Costs for Setting Aside Notices to Produce in Family Court Cases

The court ordered the defendant to pay the plaintiffs' costs for setting aside notices to produce and reserved the costs of the amended notice of motion for the Family Court of Australia. The decision was based on the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] and anor v [NAME] anor (No 3) [2013] NSWSC 1937 Hearing dates: 17 October 2013 Decision date: 20 December 2013 Before: Bellew J Decision: (1)The [NAME] defendant is to pay the plaintiffs' costs of the application to set aside the notices to produce. (2)The costs of the amended notice of motion filed by the [NAME] defendant are otherwise reserved. (3)The parties have liberty to restore the matter to the list on 7 days notice once the proceedings in the Family Court of Australia have concluded. Catchwords: COSTS - transfer of proceedings to Family Court of Australia - no point of principle Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987 Cases Cited: [NAME] & anor v [NAME] & anor [No 1] [2013] NSWSC 1478 [NAME] and anor v [NAME] and anor [No 2] [2013] NSWSC 1488 Category: Principal judgment Parties: [NAME] - First plaintiff [NAME] - [NAME] plaintiff [NAME] - First defendant [NAME] - [NAME] defendant Representation: [NAME] - First defendant [NAME] - [NAME] defendant [NAME] - First defendant [NAME] - [NAME] defendant File Number(s): 2013 / 51335 Publication restriction: Nil

Judgment 1On 15 October 2013 I ordered, pursuant to the provisions of 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987, that the proceedings numbered 2013/00151335 commenced in the Common Law Division (Possession List) of this Court were to be transferred to the Family Court of Australia (see [NAME] & anor v [NAME] & anor (No 2) [2013] NSWSC 1488). 2In a separate judgment (see [NAME] & anor v [NAME] & anor (No 1) [2013] NSWSC 1478) I ordered that notices to produce issued by the [NAME] defendant to the plaintiffs and to the first defendant should be set aside. 3Having heard further submissions from the parties, it is now necessary for me to determine the question of costs, firstly arising from my decision to set aside the notices to produce, and secondly, arising from my determination that the proceedings should be transferred to the Family Court of Australia.

THE NOTICES TO PRODUCE 4The reasons which led me to make an order setting aside the notices to produce are set out in my earlier judgment. Counsel for the plaintiffs submitted that there was no reason why costs should not follow the event in respect of that aspect of the matter. The first defendant's solicitor, who appeared before me on the argument in relation to costs but who did not appear when the notices to produce were set aside, submitted that the costs ought be reserved. Specifically, and notwithstanding the fact that counsel then appearing for the first defendant joined in the application brought by the plaintiffs to set aside the notices to produce, no order for costs in favour of the first defendant was sought. 5Counsel for the [NAME] defendant submitted that it would not be appropriate to make a separate order in relation to such costs because it would be tantamount to "carving out" the costs of a portion of the hearing of the notice of motion which sought a transfer of proceedings. He also relied upon correspondence which had passed between the parties prior to the issue of the notices.

CONCLUSION 6In my view, there is no reason why an order for costs should not be made in favour of the plaintiffs in respect of the costs arising from the application to set aside the notices. In reaching that decision, I have had particular regard to the fact that when the issue arose in the course of the hearing, and when an indication was given by counsel for the plaintiffs that the application was to be made, counsel for the [NAME] defendant made it clear that he was in a position to deal with the matter immediately. 7I have also had regard to the fact that I was not taken, in the course of argument, to any evidence which was said to support the various assertions made regarding the validity of the notices (see [NAME] and anor. v [NAME] and anor. (No. 1) at [17]). 8In view of the position which was taken by the solicitor for the first defendant on this issue, the order for costs will be made only in favour of the plaintiffs.

THE AMENDED NOTICE OF MOTION 9Counsel for the plaintiffs made two submissions in relation to the costs of the amended notice of motion. Firstly, he submitted that notwithstanding the fact that the [NAME] defendant had succeeded in obtaining the order sought, costs for the period up to 23 July 2013 should be awarded in favour of the plaintiffs. The basis of that submission was that up until that time, the notice of motion had sought relief which was (inter alia) not within the Court's power to grant and that this necessitated the filing of an amended notice of motion. As to the period after 23 July, counsel for the plaintiffs submitted that costs should be reserved pending the outcome of the proceedings which were transferred. 10The solicitor for the first defendant submitted that the entirety of the costs of the notice of motion should be reserved for determination of the Family Court of Australia. 11Counsel for the [NAME] defendant initially submitted that as his client had succeeded the notice of motion, an order for costs should be made in her favour. When it was pointed out that the amended notice of motion sought an order that costs be reserved, counsel submitted that in the event that I was to make such an order, the costs should be reserved for determination by the Family Court.

CONCLUSION 12It is conceivable that aspects of the outcome of the proceedings which have been transferred will impact upon the exercise of the discretion to award costs. In these circumstances, it is appropriate that the costs of the amended notice of motion seeking the transfer be reserved. 13The only remaining question is whether those costs should be reserved for determination by this court or by the Family Court. In circumstances where the issue of the appropriate costs order arises from an amended notice of motion dealt with by this court, I see no reason why the determination of that issue should be left to another jurisdiction.

ORDERS 14For the forgoing reasons I make the following orders: (1)The [NAME] defendant is to pay the plaintiffs' costs of the application to set aside the notices to produce. (2)The costs of the amended notice of motion filed by the [NAME] defendant are otherwise reserved. (3)The parties have liberty to restore the matter to the list on 7 days notice once the proceedings in the Family Court of Australia have concluded.

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