ADLER & MADIGAN
[2019] FCCA 194
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADLER & MADIGAN | [2019] FCCA 194 |
| Catchwords: FAMILY LAW – Interim – property. |
| Legislation: Family Law Act 1975 (Cth) s.79A |
| Cases cited: Badawi & Badawi [2016] FamCA 804 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Holland & Holland [1982] FamCA 31 |
| Applicant: | MS ADLER |
| Respondent: | MS MADIGAN |
| File Number: | BRC 2714 of 2018 |
| Judgment of: | Judge Spelleken |
| Hearing date: | 5 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Cornerstone Law Offices |
| Solicitors for the Respondent: | Raymond Murphy Lawyer |
THE COURT ORDERS:
That the sum of $28,016.65 be paid to the respondent from the funds held in the trust account of Spranklin McCartney Lawyers.
That the sum of $41,185.48 be paid to the applicant from the funds held in the trust account of Spranklin McCartney Lawyers.
That the sum of $11,998.80 be held in the trust account of Spranklin McCartney Lawyers.
That the respondent’s application to set aside the Order of 9 May 2018 be dismissed.
That the respondent be granted leave to file and serve a response in relation to costs within twenty-eight (28) days of the date of this judgment.
IT IS NOTED that publication of this judgment under the pseudonym Adler & Madigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2714 of 2018
| MS ADLER |
Applicant
And
| MR MADIGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court is asked to summarily dismiss the orders sought by the respondent husband Mr Madigan (‘the husband’) against the applicant wife Ms Adler (‘the wife’) filed on 2 November 2018 to set aside the final orders for a property settlement made by consent on 9 May 2018 (‘the Orders’).
The husband’s application was filed as a response to the wife’s Application in a Case which sought to enforce the final orders on 6 September 2018 for the division of the former matrimonial property at Property A with the husband.
The final property settlement orders are as follows:
1. That the net assets of the parties (including superannuation) be divided equally between the parties.
2. The real property situated at Property A (“the real property”) be listed for sale, forthwith, and the parties do all such things as may be necessary and pay all such monies equally so as to effect the sale of the real property and for the purposes of effecting the sale, the following shall apply:
a. The real property shall be listed for sale by private treaty with Mr B of Real Estate Agency C;
b. The listing price of the real property shall be such amount as is determined by the listing agent; and
c. The parties are to cooperate in every way with the listing agent in relation to the marketing of the real property for sale, including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the real property is clean, neat and in good order at the time of inspection by any prospective buyer.
3. In the event that the real property is not sold by private treaty in accordance with the preceding Order on or before sixty (60) days from the listing date, or there is not in existence an enforceable contract of sale for the real property, then the parties shall do all acts and sign all necessary documents and pay all such monies equally as to sell the real property by auction and the following shall apply:
a. The listing agent shall select the auctioneer;
b. The reserve price of the real property shall be nominated by the auctioneer;
c. The parties are to cooperate in every way with the listing agent and the auctioneer in relation to the marketing of the real property for sale, including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the real property is clean, neat and in good order at the time of inspection by any prospective buyer; and
d. The sale price shall be any amount in excess of the reserve price but in the event of the reserve price not being reached at auction, the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer to buy the real property received after the auction at a price that is at least 95% of the reserve price shall be accepted by the parties.
4. That in the event that the real property is not sold at the auction pursuant to the preceding order or within fourteen (14) days of the date of the auction by further negotiations, then the parties shall cause a further auction of the property to be held within sixty (60) days after the date and on the same conditions as the first auction.
5. That upon settlement of the sale of the real property, the proceeds of sale will be paid in the following manner and with the following priority:
a. Payment of the agents commission and auction expenses (if any) due on the sale;
b. Payment of the legal costs and disbursements on the sale;
c. To pay husband the sum necessary to equate to 50% of the net agreed pool calculated as follows:
i. The net agreed pool excluding the value of the real property is $958,648 (including superannuation); and
The husband is retaining net assets and superannuation to the value of $670,940 plus $30,000 by way of a superannuation splitting order in accordance with paragraph 7 below (being a total net value of $700,940);
6. That the Wife will make all payments in relation to the rates, water, and insurance in relation to the real property, and indemnify the husband and keep him indemnified pending the sale of the real property.
7. Pursuant to section 90MT(1) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Wife’s D Superannuation Fund superannuation interest, the husband is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $30,000 and there is a corresponding reduction in the entitlement of the Wife.
8. Having been afforded procedural fairness to the making of these Orders, these Orders are binding on the superannuation fund.
9. The operative time for these Orders is four (4) business days after service of the certified copies of the sealed Orders on the Trustee of the superannuation fund.
