TIERNEY & TIERNEY

[2021] FamCA 403

FAMILY COURT OF AUSTRALIA

TIERNEY & TIERNEY [2021] FamCA 403

FAMILY LAW – COSTS – Discretion – where the wife filed an application seeking injunctive relief and disclosure – orders made by consent with respect to those issues – where the husband’s conduct necessitated court proceedings – where there was no issue as to capacity to pay costs – costs ordered on a party/party basis.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Tierney

RESPONDENT: Mr Tierney

FILE NUMBER: MLC 2927 of 2020

DATE DELIVERED: 18 May 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 18 May 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Felkel

SOLICITOR FOR THE APPLICANT: Collards Solicitors

COUNSEL FOR THE RESPONDENT: Mr Thomas

SOLICITOR FOR THE RESPONDENT: Sebastian Rubera & Associates

Orders

1. That the husband pay the wife’s costs of and incidental to her Application in a Case filed 5 May 2021 fixed in the sum of $4,000.

2. That the wife’s Application in a Case filed 5 May 2021 and the husband’s Response to Application in a Case filed 17 May 2021 be otherwise dismissed.

BY CONSENT IT IS ORDERED

1. Until further order the Husband be and is hereby restrained by injunction from doing any act or thing to alienate or apply any of the proceeds of the sale or any sale of the real property situate at and known as B Street, Suburb C, Victoria being the land more particularly described in certificate of title volume … folio … (Suburb C), save by agreement between the parties or Order of the Court.

   4.   That the Respondent Mr Tierney (“the Respondent”) do all acts and things and sign all necessary documents to irrevocably authorise and direct the firm of D Lawyers of F Street, Suburb G Victoria to hold in the legal practitioners trust account the proceeds of sale relating to the sale of B Street, Suburb C Victoria which as at 21^st April 2021 stands in the sum of $599,599.85 and further shall irrevocably authorise and direct the firm of D Lawyers to place the proceeds of sale in the sum of $599,599.85 in a controlled money account in the names of Ms Tierney and Mr Tierney until either an Order of the Family Court directs that the funds be dispersed to Ms Tierney and Mr Tierney or until such time as the funds are dispersed to Ms Tierney and Mr Tierney by agreement of the parties.

2. That the funds held in the National Australia Term Deposit in the sum of $511,812.89 plus interest not be dispersed and be retained in the National Australia Term Deposit until either an Order of the Family Court directs that the funds be dispersed to Ms Tierney and Mr Tierney as Ordered or until such time as the funds are dispersed to Ms Tierney and Mr Tierney by agreement of the parties.

3. That the Respondent Husband provide to H Accountants within 14 days from the date of these Orders a copy of documents requested by H Accountants in the letter of engagement by H Accountants to the parties respective legal practitioners dated 8^th April 2021 and thereafter such other documents that may be requested from time to time by H Accountants in the Respondent Husband’s custody, power or control which have not already been provided with the joint letter of appointment and engagement dated 21^st March 2021.

4. That the Respondent Husband provide to J Company the jointly appointed valuers within 14 days from the date of these Orders any documents requested by J Company to facilitate the preparation of a valuation and reports with respect to the various properties in the Respondent Husband’s custody, power or control which have not already been provided with the joint letter of appointment and engagement dated 21^st March 2021.

5. That the Applicant Wife provide within 14 days from the date of the making of these Orders to the Respondent Husband’s Legal Practitioners all bank statements from the period 12 months prior to the date of separation being 1^st September 2018 to date in relation to the following bank accounts:

   (a)Westpac Banking Corporation Account ending #...55.

   (b)Westpac Banking Corporation Account ending #...13.

   (c)Westpac Banking Corporation Account ending #...11.

   (d)Westpac Banking Corporation Account ending #...99.

   (e)Westpac Banking Corporation Account ending #...83.

   (f)Westpac Banking Corporation Account ending #...06.

   (g)Westpac Banking Corporation Account ending #...06.

6. Within 14 days of the date of the making of these Orders the Husband provide full and frank disclosure to the Wife a copy of each and all documents referrable to any or the sale of Suburb C, including the contract of the sale, statement of adjustments and settlement statement, correspondence passing between K Lawyers and the Husband and correspondence passing between K Lawyers and the Husband’s lawyers.

7. Within 14 of the date of the making of these Orders the Husband provide full and frank disclosure to the Wife of each and all the documents enumerated in the Schedule of Documents attached hereto marked “Schedule A” and not “Schedule B” being the Schedule hereunder.

