Wyre & Beadles
[2022] FedCFamC1F 326
•13 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wyre & Beadles [2022] FedCFamC1F 326
File number(s): SYC 2890 of 2013 Judgment of: SCHONELL J Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – PROPERTY – Enforcement – Where final property orders had been made – Where the husband had not fully complied with those orders – Where a trustee was appointed to effect sale of a property that was the subject of the final property orders – Where it would not be inequitable to enforce the Court’s orders – Warrant for possession granted – Costs sought by the trustee and wife – Costs order made for the husband to pay the trustee and wife’s costs of the Application – Application for indemnity costs otherwise dismissed. Legislation: Family Law Act 1975 (Cth) ss 105, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 11.56, 12.13
Cases cited: Colgate Palmolive & Anor v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Cross & Beaumont (2008) 39 FamLR 389; [2008] FamCAFC 68
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FamLR 123; [2005] FamCA 158
Graham v Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Greedy and Greedy (1982) FLC 91-250; [1982] FamCA 41
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Nestor & Ripley & Anor [2020] FamCA 694
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Stoian & Fiening (Costs) [2014] FamCA 944
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Younghanns and Ors v Younghanns and Ors & Younghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 12 May 2022 Place: Sydney Counsel for the First Applicant: Mr Packer Solicitor for the First Applicant: Hannafor Cox Conellan & McFarland The Respondent: Did not participate ORDERS
SYC 2890 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WYRE
First Applicant
MR COOKE
Second ApplicantAND: MR BEADLES
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.A Warrant for Possession of the property being the whole of the land described in Folio Identifier … (Lot … in Deposited Plan …) (“the Property”) be issued in favour of the trustee, Mr Cooke, authorising Mr Cooke to enter and take possession of the Property.
2.Any service upon the respondent husband (“the husband”) of documents required by these orders be effected by securing the documents to the front gate of the husband’s usual place of residence at C Street, Suburb B NSW and posting a copy of the documents in a pre-paid envelope addressed to the husband at C Street, Suburb B NSW.
3.The husband pay the costs of the applicant trustee and wife of the Application in a Case filed 9 June 2020 as agreed or taxed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wyre & Beadles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Case filed 9 June 2020, a Court appointed trustee for sale of real property seeks a warrant for possession and indemnity costs. An order is also sought for the wife’s costs on an indemnity basis.
The application comes against a background of long-running proceedings before this Court where the wife has been seeking to enforce final property settlement orders made on 25 October 1993.
The following documents were relied upon:
(1)Application in a Case filed 9 June 2020;
(2)Affidavit of Mr Cooke filed 4 June 2020;
(3)Affidavit of the wife filed 4 June 2020;
(4)Affidavit of Mr E filed 4 June 2020;
(5)Affidavit of Mr F filed 4 June 2020;
(6)Affidavit of Mr F filed 17 June 2020;
(7)Affidavit of Mr F filed 15 December 2020; and
(8)Case Outline document.
BACKGROUND FACTS
Final property settlement orders were made on 25 October 1993 between the wife and the husband. The orders have as yet not been fully complied with.
On 6 November 2017, McClelland J (as he then was) made orders appointing Mr Cooke as trustee for sale of property the subject of the final property orders. His Honour also made orders for service of documents in a particular way.
Service of his Honour’s orders was effected on 15 October 2019.
Mr E in his affidavit filed 4 June 2020 gives evidence as follows:
5. I then placed a copy of my letter dated 3 July 2019 into the letter box at the Property. Annexed and marked “[E-03]” is a copy of my letter dated 3 July 2019. Annexed and marked “[E-04]” is a copy of the photograph depicting myself placing my letter in an envelope addressed to “[Mr Beadles, G Street, Suburb H] NSW […]” into the letter box at the Property.
