WERNER & TUCKMAN

[2012] FamCA 664

FAMILY COURT OF AUSTRALIA

WERNER & TUCKMAN [2012] FamCA 664

FAMILY LAW – ENFORCEMENT OF ORDERS

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Law Rules 1984 (Cth)

APPLICANT: Mr Werner

RESPONDENT WIFE: Ms Tuckman

RESPONDENT HUSBAND: Mr Tuckman

FILE NUMBER: MLC 1786 of 2012

DATE DELIVERED: 9 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Duffy & Simon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Spicer

SOLICITOR FOR THE RESPONDENT: Goddard Elliott

IT IS ORDERED THAT

1. The time for the applicant to file and serve an itemised costs account and costs notice pursuant to Rule 19.21 of the Family Law Rules 2004 (“the Rules”) be extended to 4.00 pm on 29 August 2012.

2. If the respondent wife disputes the said costs account she file and serve a Notice Disputing Itemised Costs Account pursuant to the Rules by 4.00 pm on 26 September 2012

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Werner & Tuckman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Werner

Applicant

And

Ms Tuckman

Respondent Wife

And

Mr Tuckman

Respondent Husband

REASONS FOR JUDGMENT  

Background

1. In this matter there were proceedings over many years in the Supreme Court of Victoria, the County Court of Victoria and the Magistrates Court of Victoria. On 30 August 1993 judgment was entered in the County Court at Melbourne in suit number MC893923 in favour of the applicant against the husband in these proceedings in the sum of $55,000 inclusive of interest and costs. On 23 April 1993, some four months prior to the husband consenting to judgment being entered in favour of the applicant, the husband and the wife consented to property orders without prior notification to the applicant which purported to transfer the husband’s interest in a property at S to the wife. When the applicant proceeded with a Warrant of Seizure and Sale of that property to enforce his judgment he was advised by the wife’s then solicitor of the existence of a caveat over the property which it was asserted arose from the completed Transfer of Land transferring 100 per cent of the interest in the property from the husband to the wife. On or about 18 July 1995 the applicant, having lodged a caveat over the property, received notice from the Land Titles Office that the wife had lodged a Transfer of Land.  

2. This lead to the applicant commencing proceedings in the Supreme Court of Victoria with respect to the property and in or about 1996 he instituted proceedings pursuant to s79A against Mr Tuckman (“the husband”) and Ms Tuckman (“the wife”) seeking to set aside the property orders made by consent on 23 April 1993 and, in the alternative, an application to review the exercise of power of the Registrar who made the property orders. Those proceedings were heard by Joske J over nine days in March 1997. In September 1997 Joske J ordered that there be judgment in favour of  the applicant in the sum of $55,000 together with interest to be calculated to that date. In December 1997 Joske J further ordered that the husband and the wife pay the applicant’s costs of both the Supreme Court proceedings and the Family Court proceedings, such costs were to be taxed in default of agreement. It is that order that the applicant now seeks to enforce.

3. Although the husband is a respondent to the proceedings, the husband was excused from further involvement in the proceedings with the consent of both the applicant and the respondent wife and I made orders dismissing the Initiating Application filed 29 February 2012 and the Application in a Case filed 18 May 2012 insofar as they sought orders against the husband.

The Application for Enforcement

1. It is common ground that there is no agreement as to the quantum of the costs nor has the applicant taken any steps to have those costs taxed or, as is now required by the Family Law Rules 2004 (Cth), assessed. Until now the applicant has taken no steps, he would say for good reason, to issue proceedings to enforce the order for costs in his favour.

2. At the time the orders were made by Joske J, taxation of the costs ordered to be paid was governed by Order 38 Rule 24 of the Family Law Rules 1984 (Cth). Pursuant to the Rules at that time there was no time limit imposed upon the applicant for the filing of a bill of costs or the fixing of an appointment for the taxation of those costs. Those Rules were repealed on 23 March 2004. Rule 19.21 of the Family Law Rules 2004 (Cth) requires a person who is entitled to costs on a party/party basis to serve an itemised account on the person liable to pay those costs within 28 days after the end of the case.

3. There was initially a dispute as to which Rule should apply, however it was ultimately conceded by Counsel for the applicant that the relevant rule for the purposes of this case is r19.21 of the Family Law Rules 2004 (Cth) but that I, insofar as the applicant has not served an itemised bill of costs within the prescribed time frame, should exercise my discretion to extend the time for him to do so. It was submitted on behalf of the applicant that precluding the applicant from serving the itemised account in accordance with a Rule that was not in force at the time the order was made, would not be just and equitable.

4. It was submitted by Counsel on behalf of the wife that I have discretion with respect to two discreet issues. The first issue being whether or not I should exercise my discretion in favour of the applicant and extend time for the purposes of service of an itemised bill of costs and the second and more significant issue being whether or not I should exercise my discretion to enforce Joske J’s order for the payment of costs. 

5. Notwithstanding that in principle Counsel for the wife opposed the extension of the time for the husband to serve an itemised bill of costs, he also submitted that it would be of assistance to the parties for the quantum of costs to be assessed in accordance with the Rules, the suggestion being that if the parties know the quantum of costs that are in dispute that might assist them to settle the matter. The wife’s opposition to the extension of time was at best a token opposition and it would appear to be inherent in her Counsel’s submission that I should extend the time for service of an itemised account so that the quantum of costs can be assessed in accordance with the Rules.

6. Ultimately it is the wife’s case that, whatever those costs might be, she should not be required to pay them and that the issue of whether or not I should exercise my discretion to enforce the orders as sought by the applicant is a threshold question. I agree with Counsel that the question of whether or not the order should be enforced is a threshold question and I propose to deal with it on that basis and fix a date for the hearing of that threshold issue.

7. Although, in my view, the assessment of the quantum of costs may be premature as I may ultimately conclude that I should not exercise my discretion to enforce the order for costs, I am prepared, in circumstances where both parties are in agreement that it would be of assistance to know the quantum of the costs the subject of dispute, to extend the time to enable the applicant to serve an itemised costs account and for the wife to file a Notice Disputing Itemised Costs. However, in circumstances where the wife may or may not be required to pay those costs, I am not prepared to allow the parties to proceed to a determination of any dispute as to those costs prior to the determination of the threshold issue. To do so would require a Registrar fixing a date for and conducting either a settlement conference, making a preliminary assessment or conducting an assessment hearing. I am not prepared to commit the limited resources of the Court to this process in circumstances where there is a threshold question to be determined as to whether the order should be enforced some 15 years after it was made.

8. It is submitted by Counsel for both parties that the current financial circumstances of their clients is one of the factors I will need to consider in reaching my decision and in those circumstances I propose to require both the applicant and the wife to file a Statement of Financial Circumstances.

9. I propose to set the matter down for hearing but before making the necessary orders and directions to do so I will hear submissions from the parties as to the date of the hearing and the timetable for the preparation of the matter for trial.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 9 August 2012

Associate: 

Date:  9 August 2012