10. That within fourteen (14) days, the Wife will do all such things and sign all such documents to transfer all of her right, title and interest to the Husband in and to the following:
a. The E Bank investment account number …92 which is currently held in the parties joint names;
b. The E Bank investment account number …89 which is currently held in the wife’s name; and
c. The shareholdings in F Bank which is currently in joint names.
11. Unless otherwise specified herein and save for the purposes of enforcing any money due under the terms of the Orders:
a. The parties be solely entitled to the exclusion of the other to all other property including choses-in-action and superannuation, in the possession of such party as at the date of such Orders;
b. Insurance policies remain the sole property of the owner named thereon;
c. Each party be solely liable for and indemnify the other against any liability in their sole name or encumbering any item of property to which that party is hereby entitled pursuant to these Orders; and
d. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
12. Should either party fail, refuse or neglect to execute any document or do anything necessary to give effect to the Orders above, and pursuant to section 106A of the Family Law Act 1975, the Registrar of the Federal Circuit Court of Australia at Brisbane shall be and hereby is appointed to execute any deed or instrument in the name of the party and do all acts and things necessary to give validity to the operation of the deed or instrument.
13. Each party will bear their own costs of this Application.
Notation:
A. That the children be told that an agreement was reached between the parents that the house be sold.
Section 17A of the Federal Circuit Court of Australia Act 1999 (‘the Federal Circuit Court Act’), which is applicable to family matters,[1] provides that a summary judgment may be granted in favour of the applicant as follows:
[1] Maclean & Maclaen [2011] FamCAFC 148 .
17A
Summary judgment
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
In particular, s.17A(3) establishes that proceedings need not be hopeless or be bound to fail in order for the Court to be satisfied that there is no reasonable prospect of success.
In Spring & Spring,[2] Judge Reithmuller recognised that s.17A(3) is in the same terms as s.31A of the Federal Court of Australia Act 1976. The latter provision was the subject of discussion in Spencer v Commonwealth of Australia[3] by Hayne, Crennan, Kiefel and Bell JJ stating at [51] – [52]:
[2] [2014] FCCA 970.
[3] [2010] HCA 28
[51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
[52] Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
[53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners[69] and General Steel Industries Inc v Commissioner for Railways (NSW)[70].
…
[56] Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different enquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.
…
[58] How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes[82], as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
The husband does not particularise his case case in his response to the wife’s Application in a Case other than to advance several grounds on which the Orders should be set aside, which I will discuss below.
Competing Proposals
The husband seeks an order to set aside the final property settlement orders. His primary submissions rest on the grounds that the Order was made by reason of duress and the suppression of evidence.
The wife seeks an order that the net residue of the proceeds of sale held in Spranklin McCartneys Trust Account be disbursed in accordance with the Order.
Relevant History
On 20 September 2017, the parties attended a mediation with Mr Jordan of Counsel. The husband was represented at the time by Mr Dore, a solicitor of NR Barbi Solicitor. The wife has been represented by Ms Singh-Pillay of Cornerstone Law Offices since the commencement of these proceedings.
By the end of the mediation, the parties reached an agreement on the final property settlement and signed a heads of agreement on the basis that an application for consent orders would be submitted to the Court once the Trustee of D Superannuation Fund had been afforded procedural fairness.
On 9 May 2018, when the matter first came before His Honour Judge Lapthorn, the parties negotiated and finalised the interim orders with respect to the final property settlement. The husband had changed legal representation at this point, and was represented by Ms Stuchbery of Burns Law. His Honour was satisfied that the order reached with respect to the property adjustment was just and equitable.
Property A sold on … 2018 for the price of $817,000.00, after which the net proceeds of sale were partially distributed between the parties. The balance of the sum in the amount of $81,093.93 is held in Spranklin McCartneys Lawyers Trust Account.
The husband did not sign the Trust Account Authority authorising Spranklin McCartneys Lawyers to effect the remaining distribution of sale proceeds in accordance with the Order.
As I have mentioned above, on 6 September 2018, the wife filed an Application in a Case to enforce the Order. The husband filed his Response to the Application in a Case on 2 November 2018. He is now represented by Mr Murphy of Raymond Murphy Lawyer.
When the matter next came before me on 5 November 2018, I ordered that each party file and serve written submissions in relation to the husband’s application pursuant to s. 79A.
The Law
Section 79A(1) of the Act provides as follows:
79A
Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
After considering the submissions filed on behalf of the husband and wife and their proposals with respect to the residue of the proceeds of sale, I have taken into consideration the following authorities:
Ryan FM (as her Honour then was) in SH & DH (No. 1)[4] held at [47] – [48] that:
[4] [2003] FamCAFC 330
[47] When determining an application under s.79A(1)(a) the court must engage in four-stage process. The four stages are;
(i) Whether a ground, such as duress, under the section is established;
(ii) Whether the existence of that ground amounted to a miscarriage of justice;
(iii) Whether the court in its discretion should vary or set aside the order; and
(iv) Whether the court should make another order under s.79
[48] The Court must be satisfied that there has been a miscarriage of justice to justify setting aside or varying the consent orders. It is not sufficient to simply establish, for example, that the orders resulted from duress. Accordingly, if a ground exists for setting aside an order the court is not required to immediately set it aside. Rather, the applicant must establish a ground for relief and satisfy the court that it should exercise its discretion in their favour.