6. I attended the neighbours place and spoke to [Mr J] who said “[Mr Beadles] still lives there”.
Mr Cooke says in his affidavit filed 4 June 2020:
5. In late 2019 I was at my law firm practice when I received a telephone call from a person who identified himself as a Police Officer from the [City K] Police Station. The male voice did state his name but I can no recall it. He then went on to say, “I have received a complaint from a [Mr Beadles], that you are trying to force him off his [property] illegally as you have the wrong name of the property.” I said, “I am the court appointed trustee and I am sure the lot and deposited plan numbers correctly identify the property.”
6.I am of the belief that [Mr Beadles] and his family still reside on the Property. The front access gate is always chained and padlocked shut. This stops anyone accessing the Property which prevents it from being marketed, inspected and sold.
Mr F, a solicitor, has sworn a number of affidavits in the proceedings. In an affidavit filed 4 June 2020, he said:
4. At about 2.22pm on Wednesday, 25 March 2020, I saw the owner of the neighbouring property, [Mr J] about to leave his property at [2 C Street, Suburb B] NSW […], by car. I drove up to [Mr J] and said, “I am [Mr F] from Hannaford Cox Solicitors in [City D]. Can you tell me if you neighbour [Mr Beadles] still resides next door”. [Mr J] said, “Yes he does, but he locks his front gates to stop the sheriff from serving him with anything.”
Mr F gives further evidence that on 11 June 2020 he served the husband with copies of the Application in a Case seeking warrant for possession together with a copy of the affidavits of Mr Cooke affirmed 2 June 2020, Mr E affirmed 16 December 2019, Mr F dated 26 March 2020 and Ms Wyre affirmed 3 June 2020 by affixing them to the gate in accordance with the orders made by McClelland (as he then was).
The letter affixing the documents identified that the matter was before the Court on 27 July 2020.
On 27 July 2020 there was no appearance by the husband. The matter was then adjourned to the chambers of Senior Registrar Campbell on 28 August 2020.
The matter was listed before the Court on 3 December 2021. There was no appearance by the husband on that date. Orders were made listing the matter for an undefended hearing on 12 May 2022. In accordance with the orders made on 3 December 2021, the husband was given notice by the Court on 3 March 2022 and again on 19 April 2022 of the listing on 12 May 2022. Those letters became Exhibit 1 in the proceedings.
On 12 May 2022, the matter was called three times and there was no appearance by the husband.
I am satisfied the husband has notice of the listing and that the Court intended to proceed on an undefended basis if he did not appear.
I have read all the affidavits relied upon. It is clear from the evidence that the husband will not permit access to the property to effect its sale and has attempted to frustrate its sale.
I am satisfied that the final property orders have not been effected and that it is appropriate that the property the subject of the application be sold by the trustee, and that to effect a sale of the property it is necessary that the trustee be in possession of the property.
The Court’s power to grant a warrant for possession arises pursuant to s 105 of the Family Law Act 1975 (Cth) (“the Act”).
Section 105 provides as follows:
Enforcement generally
(1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
(2)Except as prescribed, a court shall not entertain a proceeding under this Act for the enforcement of a decree made by another court unless the decree is registered in the first mentioned court in accordance with the regulations.
(2A)Subsection (2) does not prevent a court from making an order under paragraph 90KA(c) or 90UN(c).
(3)Where a person bound by a decree made under this Act has died, the decree may, by leave of:
(a) the court by which it was made; or
(b)any court in which the decree has been registered in accordance with the regulations (whether the decree was registered before or after the death of the person);
and on such terms and conditions as the court considers appropriate, be enforced, in respect of liabilities that arose under the decree before the death of that person, against the estate of that person.
An order for possession of real property may be enforced by a warrant for possession. Such an order is made pursuant to r 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). A warrant for possession, if granted, will permit an enforcement officer to enter into and take possession of the real property identified in the order.
Pursuant to r 1.05 an enforcement officer includes:
enforcement officer includes:
(a) an officer of the court who has power to enforce an order; and
(b) a person appointed by the court for the purpose of enforcing an order.
