Todd and Todd (No 2)

[2016] FamCA 1007

FAMILY COURT OF AUSTRALIA

TODD & TODD (NO 2) [2016] FamCA 1007

FAMILY LAW – Costs ordered on enforcement application

APPLICANT: Mr Todd

RESPONDENT: Ms Todd

FILE NUMBER: MLC 9179 of 2014

DATE DELIVERED: 10 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 10 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr McFarlane

SOLICITOR FOR THE RESPONDENT: Schembri & Co

Orders

IT IS ORDERED THAT

1.The husband’s enforcement application, being the Application in a Case filed 18 October 2016 and the wife’s response thereto filed on 8 November 2016 be and are hereby dismissed.

2.The wife pay the husband’s costs of an incidental to these proceedings fixed in the sum of $6,000 and such payment be made by the husband deducting that amount from the monies which he is required to pay the wife pursuant to paragraph 1(c) of the Order made on 2 August 2016.

3.My reasons for decision be transcribed and when settled a copy be provided to the parties and the original be placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Todd & Todd (No 2) 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 9179 of 2014

Mr Todd

Applicant

And

Ms Todd

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me for a second day because it did not resolve within the required time yesterday. The parties have adjusted the differences between them in relation to the enforcement of final property orders and the only order I need make, and do make, in that respect is to dismiss the husband’s enforcement application which is the Application in a Case filed on 18 October 2016 and the wife’s Response thereto filed on 8 November 2016.

2. The husband also makes an application for costs. Originally, it was drawn in his application as an application for indemnity costs. He has very sensibly abandoned the application for indemnity costs. Indemnity costs are sought far too frequently in this court and can rarely be justified.

3. The primary position under the Family Law Act 1975 (Cth) (“the Act”) is that each party ought bear their own costs. However, where there are circumstances which justify a departure from that position, I can make an order requiring one party to pay some or all of the costs of the other. In my view, that is a threshold step. I have regard to the fact that the application is an enforcement application. I am satisfied on the circumstances of the case that the husband has been required to bring the matter to court in order to perfect the implementation of the final property orders made on 2 August 2016 and he has been successful in doing so.

4. Prior to the matter being called on yesterday, the Court had arranged for a transcript of the proceedings on 2 August 2016 to be produced which was given to the parties yesterday. The transcript shows the discussion between counsel for each of the parties before Justice Cronin at the time the orders were sought, by consent. Essentially, the final property orders required the parties to swap transfers of land in relation to real properties. I am satisfied that properties were not transferred in a timely manner. I do not see that it was the fault of the husband. There were other issues involving keys to a prestige motor vehicle and headrests for the motor vehicle and antiques. They are minor matters, but are indicative of the level of aggravation between the parties in what should have been the simple implementation of routine orders.

5. The major point of contention with which the enforcement proceedings were actually concerned was the implementation of the order for alteration of superannuation interests. Pursuant to the orders, the wife was to resign from the superannuation trustee and she refused to do so. The consequence was that the superannuation split could not be effected. Yesterday, there was discussion between counsel and myself and submissions were made and the matter stood down. Ultimately the matter was resolved on the basis that the documents provided for execution by the wife were signed by her, save that she added a disclaimer. Notably, the wife had not previously been prepared to add a disclaimer in those terms.

6. I am satisfied that there are circumstances in this case which justify me making a costs order against the wife in favour of the husband.

7. Turning to the matters which I am mandated to take into account when deciding what order ought be made, they appear in s 117(2A) of the Act. It is not necessary for an applicant for costs to qualify under each and every part of that subsection. It may be that one factor stands out for consideration more than any other factor. In this case, it is submitted by Ms Dellidis for the husband, correctly in my view, that it is an enforcement application necessitated by the failure of a party to proceedings to comply with previous orders of the court (s 117(2A)(d) of the Act).

