YARBER & YARBER
[2019] FCCA 3004
•11 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YARBER & YARBER | [2019] FCCA 3004 |
| Catchwords: COSTS – Wife seeking indemnity costs – husband ordered to pay wife’s costs on party/party basis. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27 Commonwealth v Verwayen [1990] HCA 39 Stanford v Stanford [2012] HCA 52 |
| Applicant: | MS YARBER |
| Respondent: | MR YARBER |
| File Number: | DGC 2174 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 October 2019 |
| Date of Last Submission: | 11 October 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 11 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livitsanos |
| Solicitors for the Applicant: | Bona Fide Lawyers |
| The Respondent: | In person |
ORDERS
That the remaining net sale proceeds of both the property situate and known as A Street, Suburb B, being the whole of the land more particularly described in Certificate of Title Volume … Folio …… (‘the home’) and the property situate at and known as D Street, Suburb E being the whole of the land more particularly described in Certificate of Title Volume … Folio … (‘the D Street, Suburb E property’) be applied as follows:
(a)The sum of $20,000 to remain in trust to be applied to payment of the Capital Gains Tax associated with sale of the D Street, Suburb E property (‘the CGT’)
(b)75% of the remaining balance to the Wife; and
(c)25% of the remaining balance to the Husband
That upon the Wife filing her tax return for the 2020 financial year, the funds held in trust pursuant to paragraph 1(a) herein be applied towards payment of the CGT and then any remaining funds be divided 75% thereof to the Wife and 25% thereof to the Husband.
That the Wife retain to the exclusion of the Husband all right title and interest in the Motor Vehicle C and all other assets currently in the Wife’s possession.
That the Husband retain to the exclusion of the Wife the motor vehicle and all other assets currently in his possession.
That in accordance with s90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the Husband’s interest in the Super Fund F, the Trustee shall pay to the Wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $64,269 and there be a corresponding reduction in the entitlement the Husband would have had but for these Orders.
That Order 5 herein has effect from the operative time.
That the operative time for these Orders is four (4) business days after service of a sealed copy of said Orders on the trustee of the superannuation fund.
That this Order binds the trustee of the Super Fund F.
That the trustee do all such acts and things and sign all such documents so the trustee can, in accordance with their obligations, calculate the entitlement and make the payment to the Wife in accordance with Order 5 herein.
That the parties do all such acts and things and sign all such documents as may be required to arrange for the Wife's share of the Husband's superannuation entitlements in accordance with Order 5 herein to be rolled out of the Super Fund F into a superannuation fund of the Wife's choosing.
That each party and the Trustee has liberty to apply on not less than four (4) business days’ notice, in respect to the implementation of the superannuation splitting orders.
That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the home being deemed in the possession of the Wife);
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Wife;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the Husband pay the Wife’s costs of transferring the home and the D Street, Suburb E property to the Wife’s sole name on trust for sale pursuant to the Orders made 18 March 2019 on an indemnity basis with said costs to be fixed in the sum of $2,617.96 and adjusted to the Wife from the Husband’s share of the net sale proceeds pursuant to paragraph 1(c) herein.
That the Husband pay the Wife’s costs of and incidental to the Wife’s Application, and as amended by her Amended Initiating Application, fixed in the sum of $20,000, with such costs to be deducted from the Husband’s property settlement referred to in paragraph 1(c) hereof.
The Respondent to pay the Applicants costs (other than those already ordered) fixed at $20,000.
AND THE COURT NOTES:
A.The parties intend that these Orders shall as far as practicable finally determine the financial (and other) issues between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Yarber & Yarber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2174 of 2018
| MS YARBER |
Applicant
And
| MR YARBER |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The respondent seeks an adjournment of the proceeding to enable him to obtain legal assistance. He says he now has monies cleared which would enable him to do this. The application is opposed on predictable grounds by the applicant. I note that the matter first started as long ago as June of last year. The relevant papers were served upon Mr Yarber, and there is an affidavit of service on the Court file as long ago as 30 August 2018.