Bryant CJ in Lancer & Lancer[5] stated at [27] – [28] that:
27. It is pertinent in my view to note that section 79A itself contains two aspects. One is essentially a fact-finding exercise, that is whether the applicant can establish on the relevant evidentiary standard, namely the balance of probabilities, that there has been a miscarriage of justice by reason of one of the matters set out; in this case, suppression of evidence. That is often referred to as the threshold test.
28. The second part which follows from a positive finding about the first is a discretionary one, namely that the court may in its discretion vary or set aside the original order and, if appropriate, make another order.
[5] [2008] FamCAFC 112
The onus is therefore on the husband to meet the threshold test under s.79A in establishing that there has been a miscarriage of justice by reason of one of the matters set out in s.79A(1)(a) or (b) of the Act.
In considering the phrase “miscarriage of justice” Evatt CJ, Ellis SJ and Murray J held in Holland & Holland[6] at (77, 341) that:
To succeed in an application under section 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlement under section 79, does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable and the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice. This is not such a case.
[6] [1982] FamCA 31
Duress
The husband at paragraphs 49 – 50 of his written submission claims that he experienced duress on 9 May 2018 in light of the wife’s intention to finalise the matter ‘to prevent any further wastage of matrimonial assets’ as noted in her affidavit of 26 November 2018.
Authorities recognise that any allegation of duress should be interpreted ‘by reference to equity’s formulation…[7] Such an interpretation evaluates whether any pressure went beyond what the law would consider as legitimate, for instance if it involved unconscionable conduct[8] or the compulsion of mental harm.[9]
[7] Badawi & Badawi [2016] FamCA 804 at [56] (McLelland J).
[8] Crescendo Management Pty Ltd v Westpac Banking Corporation (98) 19 NSWLR 40, 45 – 46.
[9] In the Marriage of Kokl [1981]1 FamCA 60.
In his affidavit of 2 November 2018, the husband attributes the duress allegedly experienced to his poor health, inability to focus on substantive issues and the overbearing manner of the wife’s solicitor in insisting that the parties reach an agreement on 9 May 2018.
It is also worth noting that on the day, the husband suggested to his solicitor that they should leave, as he had not anticipated and was not prepared to engage in any mediation or negotiation on that day.
The wife submits that the pressure under which the husband was placed was no more than that which is commonly experienced by litigants who are unfamiliar with the legal process.
The fact that the husband had legal representation at the time is relevant. As was held by Aldridge J in Saleeby & Moon[10] at [60]:
…the husband had the benefit of legal representation. That makes the husband’s task in this case even more difficult. These authorities establish that the learned Federal Magistrate would have been entitled to rely upon consent of the parties who had the benefit of independent legal representation and little more to make the consent orders. The husband agreed to the consent orders having had the benefit of legal advice. Presumably, he thought they were appropriate at the time. He gave no evidence to the contrary.
[10] [2015] FamCA 43.
This accords with what McLelland J held in Badawi & Badawi[11] at [81]:
[11] [2016] FamCA 804.
The fact that both parties had the benefit of legal representation is of significance.
In view of the following considerations, I find that the husband has not adequately discharged the onus of proving the existence of any unconscionable conduct such that it could amount to duress:
a)The husband was represented by an experienced solicitor who would have represented his best interests during the negotiations.
b)The husband presumably received independent legal advice from his legal representative and was made aware of the options available to him on the day the Order was made.
c)The husband presumably chose to stay and participate in the negotiations rather than seek an adjournment.
d)At no time did the husband bring to the attention of the other parties or his legal representative the possibility of his mental health affecting his ability to understand the negotiations.
Suppression of Evidence
The husband contends that the parties reached an agreement on the Orders without the benefit of full and frank disclosure. He highlights differences in the estimated value of several items in the net asset pool. This includes a difference in the estimated value of the real estate in the property pool in the amount of $106,316.00, the estimated value of the share portfolio in the amount of $45,861.00 and the estimated value of liabilities with respect to the wife’s debt owed to her family members in the amount of $46,000.00.
These differences arise from the asset schedule that was used during the negotiations on 9 May 2018. It is pertinent that this asset schedule was prepared on the basis of the affidavits filed by both parties. It is therefore unclear why these concerns have only now been raised, since the husband was given every opportunity to discuss any material differences of the estimated values on the day the Order was made.
