Vu & Ton (No 6)
[2023] FedCFamC1F 374
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vu & Ton (No 6) [2023] FedCFamC1F 374
File number(s): MLC 7739 of 2019 Judgment of: JOHNS J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – ENFORCEMENT OF ORDERS – where costs order made 16 March 2023 – where the de facto husband has not paid the outstanding amount due pursuant to costs order – where de facto wife seeks the enforcement of costs order – where the de facto husband claims he has outstanding debts – where there are funds available to the de facto husband in his control to meet the costs order– order for de facto husband to pay outstanding costs Legislation: Family Law Act 1975 (Cth) s 90RD Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 27 April 2023 Place: Melbourne Counsel for the Applicant: Mr Ambrose Solicitor for the Applicant: Kennedy Partners Solicitor for the Respondent: Ms Formica, Lander & Rogers ORDERS
MLC 7739 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VU
Applicant
AND: MS TON
Respondent
order made by:
JOHNS J
DATE OF ORDER:
27 APRIL 2023
BY CONSENT THE COURT ORDERS THAT:
1.The respondent have leave to make an oral application for the applicant to pay the outstanding costs order from funds held on trust for him by his solicitors on the record.
2.The applicant forthwith do all such acts and things and sign all necessary documents to authorise his lawyers on record to pay by 4:00pm today the sum of $90,000 from the funds held on trust on his behalf in satisfaction of the costs order made on 16 March 2023 to the trust account of the lawyers for the respondent:
Lander & Rogers trust Account
BSB: …
Account Number: …04
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vu & Ton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This matter comes before the court today for a case management hearing in relation to the future listing of the parties’ outstanding property applications.
The matter has a long history before the Court. It had a threshold hearing before Kari J as to the question of whether or not the parties shared a de facto relationship, it being the applicant’s contention that no such relationship existed, whilst the respondent maintained that the parties’ did share a de facto relationship such that would invoke this Court’s property jurisdiction.
The hearing of the threshold issue proceeded before Her Honour over a period of some 11 days and culminated in orders made by Her Honour on 5 September 2022, including an order that pursuant to section 90RD of the Family Law Act 1975 (Cth) there be a declaration that a de facto relationship existed between the parties from May 2009 to May 2012 in Country AA and July 2015 to June 2019 in Victoria, Australia.
Following the conclusion of that part of the proceeding, an application was made on behalf of the respondent for her costs thrown away as a result of that threshold hearing.
On 16 March 2023 Kari J made orders in respect of the respondent’s costs application. Order 2 of those orders provides as follows:-
That within twenty-eight days, the respondent de facto husband do pay to the applicant de facto wife costs fixed in the amount of $90,000.
The 28-day period provided for payment of the costs so ordered to the respondent expired on 13 April 2023. As at today, that costs order remains outstanding.
Today, I have made trial directions listing the parties competing property applications for final hearing before me as a five-day matter to commence on 16 October 2023. I have also made final orders with respect to the parties’ competing parenting applications in relation to the child Z.
During the course of submissions made to me today in respect of case management matters, I have been informed that the de facto husband’s Solicitors hold in their trust account the sum of $124,528. Those funds are apparently held by them on trust for the applicant in anticipation of future costs to be incurred on his behalf in relation to the property proceedings.
As a result of that information received, the Solicitor for the respondent sought leave to make an oral application that the outstanding costs order be met from the funds held upon trust for the applicant by his Solicitor. It was submitted that in circumstances where there has been no appeal against that order for costs, there is no justification for the applicant not meeting the outstanding costs order from those funds. It was submitted that there are sufficient funds held in that trust account to meet the order, and that there would be approximately $34,000 remaining for the applicant to meet his future costs.
The Solicitor for the respondent noted that currently her firm holds the sum of approximately $47,000 upon trust for the respondent to meet her costs. The respondent’s Solicitor acknowledged that pursuant to orders made by consent, her firm holds the sum of approximately $321,000 upon trust for the parties, that sum forming a part of the parties’ property pool, which will be the subject of claim by each of them at the final hearing.
It was submitted on behalf of the respondent that those funds should continue to be preserved pending the final hearing. In support of that submission, I was referred to those orders made by consent on 1 December 2022 which, specifically at paragraph 10, provide that the funds be held and applied to meet the educational costs for the parties’ daughter, who attends a private school and undertakes extracurricular activities, including membership of a sports club. Those orders also provide that the funds ought be applied to meet the child’s medical expenses and tutoring costs.
In those circumstances, it was submitted on behalf of the respondent that there ought be no disruption to those orders and that the funds should be preserved pending a final determination of the parties’ competing property claims.
The Solicitor for the applicant did not oppose the disposition of the respondent’s oral application this day. However, he opposes the orders sought by the respondent that the costs be paid from funds held upon trust for him by his lawyer. Rather, it is the applicant’s case that the $90,000 ought be paid from the monies held upon trust for the parties pursuant to Court order by the respondent’s lawyer. He submits that in circumstances where it is asserted by the respondent that the property pool has a value of approximately $17 million that there are sufficient funds available to the parties, such that the dissipation of the $90,000 from the monies held on trust would not affect the respondent’s entitlement to a property settlement.
I do not accept that submission in circumstances where it is the applicant’s case that in fact the pool available to the parties is in deficit to the tune of $15 million as a result of liabilities allegedly payable by him to his mother and business associates.
Ultimately, the question of what is the value of the parties’ interests is a matter for the final hearing. Each of the parties will have the opportunity to present to the court their evidence in support of their contentions. Nonetheless, I note that it is asserted on behalf of the applicant that he has debts owing to his mother in the sum of $11 million and further, that he has outstanding business debts in the sum of approximately $15 million, which he asserts are payable to business associates in Country AA. Were I to accept that position at the conclusion of the trial, clearly, there would be no funds available to the respondent de facto wife to satisfy her order for costs.
Having regard to the factors that present themselves today, I am not persuaded that there is any basis upon which the applicant ought not meet the outstanding order for costs from funds held on his behalf. There is no appeal against that order. There is no stay on the operation of that order. There are, clearly by his own admission, funds within the applicant’s control which would satisfy that costs order. Further, there are surplus funds available to him which would enable him to meet his ongoing future legal costs.
I note also, and have regard to, the submission made earlier on behalf of the applicant with respect to the demolition of the dwelling at J Street in Suburb K, that the applicant has the capacity to meet his financial obligations when it suits him; he was able to source the sum of $20,000 to undertake the demolition of that dwelling, it being his position that he borrowed those monies from his associate, a Mr WW.
Given the ability of the applicant to source funds as required by him to undertake such works as he deems necessary and his seeming disregard for his obligations under the orders, I am not satisfied at this time that there is any reasonable basis for him to resist the orders as sought by the respondent that he should be required to meet the outstanding costs order from the funds held on his behalf in his Solicitors’ trust account. Therefore, I will make orders that he do all such acts and things to authorise the payment from his Solicitors’ trust account to the de facto wife’s Solicitors of the sum of $90,000 in order to meet the costs order made on 16 March 2023.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 27 April 2023
0
0
0