Weiss and Cooper (No.2) - [2011] FMCAfam 1521

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEISS & COOPER (No.2)

[2011] FMCAfam 1521

FAMILY LAW – Property – costs.

Family Law Act 1975, s.117

Applicant:

MS WEISS

Respondent:

MR COOPER

File Number:

PAC 3185 of 2010

Judgment of:

Henderson FM

Hearing date:

20 December 2011

Date of Last Submission:

20 December 2011

Delivered at:

Parramatta

Delivered on:

20 December 2011

REPRESENTATION

Solicitors for the Applicant:

Adams & Partners Lawyers

Solicitors for the Respondent:

Adrian Twigg & Co Solicitors and Conveyancers

ORDERS

The Respondent is to pay to the Applicant the remainder of the $298,120.00 outstanding as ordered on 14 July 2011 by 22 December 2011.
The Respondent is to pay to the Applicant her costs on a solicitor client basis as incurred from 16 November 2010 to the conclusion of the final hearing on 22 June 2011 by 3 February 2012.
The Respondent is to pay to the Applicant the sum of $6,143.90 being interest of $87.77 per day for 10 weeks by 3 February 2012.
The Applicant’s enforcement application filed 31 October 2011 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Weiss & Cooper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3185 of 2010

MS WEISS

Applicant

And

MR COOPER

Respondent

REASONS FOR JUDGMENT

This is a matter relating to costs. The material read was the de facto wife’s application in a case filed 5 August 2011 as to costs and an application in a case filed 31 October 2011 as to enforcement together with her affidavits filed 5 August 2011 and 31 October 2011.
For the de facto husband I read his response and affidavit both filed 12 September 2011 and written submissions.
Ms Mahony appeared on behalf of the applicant and Mr Fizzoni for the respondent.
The matter proceeded on the papers and by way of submissions.
The Court notes the de facto husband has made payment to the de facto wife today in the sum of $200,000, pursuant to a judgment delivered by me on 14 July 2011. He was ordered to pay her the sum of $298,120 within 60 days of 14 July 2011. The de facto husband will pay the remainder of the outstanding judgment by this Thursday, 22 December 2011.
The application before me is threefold.
a)The de facto wife’s application for costs on an indemnity basis from the filing of her amended application in November 2010, up to and including the hearing;
b)Interest to the de facto wife on the balance of the outstanding judgment up to today’s date. The de facto wife concedes she will not claim interest on the $98,000 yet to be paid and is content that interest if it is to be paid is calculated up to today’s date; and
c)Her costs in bringing an enforcement application.
The de facto husband’s answer to the application for the costs of the proceedings by the de facto wife is that she did not make any reasonable offers to him.
I do not accept that submission for the following reasons.
Both parties have an obligation to use their best endeavours to reach an agreement. When the de facto wife commenced proceedings in July 2010 she sought an order for a payment to her of $500,000. The de facto husband’s response was she receives nil.
The de facto wife filed an amended application in November 2010 seeking 40% of the assets. The de facto husband’s position changed in his amended response filed 21 February 2011 to a position that the de facto wife receives 10 % of the assets. This substantial difference in the parties’ applications indicates why no agreement was reached at a conciliation conference held in February 2011.
In June 2011 the de facto husband increased his percentage to be paid to the de facto wife to 20 % of the assets. This was one month before the hearing and was his position outlined in the case outline filed on his behalf for the hearing.
The wife seeks her costs from the date of filing her amended application, when she sought an order for 40%. Ultimately, I determined she was entitled to 35% of the assets. The best offer she received from the de facto husband was 20 % in about June 2011.
Thus it cannot be correct that the de facto wife did not make an offer to settle the matter rather the de facto husband made no reasonable offer to settle the matter when one has regard to the verdict she received.
It is clear from the correspondence that the husband was not cooperative in permitting valuers and the like attend the property to value chattels and the home itself. All these matters were attended to by the de facto wife with very little cooperation by the de facto husband. There are 8 letters dating from 13 May 2010 to 4 May 2011from the de facto wife’s lawyers to the de facto husband’s lawyers on these basic and necessary issues. None go the other way. The running was one way.
It is clear that the solicitors for the wife on an almost monthly basis over a period of a year, wrote a letter to the other side about some aspect of this matter preparing for a conference or the hearing, obtaining valuations and like. The de facto husband as he is entitled to do took what I would call a hard ball approach to this matter. However there are consequences from choices made. It is clear that from the commencement of the proceedings he has had, and continues to have real difficulty understanding how this lady could have a share of a property that he inherited from his parents.
