AHSAN & AHSAN

[2020] FamCA 69

FAMILY COURT OF AUSTRALIA

AHSAN & AHSAN [2020] FamCA 69

FAMILY LAW – ENFORCEMENT OF ORDERS– Where the wife seeks orders that the husband vacate the former family home – Where the wife seeks pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) that a warrant for possession of property issue requiring the husband to vacate the property and give vacant possession to her if he fails to vacate within the time ordered – Where the final property orders provided for the sale of the former family home – Where the husband has obstructed the wife in making arrangements to sell the former family home – Where the wife seeks other orders relating to the enforcement of the final property orders – Orders made largely as sought by the wife.

FAMILY LAW – COSTS – Where the wife seeks orders that the husband pay her costs of the enforcement application in the sum of $15,000 – Where circumstances justify the order for costs as sought by the wife – Order made as sought by the wife.

Family Law Act 1975 (Cth) s 105, 117
Family Law Rules 2004 (Cth) r 19.18, 20.54

Ahsan & Ahsan [2019] FamCA 616
Ahsan & Ahsan [2019] FamCAFC 244
Colgate Palmolive v Cussons Pty Ltd [1993] 46 FCR 225
Collins, MH and Olsthoorn, QPW (2005) FLAC 93-216
Harris & Dewell & Harris (Costs) [2018] FamCAFC 180
In the Marriage of Kerr (1983) 8 Fam LR 1023
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kohan & Kohan (1993) FLC 92-340
Parke & the Estate of the Late A Parke (2016) FLC 93‑748
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311
In the Marriage of Ramsey (1983) FLC 91-301
Stephens & Stephens [2010] FamCAFC 172
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT: Ms Ahsan

RESPONDENT: Mr Ahsan

FILE NUMBER: PAC 2493 of 2016

DATE DELIVERED: 11 February 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ahmed

SOLICITOR FOR THE APPLICANT: Lawfirm Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

Orders

1. That within 14 days of the date of these orders the husband do all acts and things to vacate the property situated at B Street, Suburb C and being the whole of the land in title reference … (“the Suburb C Property”) and remove all of his chattels and possessions therefrom and deliver up vacant possession to the Wife, by 9.00am on the fourteenth day after the making of these orders and thereafter the wife be entitled to sole possession of the property for the purposes of conducting the sale of the property pursuant to these orders.

2. That pursuant to the Family Law Rules 2004 (Cth) rule 20.54 a Warrant of Possession issue in the form of the document annexed to this Order but that execution thereof be stayed until the 15^th day from the date of these orders.

3. That upon the husband vacating the Suburb C Property pursuant to order 1 of these orders the husband be and is hereby restrained by injunction from entering upon the Suburb C Property and from causing any other person acting on his behalf or upon his instruction to enter the property for any purpose until further order.

4. That the husband be restrained by injunction from doing any act or thing which has the effect of devaluing the Suburb C Property or causing damage or destruction to the property or any part of it or its surrounds, or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

5. That the wife do all acts and things and sign all documents necessary to cause the Suburb C Property to be sold.

6. That the wife in her capacity as trustee for the husband and the wife in respect of the sale of the Suburb C Property is entitled to do any or all of the following for the purpose of effecting the sale of the property on her own behalf as trustee for the husband pursuant to these orders:

   (a)       Instruct any solicitor or conveyancer to undertake the conveyancing of the property including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract for sale;

   (b)       Instruct a real estate agent of her choosing to conduct a sales and marketing campaign for the property and thereafter the auction of the property including signing any agency agreement or authority for any reasonable disbursement for the sales and marketing campaign, authorise the auction of the property, set the reserve price for the property in consultation with the real estate agent, negotiate with any prospective purchaser at any auction and authorise the acceptance of a sale price, and authorise such other action as may be required to effect the sale of the property;

   (c)       Sign any request to discharge the mortgage registered over the property and give authority to discharge the same;

   (d)       Sign any contract for the sale of the property;

   (e)       Sign any Memorandum of Transfer for the Suburb C property in favour of the purchaser;

   (f)        Sign any other document required of the parties in order to give effect to the sale of the property;

   (g)       Authorise the payment of funds in satisfaction of the mortgage debt secured over the title to the property and any rates and charges with respect to the property upon the settlement of the sale;

   (h)       Authorise the payment of fees and disbursements to the real estate agent and lawyers engaged with respect to the sale of the property;

   (i)        Authorise the drawing of cheques for the disbursement of the proceeds of the sale of the property pursuant to these orders;

   (j)        Do any other act or thing necessary in order to effect the sale of the property.