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 Tierney & Tierney 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 2927 of 2020

Ms Tierney

And

Mr Tierney

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today in a Judicial Duty List upon application made by the wife in her Application in a Case filed 5 May 2021.  That application seeks injunctive relief against the husband in relation to the application of the proceeds of sale of the former matrimonial home.  It also seeks orders for disclosure. 

2. The husband filed a Response to that Application yesterday.  In that Response the husband makes some concessions with respect to the injunctions sought by the wife as to the application of the sale proceeds of the former matrimonial home.  He also seeks orders for some specific disclosure from the wife.

3. The difficulty with the late filing of the Response, which was not filed until 3.14 pm yesterday, is that it has deprived the parties of the opportunity of resolving the dispute without an attendance at Court. 

4. The parties requested that the matter be stood down this morning.  They have negotiated and signed a minute of proposed order, the effect of which is to resolve the outstanding issues in relation to the injunctions and disclosure.  I will make orders as sought by the parties with respect to those issues.

5. The wife now seeks that the husband pay her costs of her application, given that the matter has resolved largely in the terms of her originating application.  The wife seeks that her costs be paid on a party/party basis. 

6. The question of costs is governed by section 117 of the Family Law Act 1975 (Cth).

7. The general rule in relation to costs is that each party to the proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) shall bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the Rules of Court make such order as to costs and security for costs as the Court considers just.

8. Section 117(2A) sets out the matters to be considered by the Court, in determining whether or not costs should be awarded. Those circumstances include:

   a)The financial circumstances of the parties;

   b)Whether any of the parties are in receipt of assistance of legal aid;

   c)The conduct of the parties to the proceedings;

   d)Whether the proceedings were necessitated by a failure of a party to comply with previous orders of the Court;

   e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)Whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings; or

   g)Such other matters that the Court may consider relevant.

9. The submission made on behalf of the wife is that there is no impediment to a costs order being made.  The financial circumstances of the parties are such that they own parcels of real estate.  The orders that I have made in relation to the injunctive relief relate to a sum of in excess of $500,000 to be held.  There is no issue between the parties as to capacity to pay costs. 

10. The central plank of the wife’s application is that it is the husband’s conduct that has given rise to the necessity for the application.  It is common ground between the parties that the wife instructed her lawyers to forward a letter to the husband, seeking an undertaking from him that he not deal with the proceeds of sale of the former matrimonial home unless by agreement between the parties or pursuant to Court order.  It is common ground that that request was made in writing to the husband’s lawyers on 7 April 2021.  It is also common ground between the parties that there was no response provided in respect of that request.  As a consequence, in circumstances where there was no response, the wife was left with little choice than to bring an application seeking injunctive relief restraining the husband from dealing with the proceeds of sale. 

11. Given that background, there is, in my mind, sufficient justification for the application being made and, certainly, the conduct of the husband is a relevant matter in the determination of the costs issue.

12. The husband opposes the costs order.  He says that there were other issues raised in his response, particularly with respect to disclosure, and in light of the other matters raised, the ordinary rule should apply that each party bear their own costs.

13. The difficulty with that submission is that the issues of the wife’s disclosure were not raised until, at the earliest, 3:14pm yesterday.  Therefore, the late filing of the response left the parties with virtually no opportunity to resolve questions around disclosure prior to the hearing listed today.  I do not accept the submission made on behalf of the husband, that those matters should be a barrier to an order for costs.  I am, therefore, satisfied that there should be an order for costs of the application in favour of the wife. 

14. As to quantum, it was submitted on behalf of the wife that she had incurred Counsel’s fees in the sum of $3,850 and solicitor’s fees in the sum of $4,400 in respect of her application.  However, those amounts relate to costs calculated on a solicitor/client basis.  There is no basis for an award of costs on those terms.

15. The wife’s counsel submits that on a party/party basis, counsel’s fees are in the range of $856 to $1979 pursuant to Schedule 3 of the Family Law Rules. Further it is submitted that in accordance with item 204 of the Schedule additional fees have been incurred in the drawing of the wife’s application and affidavit in support, which has a number of annexures. There are also costs associated with the preparation of the brief for counsel.

16. No submission was made on behalf of the husband as to quantum.

17. Having regard to Schedule 3 of the Rules, I am satisfied that an appropriate award of costs is $4,000 and I will make an order that the husband pay the wife’s costs in that amount.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 May 2021.

Associate:

Date:  16 June 2021