Wheller and Wheller (No 2)

[2013] FamCA 1146

FAMILY COURT OF AUSTRALIA

WHELLER & WHELLER (NO 2) [2013] FamCA 1146

FAMILY LAW – COSTS – Where the wife seeks fixed costs of and incidental to her application in a case.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Wheller

RESPONDENT: Mr Wheller

FILE NUMBER: MLC 2615 of 2012

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

IT IS ORDERED THAT

1. The wife be permitted to adduce evidence from Mr A, chartered accountant of G Accountants, in relation to the valuation of the parties’ interests in the:

   a)BB Group;

   b)Wheller superannuation fund;

   c)I Investment Trust;

   d)J Pty Ltd;

   e)K Pty Ltd;

   f)Wheller Family Trust; and

   g)Wheller Pty Ltd Family Trust.

2. By 4.00 pm on 25 October 2013 the wife file and serve an affidavit sworn by Mr A.

3. Mr A and Mr H confer by 4.00 pm on 1 November 2013 and provide a written report to the parties by no later than 12.00 noon on 6 November 2013, such report to identify those matters upon which they have reached agreement, those matters about which there is no agreement, and a brief explanation of their respective positions.

4. The husband pay the wife’s costs of and incidental to the wife’s Application in a Case filed 16 October 2013 fixed in the sum of $4,000 to be paid 4.00 pm on 13 November 2013.

5. The wife’s Application in a Case filed 16 October 2013 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheller & Wheller 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 MELBOURNE

FILE NUMBER: MLC 2615 of 2012

Ms Wheller

Applicant

And

Mr Wheller

Respondent

REASONS

1. In this matter the wife seeks the costs of her application in a case filed 16 October 2013 in which she seeks to be permitted to adduce evidence from Mr A in relation to the parties’ interests in various entities. 

2. On 8 May 2013 I made orders setting the matter down for trial and orders for the appointment of Mr H as a single expert to value those interests.  That report was to be released no later than 4.00 pm on 30 August 2013 and it does not appear to be in dispute that that report was, in fact, not released until 9 October 2013.  It is submitted by Mr Geddes QC that that is because that delay cannot in any way be attributed to the wife and may be attributed to the husband and not just Mr H.  Those are matters which are untested however the fact is that it was not until 9 October 2013 that the wife was in a position to assess the report prepared by Mr H.

3. On 11 October 2013, having received that report, the wife’s solicitors wrote to the husband’s solicitors indicating that they wished to adduce evidence from an adversarial witness.  On 15 October 2013 the solicitors for the husband forwarded a letter to the solicitors for the wife indicating that they were opposing the appointment of an adversarial expert and making the point that if the matter proceeded to trial the wife would, of course, be afforded an opportunity to cross-examine Mr H.  As a result of that correspondence, the wife filed her application in a case on 16 October 2013. 

4. The husband was told by Mr Geddes QC for the wife that the wife seeks that the costs of and incidental to the wife’s application in a case be fixed in the sum of  $4,000.  Mr Holmes for the husband, to his credit, has not been seen to dispute with any real force the quantum of those costs save for his submission  that the matter was not one that required the attendance of Senior Counsel. 

5. The general rule in proceedings in this Court is that parties bear their own costs. However, that rule is subject to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) which provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may make such orders as to costs as it considers just. Section 117(2)(a) of the Act sets out the matters the Court must have regard to in determining what, if any, orders should be made for costs insofar as those matters are relevant. The weight to be given to those various matters is a matter for the Court.

6. Clearly not all of those matters are relevant in this case.  In relation to the financial circumstances of the parties, it is clear that even on Mr H’s evidence the business interests alone have a value of between two and three million dollars and I am satisfied the circumstances of these parties are such that the husband has the capacity to meet any order for costs that I might make and, although the wife is likely as a result of these proceedings to receive a significant settlement, that is not the determinative matter.  It is not a matter of whether or not she has enough and therefore does not need an order for costs but, that I would not be precluded from making an order on the basis of their financial circumstances. The parties are clearly not in receipt of legal aid.   It is not, in my view, so much a matter of the conduct of the parties in these proceedings but primarily the fact that the wife has been wholly successful.  Whilst it was submitted d that I might reserve the parties’ costs at this stage because the issue of valuation may, in fact, turn out to be a frolic, it may well be that I do not accept Mr A’s evidence and that I do accept Mr H’s evidence.  However, the costs in this question relate to the costs of this application.

7. Whilst I agree that, where possible, the evidence should be the evidence of a single expert, it cannot be that in order to comply with those Rules the wife is denied natural justice. It has not been put to me that there is any significant detriment to the husband in terms of the wife being permitted to adduce evidence from Mr A and more importantly, at least once the application was served upon the husband, it is clear that there was an issue as to the methodology which needed to be resolved and to deny the wife the opportunity to adduce that evidence would, in my view, be likely to deny her natural justice. 

8. In all of the circumstances, I am satisfied that it is appropriate to make an order for costs and pursuant to the Rules I can fix an amount for those costs.  I am satisfied that it would be appropriate to do so in the circumstances of this case.  I would not wish to put these parties to the inconvenience and cost of assessment of those costs and I propose to make the orders sought by Mr Geddes QC.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 October 2013.

Associate: 

Date:  18 September 2014