7. That upon the wife taking vacant possession of the Suburb C Property she is authorised to:

   (a)       Permit any other person to occupy the property for the purposes of effecting inspections, maintenance and repairs and to ensure that the property is secure, clean and maintained and otherwise in an appropriate condition to effect a favourable sale;

   (b)       Undertake reasonable maintenance and rectification of the property for the purposes of the sale of the property including but not limited to:

   (i)Removing any rubbish or abandoned items;

   (ii)Removing any motor vehicles and motor vehicle parts and causing the same to be stored and valued;

   (iii)Removing any equipment and tools left by the husband at the property;

   (c)       Undertake any necessary repairs to the property for the maintenance, rectification, repair of the property;

   (d)       Authorise any other person to attend upon the property for the maintenance, rectification, repair of the property; and

   (e)       Do any other act or thing reasonably necessary to prepare the property for sale and to maintain it pending settlement of the sale.

8. That the wife be at liberty to apply upon short notice to have the matter re-listed before Her Honour Justice Hannam in respect the sale or implementation of these orders.

9. The husband pay the wife’s costs of this application in the sum of $15,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2493 of 2016

Ms Ahsan

Applicant

And

Mr Ahsan

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The parties were previously engaged in proceedings relating to a property settlement and the future parenting of their five children following the breakdown of their 14 year marriage. Following a lengthy hearing orders were made on 2 September 2019 (“the final property orders”) to resolve the dispute.

2. The husband subsequently filed an appeal which was later deemed abandoned due to his failure to comply with requirements to file a draft index of the appeal book as required. The husband then filed an application to reinstate the appeal which was dismissed.[1]

   [1]Ahsan & Ahsan [2019] FamCAFC 244

3. The final property orders provided for the sale of a property at Suburb C (“the former family home”) and distribution of the sale proceeds. The wife was appointed as trustee for the sale of the former family home and pending completion of the sale the husband was required to make various payments and was restrained from further encumbering the property. Orders were also made that pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) a Registrar be appointed to execute any documents necessary to effect the sale of the former family home in the event that the husband refused or failed to sign necessary documents within seven days of a request of the wife.

4. When the final property orders were made and Reasons for Judgment delivered, the husband was residing at the former family home with three of the children as had been the arrangement for a number of years.

5. Shortly after the final property orders were made the wife began to take steps to sell the former family home including instructing a selling agent. The wife was advised by the agent that for the purposes of the sale he would need to gain access to the property to conduct an inspection, take photographs and other steps for readiness for a marketing campaign and to enable prospective purchaser inspections. The wife provided the agent with the only telephone numbers for the husband of which she was aware. The agent made numerous attempts to contact the husband but was unsuccessful. The wife engaged her solicitor who wrote to the husband’s solicitor but the wife and her agent had no success in making contact with the husband so the sale of the property has been unable to progress.

6. On 19 November 2019 the wife filed an application seeking to enforce the property orders and in particular seeking to have the husband vacate the former family home so that the necessary arrangements could be made in preparation for sale of the property. The wife seeks orders that the husband vacate the former family home and after 15 days a warrant of possession issue if he fails to do so. The wife also seeks that following the husband vacating the former family home he be restrained by injunction from entering or being within 500 metres of the property and from doing any act which has the effect of devaluing the property.

7. The wife also seeks other orders relating to the enforcement of the final property orders including orders pertaining to her powers as trustee which are discussed later in these Reasons.

8. The husband seeks orders that he be permitted to remain in the former family home until 14 days prior to the settlement date or in the alternative until 14 February 2020. He seeks additional orders that if made would require him to ensure that the selling agent has access as sought by the agent, that he maintain the home in a manner suitable for sale and sign all documents required by the selling agent.

Vacating the property

1. The first order sought by the wife is that within 14 days of the date of the orders the husband vacate the former family home, remove all his possessions from it and deliver up vacant possession to her and that she thereafter be entitled to sole possession of the property.

