Westway and Westway

[2008] FamCA 621

FAMILY COURT OF AUSTRALIA

WESTWAY & WESTWAY [2008] FamCA 621

FAMILY LAW - PROPERTY – Enforcement of current orders – Parties’ agreement - Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Westway

RESPONDENT: Mr Westway

FILE NUMBER: MLC 5234 of 2008

DATE DELIVERED: 6 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SPICER

SOLICITOR FOR THE APPLICANT: BERRY FAMILY LAW

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED BY CONSENT

1. THAT the husband forthwith sign all documents and do all things necessary to place the property known as M for sale as soon as reasonably practicable, wholly out of Court.

2. THAT the reserve price for the said proposed sale be $350,000.00 or such other figure as may be signed between the parties.

3. THAT the sale proceeds thereof be applied as follows:-

   a.           first to pay all costs, commissions and expenses of the sale;

   b.second to discharge the mortgage and any other encumbrance affecting the said property;

   c.third, to discharge, or contribute towards the discharge of the mortgage encumbering the C property.

4. THAT:-

   a.the property situated at C be sold altogether out of Court and that the Wife be permitted to do all things necessary to give effect to this Order;

   b.any rental income received from the tenants of the C property be paid to the Wife, and that she promptly forward any rental to the Mortgagee of the said property;

   c.that the Wife forthwith endeavour to seel the property as soon as she is informed by the Husband of the sum which is available pursuant to Order 3(c), if a sale is practicable.

   d.net balance to be paid to the Husband after payment of the like sums referred to in paragraph 3(a) and (b) herein.

5. THAT each party keep the other informed in a timely fashion of each step taken in relation to the proposed sales.

6. THAT the Wife's Form 2 Application filed 10 June 2008 be otherwise dismissed and the proceedings be removed from the docket of Young J.

7. THAT all documents Subpoenaed to the Court are to be retuned by the Subpoena Clerk at the Melbourne Registry of the Family Court of Australia to the individuals or organisations from which the documents originated. 

IT IS ORDERED NOT BY CONSENT

1. THAT the husband pay the costs of the wife of and incidental to these enforcement proceedings such costs to be fixed in the sum of $5,000 and the payment of such costs be stayed for a period of ninety (90) days and that, if and when applicable, interest in default of payment be calculated hereafter only as and from 6 November 2008 at the rate prescribed by the Family Law Rules from time to time.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5234 of 2008

MS WESTWAY

Applicant

And

MR WESTWAY

Respondent

REASONS FOR JUDGMENT

1. The matter of Westway is before me in the defended list of cases.  The husband appears in person.  Mr Spicer of counsel appears for the wife.  The matter was last before me on 9 July 2008 and at that stage the husband was not at court.  I made orders then, fixing the matter for hearing this day, directed the husband to attend court punctually at 10 am, which he has done, and otherwise required certain investigations to be made as to the values of properties and the level of debt encumbering those properties.

2. The overview of this matter is that final orders were made on 8 December 2006.  I will not repeat the contents of those orders but they are, in any event, conveniently summarised in the wife's affidavit filed 10 June 2008.  The wife's orders sought are in effect to bring about the settlement that was negotiated at court. 

3. In the orders asked by the wife of the court, her first requirement would have been to sell a property at C which was heavily, indeed overly, encumbered and thereafter there were consequential orders for the sales of properties at M, N and S.

4. In out-of-court discussions today, the husband and Mr Spicer have resolved financial issues and I have been handed consent orders on the basis that the parties know their financial circumstances and understand the sale processes involved for both C and M.  I propose to make those orders. 

5. The one matter that was not by agreement today was the question of costs. The wife briefed counsel on 9 July 2008 and again briefed separate counsel this day.  There are affidavits before the court.  There has been various service attempts and affidavits. 

6. I am asked to make an order of costs which is quantified in the sum of $5,000.  It was put to the court that the actual costs of the wife, if and when taxed, would be in the range of $6,000-$8,000.

7. The court is permitted to make a costs order if it is just. Section 117 of the Family Law Act prescribes the circumstances to be considered, in subparagraph (2A) thereof.  I have particular regard to the final settlement pronounced and the conduct of both parties thereafter.  I have otherwise evaluated all of the 2A requirements.  I have had the opportunity of reading the wife's supporting affidavit and the various annexures thereto and they give an insight into the financial conduct of the parties.

8. I make no criticism of the parties; indeed, all I am determined to do is, as prescribed in the Act, to make an order that is just.  I find that it is wholly just that there be a costs order and I fix the sum at $5,000. That avoids a lengthy taxing of costs issue and will reduce future time and costs.  I will stay the payment of costs for 90 days.  Costs should be paid directly from any available net proceeds of sale of M or C or otherwise it is the husband's responsibility then to pay costs.

9. I would direct that interest be not paid on the costs award for 90 days, so that subsequently if there is default, interest is only to be calculated from a date 90 days hereafter.

10. The parties are to submit appropriate costs orders, not by consent, pursuant to my finding.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate:  …

Date: