Theo and Theo

[2009] FamCA 1111

FAMILY COURT OF AUSTRALIA

THEO & THEO [2009] FamCA 1111

FAMILY LAW – COSTS – Remitted hearing – Non-appearance – Proceed on an undefended basis – Wife’s costs application dismissed – Consequential orders – Husband awarded costs of this application

APPLICANT: Ms Theo

RESPONDENT: Mr Theo

FILE NUMBER: BRF 8564 of 2001

DATE DELIVERED: 29 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 29 October 2009

REPRESENTATION

THE APPLICANT: No appearance by the Applicant

COUNSEL FOR THE RESPONDENT: Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT: Carter Farquar Lawyers, Brisbane, Qld

Orders

1. That the Wife’s application for costs of and incidental to the property proceedings heard and determined on 22 December 2005, together with reserved costs orders made in her favour dated 20 June 2002, 26 June 2002, 2 September 2002, 30 September 2003, 6 January 2004 and 10 December 2004, be dismissed.

1. That the Wife forthwith pay to the Husband the sum of $200,000.00.

1. That the Wife pay to the Husband the costs of and incidental to this costs application fixed in the sum of $15,902.00.

1. That interest accrue in relation to the said payments referred to in this order as and from today’s date.

IT IS NOTED

a.That the said sum of $200,000.00 is payable to the Husband as a consequence of the Court’s determination that the previous payment by the Husband to the Wife in the sum of $200,000.00 on account of costs is a payment to which the Wife is no longer entitled as a consequence of the Court’s determinations and orders this day.

b.The Court is satisfied that the Wife has had proper notice of these proceedings from time to time and that she has chosen not to prosecute her case in this Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 8564 of 2001

Ms Theo

Applicant

And

Mr Theo

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In this matter, the parties were parties to property proceedings which were heard and determined by me over an extended period, culminating in a judgment on 22 December 2005. 

2. At that time, I made orders in relation to the substantive property proceedings so as to distribute to the parties 70 per cent of the property pool to the husband and 30 per cent to the wife.  I had determined that the estate had a value of just over $2 million and that the wife’s entitlement was just over $600,000.  The wife retained some of the property identified in the property pool, and I determined that the wife’s further entitlement was of the order of $497,000 and noted at that time that there was invested capital of the sum of $528,000 available to meet the wife’s claim for property settlement.

3. At the same time, I considered applications of each of the parties in relation to costs and determined that the husband should pay to the wife the sum of $200,000 in part payment of her costs incurred.  The husband appealed against the decision made, but before doing so paid to the wife the sum of $169,000, which was the balance of the $200,000 payable after the wife was enabled to receive $31,000 from the invested capital, in part discharge of her entitlement to the $200,000 for costs.

4. The husband’s appeal was originally against both the substantive determination and the costs orders, and in the end he proceeded only in relation to the costs orders.  That appeal was heard on 26 February 2007 and the Full Court handed down judgment on 16 March 2007, and the relevant orders made by the court included:

   (1)That the appeal be allowed;

   (2)That the application of the wife for costs be remitted to Jordan J for reconsideration;  and

   (3)That the money paid to the wife pursuant to paragraphs 1 and 2 of the order on 26 December 2005 on account of costs and in the sum of $200,000 be held by the wife on trust for the husband and the wife until the further hearing and determination of the application.

5. It is unnecessary, at this time, to explore the reasons given by the Full Court in relation to that decision, but it is clear from the terms of the orders made that the only question that was remitted back to me was a determination of any outstanding applications by the wife for costs.

6. This matter had a long history and there were orders for costs made prior to the trial, and there were other costs reserved to the trial, and one of the difficulties identified by the Full Court in relation to the approach adopted by me at trial was that I did not address those previous orders and the reserved costs in the global approach I adopted.  As I said in preliminary discussion with counsel, the consequence is that I am unable to entertain any applications in relation to previous costs orders.  I am only able to entertain applications of the wife in relation to her reserved costs and her costs in relation to the substantive trial.  I am only able to otherwise entertain the husband’s application for costs of and incidental to this costs application remitted by the Full Court. 