8. I do not accept the submissions of Mr MacFarlane, that the husband was equally significantly, or even in a minor way, at fault for non-compliance with the orders. The fact is that the wife filed a Response to the Application in a Case in which she did not seek any orders requiring the husband to do anything other than to undertake an audit in relation to the superannuation controversy. Therefore, any matters of which she does complain in terms of non-compliance by the husband, were not matters she saw fit to make an application about.

9. I take into account the financial circumstances of each of the parties to the proceedings. There are certain assets; they each have a house. It would appear that the wife is going to be unlikely to keep her house once she pays the legal costs of which I have been advised from the bar table. That is most unfortunate and no doubt something which the wife will take up with her solicitors, however, impecuniosity does not represent an immunity against costs, nor a justification for a party resisting compliance with an order or resisting an enforcement application. Nonetheless, I take into account that the wife does not have the ready means with which to pay costs and it appears that any costs that I do require her to pay will need to be deducted from moneys which the husband is otherwise required to pay her.

10. Neither party is in receipt of legal assistance from Victoria Legal Aid.

11. Counsel for the husband has submitted that I ought take into account the conduct of the parties to the proceedings (s 117(2A)(c) of the Act). That subsection is rather more narrowly drawn than counsel’s submissions reflected, but I do take into account the fact that the controversy around the superannuation was one which was live at the time of the final hearing. It was taken into account implicitly in the resolution to which the parties came and the terms of the orders made on 2 August 2016 and there is express reference to it in the transcript of the proceedings. It was not a new issue. If the wife was going to adumbrate these points, the final hearing was the time to do it. Furthermore, it is apparent that the evidence upon which the wife relies in this particular controversy was obtained from practitioners from whom she did not seek advice until well after the final orders were made.

12. I am satisfied that the wife has been either wholly unsuccessful or unsuccessful in these proceedings in the terms of s 117(2A)(e) of the Act.

13. I am satisfied that the wife should pay the husband’s costs of and incidental to these proceedings.

14. The claim was originally made for indemnity costs, but abandoned. Then it was put on the basis of costs which were not calculated in accordance with the Family Law Scale. I am assuming there might be a costs agreement, but I would not know because I was not told, nor have I seen a copy of any agreement. Even if I had, I would be disposed in the circumstances of this case to limit the husband’s right to recover his costs to that which would be paid under the Family Law Scale of costs. In doing so, I am mindful that this will fall short of the costs for which he is liable as a result of these enforcement proceedings, notwithstanding that he has been successful.

15. Doing a rough calculation, it seems to me that counsel’s fees for the three appearances, being the appearance on 26 September 2016 and the appearance on 9 November 2016 and today, are in the vicinity of a total of $4,000. The costs for preparation of the documents and the like, it seems, would come out to me at about $2,000, making a total of $6,000. Neither party takes any issue with that, although I note that Mr MacFarlane stresses that his client does not have the means to pay. However, that is different to contesting the basis upon which costs are to be calculated.

16. I am satisfied that it is appropriate that the wife pay the husband’s costs in the sum of $6,000 and those moneys be paid from the moneys to which the wife is entitled pursuant to paragraph 1C of the final property orders made on 2 August 2016.

17. For the avoidance of doubt that I have given due regard to the submission of Mr MacFarlane for the wife that the husband is significantly in breach of the final property orders because he has not paid the wife the sum of $200,000 pursuant to paragraph 1C, moneys which were due on 3 October 2016. There are two matters that I would say about that. First, if that is the case, the wife’s remedy lies in claiming interest, and second, any such remedy would be dependent upon a proper and fair construction of the orders and it does not appear to me that the proper and fair construction of the orders — particularly having regard to the basis upon which they were entered into as evidenced by the transcript that the parties now have — is that the $200,000 was a standalone payment. It was one of a number of transactions, all of which were to occur on 3 October 2016. To be fair, the order is not expressed precisely in those terms and it might have been expressed inelegantly for those purposes, but it seems that that construction is a fair construction to me.

18. For the above reasons, I make the Order set out at the commencement of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 10 November 2016.

Legal Associate:

Date: 25 November 2016