2. It is effectively the wife’s case that the husband has obstructed her in making the necessary arrangements to sell the property. She seeks this order and would hope that it be complied with so that the further step of gaining sole possession through a warrant of possession need not be pursued.

3. At the hearing of 15 December 2019 the husband then opposed an order requiring him to vacate the property within 14 days on the basis that he and the three children in his care wished to remain in the house which had been their home throughout their lives. In particular, he deposed at that stage that he had not made any enquiries nor had any arrangements in place for alternative accommodation. The husband was concerned that he would have no opportunity to secure rental accommodation particularly during the Christmas period. He also deposed to needing time to secure new accommodation and pack up the home. The husband did however concede that as an alternative he be allowed “until at least 14 February 2020” to vacate the home.

4. It was also submitted on the husband’s behalf that the wife as trustee for sale could make the necessary arrangements for the sale of the property while he continued to occupy the premises. It is the wife’s contention that the Court could have no confidence whatsoever on the basis of the husband’s conduct throughout the entire proceedings and in particular in relation to the sale of the home that the husband would not continue to thwart the sale of the property.

5. The husband does not challenge the wife’s evidence that he obstructed the wife in making arrangements to sell the property. I accept the submission made by Counsel for the wife that the husband proffered no explanation as to why there was an “absolute rejection” of attempts to facilitate inspections by real estate agents. In particular the husband provides no explanation for his behaviour set out in a letter from the agent appointed to sell the former family home exhibited in the proceedings. In that letter it is detailed that the real estate agency made numerous attempts to contact the husband via phone, by knocking on the door of the former family home and by leaving letters for him. It is also recorded in correspondence sent to the wife from the agency that when the agent finally made contact with the husband, the husband told the agent “I don’t have time for this” and shut the door in the agent’s face.

6. It was also submitted on behalf of the wife that the history of family violence between the parties as outlined in the final judgment (“the September 2019 judgment”)[2] causes the wife significant apprehension in making the necessary arrangements for sale with the continuing presence of the husband in the home where full access to the home is required by her.

   [2]Ahsan & Ahsan [2019] FamCA 616

7. In my view, the husband has been well and truly on notice since the wife’s application in November 2019 that the wife requires vacant possession of the property in order for it to be sold. He does not dispute her account in relation to his lack of cooperation and her inability to sell the property for so long as he remains in possession and does not permit access to it. In these circumstances I have no confidence that the husband will comply with any orders to ensure that the selling agent has access to the property, sign all documents required by the selling agent and do any other matters required for the purposes of the sale. This is particularly so having regard to his well-documented history over many years of failure to comply with a range of court orders, and his attitude towards the wife and anything that involves cooperation with her as set out in detail the September 2019 judgment.

8. The husband does not challenge the wife’s evidence about his lack of cooperation and his knowledge that the wife has been seeking vacant possession from November 2019. His reasons for resistance to an order that he vacate the property around the Christmas and New Year period are now irrelevant and he has had ample opportunity to obtain alternative accommodation. Further, as his alternative position is that he vacate from around 14 February 2020, I am easily satisfied that the wife’s order for vacant possession in 14 days is proper.

Warrant for possession

1. The wife seeks that the warrant for possession be made pursuant to rule 20.54 of the Family Law Rules 2004 (Cth) (“the Rules”). A warrant for possession of real property will authorise an enforcement officer to enter the family home and give possession to the wife.

2. The power to issue a warrant for possession of real property forms part of Part XIII of the Act providing for a process for enforcement of obligations other than an obligation to pay money.

3. Section 105 of the Act provides:

   (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.

   Note: For example, the Federal Circuit Court of Australia can enforce decrees made by the Family Court of Australia.

4. Rule 20.54 of the Rules provides:

   (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.  (emphasis added)

(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.

1. This Rule provides that an order for possession of real property may be enforced by a warrant for possession only if the respondent has had at least seven days’ notice of the order to be enforced before a warrant is issued. There is no doubt about the husband’s notice of the relevant order.

2. 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 own orders[3]. In In the Marriage of Kerr (1983) 8 Fam LR 1023, (“Kerr”) Nygh J drew attention to the use of the word “may” in section 105(1) of the Act as indicative of the discretion of the court to enforce orders. It was also discussed in Kerr that the authorities suggest that the court would only refuse the enforcement of orders if in the circumstances prevailing at the time it would be inequitable to do so. 

