WERNER & TUCKMAN

In the Family Court of Australia, Mr Werner (the applicant) sought to enforce a costs order made by Joske J in December 1997 against Ms Tuckman (the respondent wife) and Mr Tuckman (the respondent husband). The underlying dispute concerned property orders made in 1993, which the applicant alleged were made without his notification and purported to transfer the husband's interest in a property to the wife. The applicant had previously obtained judgment against the husband in the County Court in August 1993 for $55,000. Following protracted litigation in the Supreme Court of Victoria, Joske J ordered that the husband and wife pay the applicant's costs of both the Supreme Court and Family Court proceedings. The husband was subsequently excused from further involvement in these enforcement proceedings.

The primary legal issues before the court were whether to extend 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 (Cth), and whether to exercise discretion to enforce the 1997 costs order. The court also considered which version of the Family Law Rules governed the process, given that the costs order was made under the 1984 Rules, which did not impose time limits for filing a bill of costs, while the 2004 Rules, in force at the time of the application, did.

Justice Macmillan acknowledged that the question of whether to enforce the costs order was a threshold issue. While the wife’s opposition to extending time for service of the costs account was considered token, the court was not prepared to proceed to a determination of any dispute as to the quantum of costs before the threshold issue of enforceability was resolved. The court noted that the assessment of costs might be premature if the order was ultimately not enforced. However, in circumstances where both parties agreed it would be helpful to know the quantum of costs in dispute, the court exercised its discretion to extend the time for the applicant to serve an itemised costs account and for the wife to file a Notice Disputing Itemised Costs.

The court ordered that the time for the applicant to file and serve an itemised costs account and costs notice be extended to 4.00 pm on 29 August 2012, and that if the respondent wife disputed the account, she was to file and serve a Notice Disputing Itemised Costs Account by 4.00 pm on 26 September 2012. The court also certified that the attendance of counsel was reasonably required. Crucially, the court fixed a date for the hearing of the threshold issue as to whether the 1997 costs order should be enforced, and required both the applicant and the wife to file Statements of Financial Circumstances for consideration in that determination.