The de facto husband took such a similar approach during the hearing as he did during preparation for the hearing. The best the de facto wife could have obtained by way of an agreement was 20% of the assets some 15% less than the verdict. Further this offer was only made one month prior to the hearing. The de facto wife received 15% more than the de facto husband’s best offer and only 5% less than she sought in her amended application.
Section 117 in the Act relating to costs does not say parties must be wholly successful for me to exercise my discretion and make an order for costs, just not wholly unsuccessful. The de facto wife was not wholly unsuccessful. She received 5% less than she sought in an amended application filed in November 2010. It was the de facto husband who was wholly unsuccessful. His best offer to the de facto wife in February 2011 was 10%. This position remained unchanged until one month before the hearing when he increased same to 20%.
The de facto wife was successful in her application and the de facto husband unsuccessful on these facts.
I accept each of these parties are supported and continue to be supported by the public purse, that is, neither has worked for many years. The de facto husband receives a disability pension and the de facto wife a pension. The home is the only asset they have of any real value. The de facto husband is an only child of an aged mother. His mother has assisted him to raise money to pay the de facto wife her verdict.
I do not see that the facts of this case support my making an order for indemnity costs. Indemnity costs are only ordered in particular and special circumstances. Something out of the ordinary circumstances relating to the conduct of a party and the results of that conduct on the litigation. A decision to make any costs order is one of discretion and I must have sound reason to do so particularly where as here the Act states each party is to bear their own costs.
I do not today see that the wife is entitled to indemnity costs. However an order for costs on a solicitor/client basis is a different matter.
The wife was required to commence proceedings in order to receive her entitlement to the parties’ assets. That is clear from the de facto husband’s initial response that she receive nothing.
The best offer she received was 20% of the assets one month before the hearing when much of the costs she has incurred had been expended.
The de facto wife was almost wholly successful in her application and the de facto husband wholly unsuccessful.
The de facto husband played hard ball in his approach to the litigation. He was uncooperative with the de facto wife’s legal team and the de facto wife. This resulted in the de facto wife expending more in legal fees than was necessary to present her claim than would have been the case had the de facto husband taken a more cooperative approach in having the matter prepared for trial, obtaining valuations of chattels real estate and the like.
Both parties are on a similar limited income. The de facto husband received 65% of the assets of the relationship and is in a superior capital position to that of the de facto wife.
In those circumstance awarding costs on a solicitor/client basis would be a proper exercise of my discretion from the date of the wife’s amended application namely November 2010. And I will make that order.
In relation to interest payable on the outstanding sum there is no doubt the de facto wife was entitled to receive the fruits of her verdict within 60 days from 14 July 2011. She is yet to receive all of it and it is now 20 December 2011, some 14 or so weeks past the due date and her entitlement to interest is clear.
However she lodged a caveat on the property and as I read the material the discharge of the caveat on the title to allow the de facto husband to re-finance caused a delay of four weeks. The de facto husband had no part in that delay and I accept he has moved as speedily as he could to obtain money to pay the de facto wife’s verdict.
I see no inaction or obfuscation by him in this delay. I find the wife’s interest payment will be reduced by four weeks to 10 weeks. The calculation is $87.77 per day for 10 weeks.
In relation to the de facto wife’s application for her costs of the enforcement application the de facto husband submitted that this application falls into the same category as the interest payment namely he was trying his best, there was a delay in having the caveat discharged to enable him to obtain a reverse mortgage on his property as well as his aged mother’s property and he moved as quickly as he could and there was no necessity for the enforcement summons to be filed.
I find favour with that submission and dismiss the de facto wife’s application for her costs for the enforcement application.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Henderson FM

Date: 16. 02. 2012