Note: In the Federal Circuit and Family Court (Division 1), this includes the Marshal, Deputy Marshal or a delegate of the Marshal or Deputy Marshal. In the Federal Circuit and Family Court (Division 2), this includes the Sheriff, Deputy Sheriff or a delegate of the Sheriff or Deputy Sheriff.
The applicant Mr Cooke is a person appointed by the Court to enforce the order.
Rule 11.56 of the Rules provides:
Warrant for possession of real property
(1) An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.
(2) A court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.
(3) If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the court gives permission.
A warrant for possession will be issued provided that the respondent (in this case the husband) has had at least seven days’ notice of the order. I am satisfied that the husband has had at least seven days notice.
Justice McEvoy in Nestor & Ripley & Anor [2020] FamCA 694 observed as follows:
11.The authorities make it clear that the power of a court to enforce orders is discretionary rather than absolute, and the Court has the discretion to refuse to enforce one of its orders. I refer in this regard to In the marriage of Ramsey (1983) FLC 91-301, Collins & Olsthoorn (2005) FLC 93-216, and In the marriage of Kerr (1983) 8 Fam LR 1023 (Kerr).
12.In Kerr, Nygh J drew attention to the use of word “may” in section 105(1) of the Act as indicative of the discretion of the Court to enforce orders. His Honour observed that the authorities suggested that the Court would only refuse the enforcement of orders if the circumstances prevailing at the time would make it inequitable to do so.
I note, from the chronology referred to earlier, that the wife has for some significant period been attempting to enforce the orders of the Court. The delay in enforcement has largely, although not entirely, arisen because of the actions of the husband. That does not, however, provide a sufficient basis to refuse to exercise my discretion to make the order. Whilst enforcement is a discretionary remedy, I am not satisfied that it would be inequitable to enforce the Court’s orders.
In those circumstances, it is appropriate to make the orders as sought for the warrant.
Both the trustee and the wife seek orders for costs.
The circumstances in which the orders are sought are very different. The trustee seeks costs arising from the Application for the warrant for possession.
The wife, however, seeks costs arising from the filing of an application on 13 September 2017 which resulted in the orders made 6 November 2017 as well as costs said to be “up to the date of these proceedings”.
I do not propose to deal with the wife’s application for costs that arise as a consequence of an application that resulted in orders made over four and half years ago. There is no evidence before me as to the circumstances that led to the making of the orders and no explanation as to why an order for costs was not sought at the time or at any subsequent time closer to the event.
As the Full Court observed in Greedy and Greedy (1982) FLC 91-250 at 77,382:
In considering this matter, this Court regards it as important to comment that it seems highly desirable that questions of costs be dealt with at the conclusion of the substantive matter immediately following the delivery of judgment. In the matter before us, some three months elapsed before judgment and submissions upon costs. Regrettably this situation must add considerably to the actual costs bill to be met by each party. It also meant that his Honour had to consider the matter afresh and to cast his mind back to the circumstances of the hearing more than three months before.
I regard is as very unsatisfactory to bring an application for costs so many years later. I dismiss that part of the application as far as it seeks cost arising from the orders made on 6 November 2017.
As to costs generally, s 117(1) provides that each party to a proceeding under the Act shall bear his or her own costs. Section 117(2) constitutes an important exception to the general rule such that the Court may depart from the general rule if there are circumstances that justify the making of an order, and if so, the Court may make such order as it considers just.
An applicant for costs does not need to establish a “clear case” (Penfold v Penfold (1980) 144 CLR 311 at 315) nor need the circumstances be exceptional to justify the making of a costs order (Stoian & Fiening (Costs) [2014] FamCA 944 at [19]).
No one factor under s 117(2A) prevails over all others and indeed just one factor may be sufficient to justify the making of an order for costs (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 per Strickland J at [24]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FamLR 123 at [41].
Section 117(2A) sets out the matters which the court is required to have regard to in considering what order, if any, should be made.
(a)the financial circumstances of each of the parties to the proceeding;
No evidence has been placed before the Court as to the financial circumstances of the parties.
