Wellen and Wellen (No.2)

[2018] FCCA 1468

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLEN & WELLEN (No.2) [2018] FCCA 1468

Catchwords:
FAMILY LAW – Property – Costs – quantification of – Rule 21.02(2)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001, r.21.02(2)(a)

Applicant: MS WELLEN

Respondent: MR WELLEN

File Number: BRC 8305 of 2015

Judgment of: Judge Egan

Hearing date: 16 April 2018

Date of Last Submission: 16 April 2018

Delivered at: Brisbane

Delivered on: 16 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Foley

Solicitors for the Applicant: Get Real Legals

Respondent: In person

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Respondent pay to the Applicant’s solicitors on behalf of the Applicant, the Applicant’s costs thrown away as a result of the adjournment of the trial as ordered on 12 March 2018.

2. That the Respondent pay the Applicant’s costs fixed in the amount of $17,775.05 to the Applicant’s solicitors no later than 4.00pm on or before 16 May 2018.

3. That the costs of and incidental to the appearance on 16 April 2018 be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Wellen & Wellen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8305 of 2015

MS WELLEN

Applicant

And

MR WELLEN

Respondent

REASONS FOR JUDGMENT

1. On 12 March 2018, the issue in dispute between the parties was listed for hearing. On that occasion, as has been traversed in lengthy discussions in Court, the husband failed to make material disclosure of certain documentation.  That documentation related to the existence of a property which had been purchased by him in December of 2017. It now transpires that the husband failed to make disclosure of his 2016/2017 income tax return and also a notice of assessment for the 2017 financial year.

2. On 11 April 2018, I ordered that the husband pay to the wife costs thrown away as a result of the adjournment of the trial listed for hearing on 12 March 2018 and, further, that such costs be assessed on an indemnity basis.

3. The trial was adjourned to 11 April 2018. On 11 April 2018, Mr Foley of Counsel for the wife made an application for a costs order in respect of those costs thrown away. Specifically, Mr Foley asked that I make an order for a particular amount, as I am entitled to order pursuant to the provisions of Rule 21.02(2)(a) of the Federal Circuit Court Rules 2001.  I indicated to Mr Foley that I may be prepared to make such an order if appropriate submissions were made to me and, further, if I was provided with an appropriate schedule of the costs of which were claimed.

4. I have today granted leave to the wife to read and file an affidavit of Marek Reardon who is a Solicitor of the Supreme Court of Queensland and approved as a costs assessor of that Court.  That affidavit relevantly attaches a report prepared by Mr Reardon which quantifies the costs thrown away in respect of the 12 March 2018 appearance in the amount of $17,775.05.  I have read the report of Mr Reardon and consider the contents of same to be an accurate reflection of the methodology used by him for the purpose of him arriving at that figure as well as constituting a detailed basis upon which such sum was quantified.

5. Accordingly, having recognised that Mr Reardon has prepared a report which quantified costs as ordered by me on 11 April 2018, I order that the husband pay to the wife’s solicitors the wife’s costs thrown away as a result of the adjournment of the trial before me on 12 March 2018.

6. I further granted leave to the Applicant to read and file an affidavit of the wife sworn today, 16 April 2018.  That affidavit relevantly annexes a letter from the Child Support Agency which assessed monies payable by the husband based upon a taxable income of the husband in the amount of $315,331.00.  The Child Support Agency generally relies upon income obtained from the income tax office when assessing such amounts as are payable for child support. Annexed as W-2 of the wife’s affidavit is a copy of the husband’s tax return which, I am told by Mr Foley, was forwarded by the husband to the wife’s solicitor recently.  On page 4 of the income tax return for the year ended 30 June 2017, it is recorded that the husband’s taxable income for that financial year was in the amount of $315,331.00.  Hence, there is an equivalence between the amount recorded in the husband’s tax returns and the husband’s taxable income and the taxable income amount as recorded in the Child Support Agency documentation. 

7. That income indicates that the husband has, at least on the face of it, the capacity to pay the costs order just made by me. The question then remains as to when that costs order ought to be paid by.

8. The husband appeared before me on 11 April 2018 and was made aware that I was listing the matter today for consideration of the question of the quantification of the costs order relating to the 12 March 2018 appearance.  He well knew that the matter was listed today but has elected not to appear.

9. In all of the circumstances, and having regard to the imminent hearing of the matter in the Maroochydore circuit sittings listed to commence on 4 June 2018, I consider it reasonable that the husband be ordered to pay the amount of $17,775.05 to the wife’s solicitors on behalf of the wife on or before 16 May 2018.

10. As to the costs of today’s appearance, I order that those costs of and incidental to such appearance be reserved.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  6 June 2018