The matter was before the Court on 18 September 2018, and on that date Mr Yarber attended Court, and there is no question that he was therefore fully seized of what the property proceeding was. Various orders were made by consent indeed on that date, to progress the matter. The orders included, at order 10, that the husband file and serve responding material by way of response and affidavit and financial statement, within 21 days. No such materials were filed.
The matter then returned to Court on 18 March 2019, on which occasion Mr Yarber did not attend. Relevantly for these purposes, orders were made, in order 4, that in the event that the respondent failed to file a response affidavit and financial statement, leave would be granted to the applicant to proceed undefended on 11 October 2019. Mr Yarber has confirmed he received those orders, and he has had some six or seven months in which to order his affairs to participate in the proceeding. He has not filed a response affidavit, or indeed any materials whatsoever.
He asserts that funds were released to him, albeit perhaps not on exactly 20 August 2019, but they must have transferred quite some time ago. In these circumstances, I am not inclined to grant an adjournment. It is a gross impost on the applicant. It is to be noted that in the various cases that deal with these matters, including Aon Risk Services, and perhaps even harking back to Verwayen, that one of the things that the Court needs to bear in mind is the stress and strain of preparing for a hearing. These are not minor matters, simply to be limply set aside.
True, it is, that the respondent may be able to pay a costs order if funds have been cleared to him, but I note that no payment of the extant cost orders previously made has occurred. In my view, Mr Yarber has had every proper opportunity to participate in these proceedings, and has simply failed to do so in the most extreme way. He well knew that if he didn’t file this material, the matter would proceed undefended today. I am not minded to adjourn it at all, and the matter will therefore proceed.
RECORDED: NOT TRANSCRIBED
The first matter raised by Mr Yarber which I should briefly deal with is his concern that the orders made in March may have been unfair to him, as he was unable, through ill-health, to attend on that day. It is important to remember that he has already confirmed that he received those orders, thus whatever the position on that date was, he was well aware of the orders that were made, and I do not need to repeat the remarks I have already made in respect of the adjournment application which dealt with this matter.
The respondent, being in default within the meaning of the Court’s rules, on one view, the Court can proceed to and determine the matter on the pleadings. But the wife has filed a trial affidavit of considerable detail, and while Mr Yarber’s oral submissions might put one or two matters in issue, the main thrust of what she had to say was not, in fact, the subject of material challenge, although there is one aspect to which I shall need to return.
This being a property application, the first task for the Court is to ascertain the legal and equitable interests of the parties, and to determine whether it is just and equitable there be a property adjustment. As the High Court, however, said in Stanford v Stanford, in very many cases, where a relationship has ended, the basis upon which the parties have conducted their financial affairs is radically altered, and it is often therefore appropriate to contemplate making a property adjustment. Here, the parties’ former properties have been sold. The parties’ relationship is completely sundered. It is plainly just and equitable that there be a property division.
This brings us then to the question of the pool which is not in material dispute. There are the nett proceeds of sale of the properties formerly owned by the parties. There has been a partial distribution, pursuant to Court order. The wife’s motor vehicle is given as a concession against interest, and the husband’s former motor vehicle is an estimate of which has been caused by the failure of the husband to put any material on. The superannuation figures are from their funds. So there is no real dispute whatever as to the property pool as it now stands.
That brings us to the question of contribution. The parties were in the relationship between 2000 and 2018. I note that in his oral submissions, the husband sought to suggest, if I understood him correctly, that he may have made the deposit on the A Street, Suburb B property and contributed rather more to its purchase than he might otherwise be given credit for. I note that that is not the wife’s position, and she is on affidavit, in any event. But given the length of the relationship, this is not a matter that would, in my view, operate in any meaningful way at this stage.