The Court recognises, however, impecuniosity or a party's inability to pay costs is not a bar to a costs order being made if that party's conduct is found to warrant such an order (Cross & Beaumont (2008) 39 FamLR 389).
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
Not relevant.
(c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The husband has elected to take no part in the proceedings as is his right. He has however not complied with orders.
(d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
The proceedings arise as a consequence of the husband’s failure to comply with orders.
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceeding;
Not Relevant.
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
Not relevant.
(g)Such other matters as the Court considers relevant;
Not relevant
In view of the above matters, I am satisfied that it is appropriate to make an order for costs of the Application filed 9 June 2020 in favour of the trustee and the wife. The Application arises as a consequence of the husband’s failure to comply with orders. Had he complied with Court orders, the application would have been unnecessary. Such conduct is sufficient to warrant the making of an order for costs on a party/party basis.
Whilst the Court has the power to fix a sum to avoid delay, aggravation and further cost (Graham v Squibb (2019) FLC 93-892), the Court was not provided with any evidence as to a set sum on a party-party basis.
The Application, however, seeks orders for costs of the trustee on an indemnity basis assessed at $11,963.67 and for the wife on an indemnity basis at $33,374.73.
It is well settled that when costs are ordered by this Court, such costs are payable on a party/party basis. It has been held that the Court should not lightly depart from the ordinary rule (Kohan & Kohan (1993) FLC 92-340 at 70,614 (“Kohan”)).
Having said that, the Court clearly has the power to make an indemnity costs order in an appropriate case.
In Colgate Palmolive & Anor v Cussons Pty Ltd (1993) 118 ALR 248, Sheppard J reviewed a number of authorities and ultimately concluded that there should be some “special or unusual feature in the case to justify the court departing from the ordinary practice” (at 256). His Honour observed at 257:
… The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
In Younghanns and Ors v Younghanns and Ors & Younghanns (2000) FLC 93-029, the Full Court affirmed that the making an indemnity costs order is “a very great departure” from the “normal standard” and, referring to the decision of Sheppard J in Colgate Palmolive & Anor v Cussons Pty Ltd (supra), said at 87,471:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some “particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”
(Citation omitted)
As is clear, the class of cases which may attract an indemnity costs order are not closed and depend entirely on their unique factual circumstances and the conduct of the parties. Justice Harper in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 set out some of the circumstances in which indemnity costs orders have been made, including:
7.…
(i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. (1988) 81 A.L.R. 397.
(ii) The making of an irrelevant allegation of fraud: Thors v. Weekes (1989) 92 A.L.R. 131.
(iii)Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty. Ltd. (unreported, Federal Court, French, J., 3 May 1991).
(iv) The commencement or continuation of proceedings for an ulterior motive: Ragata Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, Davies, J., 5 March 1993).
(v) Conduct which amounts to a contempt of court: EMI Records Ltd. v. Ian Cameron Wallace Ltd. [1983] Ch. 59.
(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: J-Corp. Pty. Ltd. v. Australian Builders Labourers Federation Union of Workers (W.A.) Branch (No. 2) (1993) 46 I.R. 301.
(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v. Petit-Breuilh (No. 2) (unreported, [1990] VSC 395, 18 October 1999).
(As per the original)
In the course of submissions, I was not taken to any particular fact or circumstance that warranted the making of a costs order on an indemnity basis.
I note that the trustee and the wife have not complied with the obligations of r 12.13(4), which provides as follows:
Order for costs
…
(4)A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
I further note the observations of the Full Court in Kohan, where their Honours said at 79,611:
… We are of the opinion that in an appropriate case, the Court has a discretion to order costs on an indemnity basis and that such costs may be ordered, where they have been incurred under a costs agreement which departs from the usual scale of costs. However, it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
The trustee and the wife have elected not to put before the Court any evidence as to a fee agreement or how the indemnity costs are calculated.
I dismiss any application for indemnity costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 13 May 2022
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