Further, as noted by the wife in her submissions filed 26 November 2018 and annexed to her affidavit of the same date, disclosure had been made in accordance with the Federal Circuit Court Rules by way of an email sent to the husband’s previous solicitor, Mr Dore, on 18 September 2017.
It seems to me that the husband’s claim with respect to the alleged differences in value contained in the asset schedule more appropriately concern the competence of his legal representative at the time in carrying out the negotiations and handling the case.
It follows that the husband has also failed to prove that, on the balance of probabilities, there was a miscarriage of justice by the suppression of evidence.
In light of the above, the Order shall remain in force and the net residue of the proceeds of sale of Property A shall be disbursed in accordance with the Order.
Any Other Circumstance
I turn now to consider whether the Order can be set aside on the basis of ‘any other circumstance’. This phrase is to be given a wide, natural meaning,[12] it remains constrained by the phrase ‘miscarriage of justice’.[13] Accordingly, any decision to set aside the Order under this limb should concern whether the trial was unfair, not whether the result was unjust.[14]
[12] In the Marriage of Kokl [1981] 1 FamCA 60.
[13] In the Marriage of Gebert [1990] FamCA 105.
[14] In the Marriage of Clifton and Stuart [1990] FamCA 154, [25].
In Etheridge & Goddard,[15] Judge Brown referred to the proper interpretation of s. 79(1)(a) of the Act at [22]:
In this context, if it established that the phrase any other circumstance arising in section 79A(1)(a) is not to be read ejusdem generis with the preceding words of the section. However the expression is to be read within the concept of a miscarriage of justice being established.
[15] [2017] FCCA 800.
The husband alleges that the Court was not informed of several factors that the Court ordinarily has regard to under s .75(2) of the Act, such as:
a)The husband’s poor health;
b)The husband’s financial state
c)The husband’s mental and physical capacity to gain employment
d)The wife’s entitlement to a pension of approximately $366.00 per fortnight
e)The husband’s efforts to obtain qualifications and alternative work to his former occupation as a professional.
The husband pointed to several additional factors which he felt did not receive adequate attention by the Court including, but not limited to:
a)Significant redundancy contributions made by the husband
b)Work bonus contributions made by the husband
c)Overall contributions made at a higher rate of income by the husband during the course of the relationship
As mentioned above, it appears that this submission has arisen because of a failure of the husband’s former solicitor to raise such matters either during negotiations or before the Court. I should reiterate that incompetent legal representation will not itself be sufficient to establish a finding for the miscarriage of justice unless it affects the judicial process or the fairness of the trial.[16]
[16] In the Marriage of Clifton and Stuart (1990) 14 Fam LR 71
In response, the wife submits at paragraph 76 of her written submissions that the parties were represented by experienced legal representatives during the negotiations and reached an agreement on a commercial basis after considering all relevant factors under s.79 and s.72(2) of the Act.
Accordingly, I find that there has been no miscarriage of justice by reason of any of the matters set out in s. 79A(1)(a) or (b) of the Act and as such do not find it necessary to vary, set aside or make another order.
It is therefore my view that the husband’s application to set aside the final orders for property settlement has no reasonable prospects of success and should be dismissed.
Division of Proceeds of Sale
When the matter was before me on 5 November 2018, the wife’s solicitor handed up a draft setting out in detail the way in which the proposed balance payable to the husband was calculated.
A finalised version of the calculation is set out in paragraph 110 of the wife’s affidavit of 26 November 2018. It is based on the overall asset pool of the parties, including any superannuation benefits each party is entitled to, and the value of cash and shares retained to the husband. The ending balance payable to the husband is the sum of $40,005.45.
The husband did not have any opposing submissions or counterproposals to make on the calculations. I should note that I asked the husband’s solicitor, Mr Murphy, if his client would be agreeable to the ending balance and the calculations set out in the proposed orders made by the wife in the event that the s.79A application was dismissed. Mr Murphy submitted to the effect that his client would not be making any objections to what would ultimately be a marginal disagreement in figures.
In light of the above, I find it appropriate to adopt the wife’s proposed orders, save for a number of amendments that I will highlight below.
The issue of costs remains outstanding. I understand that the wife is asking the Court to award costs on an indemnity basis in her favour. As established at paragraph 106 of her affidavit, the wife has incurred legal costs in the sum of $11,988.00 from 17 August 2018 to the date of the affidavit filed on 26 November 2018. I think it would be prudent for that amount to remain in trust pending the outcome of the proceedings with respect to costs.
I recognise also that the husband has not had an opportunity to address the wife’s submissions as to the basis or quantum of the costs order. Accordingly, I will grant the husband leave to file a response to the wife’s submissions on costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Spelleken
Date: 1 February 2019
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