had to come back again, the rule can be departed from. 

7. The question here is that before any order for costs can be now made the Court has to contemplate the matters under s 117(2A) of the Act.  There is no suggestion here that the parties or either of them is impecunious.  The conduct of the wife leaves me with a very grave concern as to the position she is adopting.  Her view always was that the husband had to provide her information before she would cooperate.  That is not the way in which this Court works.  There are no Legal Aid considerations here and it might be said that the wife has been wholly unsuccessful.  In the circumstances, it is appropriate to make an order for costs on an indemnity base.  I rely on the solicitor for the wife’s affidavit and I fix the costs at $7020.    

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 February 2019.

Associate: 

Date:  27 March 2019