FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uttar & Rajendra [2023] FedCFamC2F 1609
File number(s): SYC 6488 of 2014 Judgment of: JUDGE BECKHOUSE Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – ENFORCEMENT OF ORDERS – Orders varied under s 79A.
FAMILY LAW – CONTEMPT – Counts not proved – Prima facie case not met.
FAMILY LAW – COSTS – Circumstances justifying order for indemnity costs – Discretion – Costs in a fixed sum awarded.
Legislation: Family Law Act 1975 (Cth) Pts VIII, XIII, XIIIA, ss 79, 79A, 105, 106A, 112AB, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.17, 11.71
Real Property Act 1900 (NSW) s 86
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Kohan and Kohan (1993) FLC 92-340
Division: Division 2 Family Law Number of paragraphs: 133 Date of hearing: 30 November 2023 Place: Wollongong Counsel for the Applicant: Ms Rusiti of Counsel Solicitor for the Applicant: Arch Law (Australia) Pty Ltd Solicitor for the Respondent: Self-Represented Litigant ORDERS
SYC6488 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAJENDRA
Applicant
AND: MS UTTAR
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 DECEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Wife’s Contempt Application filed 11 September 2023 be dismissed.
2.Pursuant to section 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”), Order 4.2 of the Orders made on 30 April 2019 (“the April 2019 Orders”) be varied by the addition of the following words at the end of the Order:
fixed at $4,500 inclusive of GST for professional costs and disbursements.
3.Pursuant to s 79A(1)(c) of the Act, Order 4.4 of the April 2019 Orders be varied as follows:
(a)The addition of sub-clause 4.4.2 in the following terms:
Payment to the Husband of:
(i)the sum of $5,000 in accordance with Order 3 of the Orders made on 5 February 2020;
(ii)the sum of $12,122 being the expenses incurred by him or on his behalf in preparing B Street, Suburb C for sale and providing vacant possession of the property;
(iii)the sum of the sum of $27,502.67 being the additional conveyancing costs and disbursements incurred by him as trustee for sale of the Suburb C property, in excess of those amounts fixed pursuant to Order 4.2 above; and
(iv)the Husband’s costs of an incidental to the Husband’s Application for Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000.
(b)The addition of sub-clause 4.4.3 in the following terms:
Payment to or as directed by D Lawyers for the amount required to be paid to them by the Wife, such that D Lawyers did, on settlement of the sale of the Suburb C property,…
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CaseChat Overview and Summary
The court was required to determine whether Ms Uttar had established a prima facie case for contempt, and if so, whether Mr Rajendra had a valid defence. Additionally, the court needed to consider whether there were circumstances justifying an order for indemnity costs and, if so, the appropriate amount. The court also had to decide whether the existing orders should be varied to reflect the financial circumstances of the parties, particularly concerning the sale of a property and associated costs.
Judge Beckhouse dismissed Ms Uttar's contempt application, finding that she had not met the threshold of establishing a prima facie case. The court varied several orders under section 79A, adjusting the financial obligations of both parties to reflect the sale of a property and associated costs. The court also awarded Mr Rajendra costs in a fixed sum of $100,000, finding that the circumstances justified an order for indemnity costs. The court made specific orders regarding the payment of certain amounts to Mr Rajendra and the discharge of a caveat on the property title.
The court's final orders included dismissing the contempt application, varying the existing orders to account for the sale of the property and associated costs, and ordering the payment of costs in a fixed sum. The court also appointed a Registrar or Deputy Registrar to execute any required deeds, documents, or instruments if either party failed to do so, and stipulated that the defaulting party would pay the other party's costs on an indemnity basis.
Orders
Orders of the court
SYC6488 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR RAJENDRA
Applicant
AND:
MS UTTAR
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
6 DECEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The Wife’s Contempt Application filed 11 September 2023 be dismissed.
2. Pursuant to section 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”), Order 4.2 of the Orders made on 30 April 2019 (“the April 2019 Orders”) be varied by the addition of the following words at the end of the Order:
fixed at $4,500 inclusive of GST for professional costs and disbursements.
3. Pursuant to s 79A(1)(c) of the Act, Order 4.4 of the April 2019 Orders be varied as follows:
(a) The addition of sub-clause 4.4.2 in the following terms:
Payment to the Husband of:
(i) the sum of $5,000 in accordance with Order 3 of the Orders made on 5 February 2020;
(ii) the sum of $12,122 being the expenses incurred by him or on his behalf in preparing B Street, Suburb C for sale and providing vacant possession of the property;
(iii) the sum of the sum of $27,502.67 being the additional conveyancing costs and disbursements incurred by him as trustee for sale of the Suburb C property, in excess of those amounts fixed pursuant to Order 4.2 above; and
(iv) the Husband’s costs of an incidental to the Husband’s Application for Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000.
(b) The addition of sub-clause 4.4.3 in the following terms:
Payment to or as directed by D Lawyers for the amount required to be paid to them by the Wife, such that D Lawyers did, on settlement of the sale of the Suburb C property, discharge Caveat no. … registered by them on the title to that property.
(c) Sub-clause 4.4.2 be re-numbered 4.4.4.
4. Pursuant to s 79A(1)(c) of the Act, Order 4.5 of the April 2019 Orders be varied as follows:
(a) The addition of sub-clause 4.5.3 in the following terms:
(i) $41,814.55 to the Wife in full and final satisfaction of any and all claims the Wife may have against the Husband for unpaid or under-paid interim spouse maintenance, as ordered on 12 December 2015; and
(ii) $12,750 in satisfaction of Orders 4.5.1 & 4.5.2 of the Final Orders
(b) Sub-clause 4.5.3 be re-numbered 4.5.4.
5. Pursuant to section 106A(1) of the Act, in the event that either party refuses or neglects to execute any deed, document or instrument required to give effect to these Orders, a Registrar or Deputy Registrar of this Court is hereby appointed to execute such deed, document or instrument in the name and on behalf of the defaulting party and to do all acts and things necessary to give validity and operation to such deed, document or instrument, AND THAT, pursuant to section 106A(4) of the Act, the defaulting party pay to the other party’s costs of and incidental to the obtaining of a Registrar’s or Deputy Registrar’s execution of such deed, document or instrument on an indemnity basis.
6. The Wife pay the Husband’s costs of and incidental to the Husband’s Application – Enforcement filed 25 May 2022 and these proceedings since the filing of that Application fixed in the sum of $100,000 and the payment will be made in accordance with Order 3(a)(iv) above.
THE COURT NOTES THAT
A. The Wife has requested a copy of the reasons for judgment delivered orally on 5 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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