Thor and Dahler and Anor (No 2)

[2015] FamCA 471

FAMILY COURT OF AUSTRALIA

THOR & DAHLER AND ANOR (NO 2) [2015] FamCA 471

FAMILY LAW – COSTS – Application dismissed

Family Law Act 1975 (Cth) s117.

APPLICANT: Mr Thor

FIRST RESPONDENT: Ms Dahler
who appeared by her guardian the Public Trustee in the property proceedings

SECOND RESPONDENT: Cassandra Pullos Lawyers Pty Ltd

FILE NUMBER: BRC 3538 of 2009

DATE DELIVERED: 19 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane (by written submissions considered in Chambers)

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers on the papers

REPRESENTATION

APPLICANT: In person

THE FIRST RESPONDENT: No submissions received

THE SECOND RESPONDENT: No submissions received

Orders

BY WAY OF FINAL ORDER IT IS ORDERED THAT:

1. The Applicant’s Application that the Second Respondent pay his costs of and incidental to the proceedings is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thor & Dahler and Anor (No 2) 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 BRISBANE

FILE NUMBER: BRC3538 of 2009

Mr Thor

Applicant

And

Ms Dahler

First Respondent

And

Cassandra Pullos Lawyers Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant seeks an order that the Second Respondent pay his costs of the property settlement proceedings which culminated when orders were made on 30 April 2015. His submission advances that such costs are in the quantum of $4,340.84.  He arrives at this contention on the basis of his estimate that 30 per cent of total costs incurred between 7 December 2009 and 10 February 2011 (being $14,469.45) related to aspects of the ‘second mortgage problem’.

2. The April 2015 orders require the Applicant to pay the First Respondent a total of $95,566.87.[1]  Of this, $61,707.21 was ordered to be paid directly to the Second Respondent in satisfaction of the First Respondent’s indebtedness to it arising from the provision of legal services. It was ordered that, upon receipt of such payment, the Second Respondent release the mortgage it holds over the former matrimonial home, a property to be retained by the Applicant.

   [1]See the totality of the Orders which also provided for the manner by which the Applicant’s entitlement is to be calculated in the event that the former matrimonial home is sold to satisfy the terms of the Order.

3. The Applicant was also ordered to pay the Applicant’s costs of and incidental to the First Respondent’s application to re-open, with such costs fixed in the amount of $4,800.31.

4. Section 117(1) of the Family Law Act (1975)(Cth) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[2] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.

   [2] Section 117(2) Family Law Act (1975) (Cth).

5. The Applicant is a health professional. His financial circumstances in terms of property ownership are very modest. However, he earns, on average, $3,741.00 per week (about $194,532.00 per annum) gross from his employment at a private hospital. He is in secure employment, having worked at that hospital for the last 17 years or so.

6. There is no relevant evidence about the current financial circumstances of the Second Respondent, an entity through which legal services are provided.

7. Neither the Applicant nor the Second Respondent were in receipt of assistance by way of legal aid. Each appeared on their own behalf at the trial.[3]

   [3]           The Second Respondent was represented by Ms Pullos herself.

8. Nothing in the conduct of the Second Respondent in relation to the proceedings is such as would warrant the making of an order that the Second Respondent pay the Applicant’s costs. The Second Respondent’s involvement in the proceeding did not add materially to the length of the proceedings.

9. The Applicant was wholly unsuccessful in his attempt to have the Second Respondent’s mortgage over the former matrimonial home set aside. He was wholly unsuccessful in his contention that the funds owing by the Applicant to the Second Respondent arising from its provision of legal services should be regarded as a ‘loan’.

10. Having regard to the above, I am not persuaded that the circumstances are such as to justify making an order that the Second Respondent pay the Applicant’s costs. 

I certify that the preceding ten (10) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 19 June 2015.

Associate:     

Date:    19 June 2015