The fact is that the wife has deposed at considerable length to family violence. And I may say that no submissions were made by Mr Yarber which put that in issue. But even if he did, the fact that there has been an Intervention Order made recently, extending an Intervention Order to 2026, speaks for itself. This would give rise conventionally to a Kennon argument, and I would, in fact, find that on the materials as they stand. I also refer to the negative contributions made by way of the accumulation of enormous amounts of rubbish on the parties’ properties, shown very vividly in the photographs that have been provided in colour today, although they were previously already annexures to the wife’s affidavit.
If one was to take all of these matters together, bearing in mind that otherwise the parties appear to have generally done their best as workers and homemakers, I would have no hesitation in saying that I could assess the contributions as being some 60 per cent to the wife and 40 per cent to the husband.
Turning to the question of future needs, there are two children for whom the wife is solely responsible. Her capacity to make any money by way of earnings is minimal.
The husband has, to date, pointed to things which are difficult for him in his future needs. He points to mental ill health, and although I am not a doctor, it is plain that he is at least very distressed in today’s hearing. And even if I were to assume, with no sworn evidence whatever to support it, that the husband’s future earnings capacity is limited, once again, bearing in mind the wife’s hardship in terms of earnings, and her responsibility for the children for years yet to come, once again, an adjustment of a further 15 per cent would in no ways be outside the range.
Bearing in mind that the cumulative total of those two matters would be 25 per cent, the wife’s claim for 70 per cent of the non-superannuation assets is plainly just and equitable, and I am going to make the orders she seeks accordingly. So far as superannuation is concerned, this is a long relationship. There is no precise evidence, as I understand it, as to exactly when the amounts that now stand to the parties’ credit were accumulated, but it is reasonable to assume, especially in the absence of any affidavit material from the husband, that the vast bulk would have been obtained during the current relationship, and in my view, an equalisation of superannuation is just and equitable, and indeed, it is taking both that and the 70/30 split together, that in my view produces a result in which the orders sought by the applicant wife are plainly just and equitable, and should be made.
I would observe in passing that the application for the sum of $2617.96 referred to at order 13 of the proposed orders is, in my view, irresistible. Then there is the question of the application for costs more generally.
RECORDED: NOT TRANSCRIBED
The applicant seeks indemnity costs. The first basis upon which that is pressed is a Calderbank letter which is in substance what it was, dated 11 September 2019. The first thing to be said, of course, is that that letter could only operate prospectively. It could not operate respectively, in any event. The letter did put the receiver on notice that if it was not accepted, there would be an application for indemnity costs. The letter was not actually one that contained any precise amount of time as to how long it was open for acceptance, and the amount by which the applicant has succeeded does not, in my view, significantly exceed the amount in the letter of offer. So I do not regard the Calderbank letter as being either in terms of an application for indemnity costs on a stand-alone basis, or as a matter pursuant to section 117, as being of any great moment.
Considering the application for costs more generally, the first matter the Court is required to consider are the financial circumstances of each of the parties. And I have already observed that the wife’s circumstances are difficult. And the only reason I have no detailed information about the husband’s circumstances is because he has failed properly to participate in the proceeding. However, I note that pursuant to the orders I have made, the wife’s financial position can only be substantially improved.
The next matter is Legal Aid, which is irrelevant.
Certainly the conduct of the respondent husband has been lamentable. He has failed to participate in the proceeding. Next, some of the orders sought were necessitated by failure of Mr Yarber to participate properly, not least in the additional hearing we have had today. The husband has not been wholly unsuccessful, but he has been wholly unsuccessful insofar as he has contested the matter.
In my view, taking these matters together, the wife should have her costs of the proceeding, but on a party/party basis. I don’t think that sending the parties off to taxation and all the extensive processes that would involve is appropriate. I note that this being a one-day hearing, and subject to any submissions to the contrary from Counsel for the applicant, that the rough ballpark figure was scale costs, is about $15,000, taking the various steps in the costs and adding them up.
I think that the wife should have a greater figure than that because of the non-cooperation of the respondent, and I would be minded to fix those costs at $20,000, unless the applicant seeks that they be assessed by a registrar.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 22 October 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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Statutory Construction
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