7. I am also satisfied that it remains open to me to consider questions relating to the previous payment by the husband of $200,000 which was pursuant to my costs order which has been overturned.  Accordingly, the matter of the wife’s costs has been remitted back to this Court as and from 16 March 2007. 

8. The husband makes application for dismissal of all outstanding costs applications of the wife for want of prosecution, having earlier satisfied me that he had successfully addressed the lower threshold question of whether or not the matter should proceed on an undefended basis. 

9. In considering the application for dismissal for want of prosecution, I take account of the fact that, subsequent to 16 March 2007, the wife retained solicitors and a barrister, and they appeared before me on two subsequent mentions designed to settle the process to be embarked upon in the remitted hearing and to address the directions for that trial.  The wife, through her legal representatives, last appeared in this matter some two and a half years ago on 24 May 2007.

10. Directions have been made in this matter from time to time and I am satisfied that the husband and his legal representatives have made endeavours to locate and serve the wife from time to time.  I have been satisfied on this and previous mentions that the wife has absented herself from this country and moved overseas.  She has, thereafter, failed to participate in this process which has dragged on for two and a half years since her last appearance.  She has failed to appear at any subsequent mentions.  She has failed to file any material, either in compliance with my directions from time to time or at all.

11. She has been placed on notice by previous orders and directions that her failure to comply with directions, may result in this Court proceeding on an undefended basis.  Notwithstanding those matters, she has continued to absent herself and has failed in every sense to properly prosecute her application for costs.

12. Some of the delays have been occasioned by matters beyond any responsibility of the wife.  Nevertheless, the passage of time has run in a way which enables me to conclude, firstly, that the wife has absolutely no intention of participating in any further legal process in this Court in relation to this matter and, secondly, that the husband should not be exposed any longer to the prospect of this litigation remaining unresolved.

13. In the circumstances, I propose, therefore, to dismiss all outstanding applications for costs by the wife.  The consequence of that order is to render the previous payment made by the husband to the wife as a payment to which the wife is not entitled. 

14. The Full Court recognised that the wife may lose entitlement to all or some of that sum by its order designed to secure the funds in the sum of $200,000 pending the rehearing of the costs application.  She has shown no interest in protecting that entitlement or of prosecuting a case which may enhance her entitlement to all or some of those funds. 

15. I am satisfied that it is appropriate that I therefore make an order designed to have returned to the husband the sum paid by him to the wife pursuant to my earlier determination and orders rejected by the Full Court.

16. The evidence has established that, in all probability, the wife now resides permanently in Norway.  The capacity of the husband to enforce this order in Norway is an issue that he may have to grapple with in the future and, clearly, this Court does not have any capacity to bind legal process in Norway.  That is a matter now which may be the subject of any relevant treaties or the like between Australia and Norway, or the pursuit of remedies, including some international.  They are not matters upon which I can make any determination.

17. I am satisfied that the husband should also be entitled to receive his costs of and incidental to this application.  He has been put to the costs of defending the wife’s application, notwithstanding that she has not seen fit to prosecute her applications.  In the end, the wife’s applications have been struck out and, in that sense, the husband has incurred those costs unnecessarily.  Obviously, the husband is facing the same difficulties in relation to enforcement of that sum.

18. The husband seeks an order for interest, and I am satisfied that I should make an order that interest run from the date of this order.  The husband’s application for interest is one only made on 12 June 2009 by his amended application, and whilst it is one thing to observe that the wife may have chosen to remain inactive in the face of uncertainty about the status of the $200,000, I am satisfied that I should not make an order for interest which was not, as it were, one of the risks the wife was apparently facing in her non-attendance up to 12 June.  I am satisfied that I should, in all the circumstances, adopt the more traditional approach to interest that it should run from the date of the judgment, and that will be from today’s date.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  20 November 2009