TIPTON & RUGGLES

[2019] FamCA 464

FAMILY COURT OF AUSTRALIA

TIPTON & RUGGLES [2019] FamCA 464

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the respondent seeks a summary dismissal of the application – Where the applicant continually failed to prosecute her case – Where the applicant failed to comply with orders and directions of the Court on multiple occasions – Where the applicant had been allowed multiple extensions of time to comply with orders and directions – Application dismissed for want of prosecution.

FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the matter was not progressing as a result of the applicant’s conduct –Where the applicant was wholly unsuccessful in her application – Where the respondent continued to incur legal fees through the course of proceedings – Application granted – Order made for the applicant to pay 70 per cent of the respondent’s costs on a party-party basis

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Tipton

RESPONDENT: Mr Ruggles (Executor of the Estate of the late Mr Tipton)

FILE NUMBER: SYC 2343 of 2017

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 17 April 2019

REPRESENTATION

FOR THE APPLICANT: Ms Trayhurn appeared in person

COUNSEL FOR THE RESPONDENT: Mr Flaherty

SOLICITOR FOR THE RESPONDENT: Christie Law Solicitors

Orders

1. That the wife’s Initiating Application filed on 13 April 2017 be dismissed for want of prosecution.

2. That the orders made on 31 May 2017 be discharged.

3. That the wife pay to the solicitors for the respondent 70% of the respondent’s costs in these proceedings on a party/party basis.

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 Tipton & Ruggles 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 SYDNEY

FILE NUMBER: SYC 2343 of 2017

Ms Tipton

Applicant

And

Mr Ruggles (Executor of the Estate of the late Mr Tipton)

Respondent

REASONS FOR JUDGMENT

1. This is an Application by Mr Ruggles to whom, for convenience, I shall refer as “the executor”, for orders to dismiss a substantive property application filed by Ms Tipton to whom, for convenience, I shall refer as “the wife”. 

2. The brief background matters are that the wife was born in 1965.  In 1991 she commenced to live with Mr Tipton, to whom, for convenience, I shall refer as “the husband”.  They married in 1994.  They separated in late 2014.  There are two children of the marriage, D, who was born in 2001, who is now almost 18, and X, who was born in 2005 and is therefore 13 years of age. 

3. The wife filed an Initiating Application seeking property orders on 13 April 2017.  Sadly, the husband died a couple of weeks later in 2017.  The husband owned various properties in his own name in Suburb B.  He sold the properties, but died before the sales of those properties were settled.  The executor is the executor of the husband’s estate. 

4. The wife sought orders restraining the executor from dealing with the net proceeds of sale of the properties. Such orders were made on 31 May 2017.  The executor was also appointed legal personal representative for the husband and substituted for the husband as the respondent in these proceedings.  The orders included orders that the net proceeds of sale of the properties be held in trust by the executor pending further order.

5. The executor needed to pay various outstanding liabilities of the estate, so he applied for various interlocutory orders.  On 6 November 2017, McClelland J made orders to enable the estate’s liabilities to be paid.  But his Honour also made orders to put both the wife and the estate in funds to pay the costs of these proceedings.

6. The proceedings first came before me on 3 October 2018.  I noted that the wife had recently changed her lawyers and I adjourned the proceedings to 29 October 2018. 

7. On 29 October 2018, Mr Ward of counsel appeared representing the wife.  I made certain orders to provide for further payments to be made from the net proceeds of sale of the Suburb B properties.  The orders also included an order that the wife return to the executor’s solicitor the Certificate of Title relating to the property at C Street, Suburb B, as well as to sign tax file returns and various other documents relating to the Tipton Retirement Fund. 

8. The proceedings next came before me on 6 December 2018. The wife’s solicitors had filed a Notice of Ceasing to Act. I noted on that occasion that the Certificate of Title had not been handed over, nor had the other documents been signed.  In circumstances where the wife informed this Court that she proposed to engage new solicitors, I adjourned the proceedings to 19 December 2018. 

9. On 19 December 2018, I ordered both parties to file and serve all their evidence-in-chief in readiness for a final hearing, those documents to be filed not later than 1 March 2019.  I adjourned the matter for a readiness check to 4 March 2019.  On that occasion, that is, 4 March 2019, the executor had filed the estate’s material, but the wife had not. 

10. I then permitted the wife an extension of time to file and serve her evidence-in-chief, this being by not later than 12 April 2019.  I adjourned the proceedings to today.  I also noted that the Court had informed the wife that in the event that she, as the applicant, should fail to comply with the orders, that is, the extended time to file and serve her material by 12 April 2019, the executor proposed to ask the Court to dismiss her property application for want of prosecution.

11. The wife appeared in Court today, but she has not filed her evidence-in-chief.  In these circumstances, as counsel for the executor had indicated on the last occasion the executor would propose to do, the executor asks for orders to dismiss the wife’s substantive application. 

12. Having heard representations from the wife now on several occasions and noting that she has done nothing to advance her application since I came into the matter in October 2018, notwithstanding more than reasonable opportunity to do so, I have no confidence whatsoever that the wife has any intention of preparing the case contained in her Initiating Application filed now so long ago. 

13. On the other hand, the estate has had to prepare a Response, an affidavit and other material. The estate has suffered ongoing legal costs by virtue of the wife’s applications for adjournment.  In my view, this has to cease.  If this Court was to dismiss the wife’s substantive application, it is not the case that she would be without any property.  She has interests in properties in Suburb B.  She was a joint owner with the husband in the property at C Street, Suburb B, the husband’s interest passing to her upon his death. 

14. There is also a superannuation fund in the name of the husband which owns property worth a substantial amount.  That superannuation eventually will find its way into the ownership of the wife.  My understanding is that the wife would have assets with a value somewhere in the vicinity of between $3 and $4 million if no orders were made by this Court.  

15. In my view, in all the circumstances, the wife’s substantive property application should be dismissed. 

Costs application

1. In relation to the costs application, the usual position is as set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”). That is, that each party to proceedings shall bear his or her own costs. That is subject to the power given to the Court by subsection 117(2) of the Act to make a costs order if the Court considers it just to do so. But the Court has to have regard to the relevant matters in subsection 117(2A).

2. The first of those matters is the financial circumstances of each of the parties to proceedings.  From what I know of this matter, the financial circumstances may well be fairly similar, but they are not hugely disparate.

3. The next matter is whether any party to the proceedings is in receipt of assistance by way of legal aid and that is not the case. 

4. The next matter is the conduct of the parties to the proceedings in relation to the proceedings, including conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, and other specified matters. This is a relevant consideration. Notwithstanding the Court having ordered the wife to file her evidence, now on more than one occasion, she has failed to do so.  So her conduct in not complying with the Court orders has had the consequence of the matter not being able to be progressed. Yet the respondent has continued to have to come along to Court and sustain costs in those circumstances.

5. The next relevant matter is whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  As I have indicated in my reasons in dismissing the substantive application, the failure by the wife to comply with the Court’s orders is a relevant matter. Again, that has had the consequence of the other side having to continue to come along to Court and continue to sustain legal costs. 

6. The next relevant matter is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  It has to be said that the wife has been wholly unsuccessful in the proceedings. 

7. In all these circumstances, in my view, it is appropriate for this Court to make some order in respect of costs. 

8. In considering those failures on the part of the wife and her conduct in the proceedings, and also not losing sight of the fact that subsection 117(1) provides that each party to proceedings shall bear their own costs, in my view, in all the circumstances, the wife should be required to pay 70 per cent of the estate’s costs.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 April 2019.

Associate:

Date:  9 July 2019