   [3] See In the Marriage of Ramsey (1983) FLC 91-301, Collins, MH and Olsthoorn, QPW (2005) FLAC 93-216, In the Marriage of Kerr (1983) 8 Fam LR 1023

3. The submissions made on behalf of the husband were directed only to the question of whether he should be required to vacate the premises in the timeframe sought by the wife. He did not address the exercise of discretion as to the issue of a warrant. Of course if he were to comply with an order to vacate the premises it will not be necessary for any warrant that does issue to be executed. This is clearly the intention of the wife in seeking to stay the execution of the warrant that she seeks for 15 days.

4. There is no evidence to suggest that it would be inequitable to enforce the orders made five months ago following very protracted proceedings.

5. The unavoidable delay in delivering judgment has afforded the husband ample time to vacate the former family home. Even on the orders sought by the wife, he will have 15 days from the date of the orders being made to vacate before a warrant is issued. This will mean a warrant would not issue until after the date in his alternative proposed order (14 February 2020).

6. In these circumstances it is clearly appropriate to make the orders as sought by the wife that a warrant be issued but its execution stayed in the event the husband does not vacate the home within 15 days of the order being made.

Other orders sought

Deposit

1. The next order sought by the wife is that she be entitled to request and obtain the deposit to be paid by the purchaser of the former family home as partial settlement of her property entitlement pursuant to the final property orders. It is her case that as the husband has not complied with an order that he pay her costs in relation to the earlier proceedings, and as she is employed on a casual basis, she has insufficient funds for her living expenses, accommodation and support of herself and two children in her care and to fund her litigation.

1. Counsel for the husband contends that the wife has already received a partial property settlement of $350,000 in the course of the proceedings and such an order is unwarranted. Counsel for the wife reinforced that the funds from the partial property settlement have been used entirely in the payment of legal fees incurred in the substantive proceedings.

2. The husband also expressed some concern about the practicality of such an order where a deposit would normally be held by an agent or solicitor as part of normal conveyancing practice rather than being released to a party pending final settlement of the sale. Counsel for the husband contended that if an order was to be made releasing the deposit the order should be released equally to the parties.  

3. The wife accepts that the release of the deposit would be dependent on the consent of the purchaser. It is also submitted on her behalf that the husband has no basis to contend he should be entitled to half the deposit given he is yet to comply with a previous costs order and the final property orders provide that any costs payable by him be charged against any distribution made towards him under the final property orders.

4. Ultimately the wife’s Counsel appeared to concede that the wife was not pressing for such an order as he conceded that it “may not even be an order your Honour needs to make”. Given this concession and that the release of the deposit in any event requires the purchaser’s consent, I am not satisfied that it is a proper order in the circumstances.

Powers as trustee

1. The wife also seeks orders which articulate the scope of her powers as trustee (where the final property orders have already appointed her as trustee) and specify the scope of what she is permitted to do in facilitating the sale of the former family home. It was submitted on behalf of the wife that where third parties are required to give effect to these orders there should be some detail of what the trustee’s duties encompass.

2. Counsel for the husband opposed this order on the basis that it was a wide order affording the wife very broad discretion in exercise of her powers as trustee. In particular it was submitted that the power to undertake repairs and reasonable maintenance of the property provided the husband with no input into such decisions.

3. The orders pertaining to the ambit of the wife’s power as trustee are entirely within the usual realm of what a party would be expected to do in exercise of her role as trustee. In these circumstances the orders will be made as sought by the wife.

Other

1. The wife seeks orders that the proper costs necessary to execute the warrant and orders associated with sale of the former family home are to be deducted from the husband’s share of the final property orders made prior to disbursement to him. Counsel for the husband contended that the final property orders already provide for the manner in which the costs associated with the sale of the former family home are to be treated and the wife now seeks to vary such an order. I am of the view that this order sought by the wife amounts to a variation of the final property orders and falls outside the scope of an enforcement application.

2. The wife also seeks that any deficiency in the payment of costs from the husband’s settlement be secured by way of charge as against another property which featured in the property proceeding. It was contended on behalf of the husband that the orders also already provide that any costs payable by the husband to the wife be charged against any distribution of the sale proceeds prior to him receiving that sum.

3. I accept the contention of the husband that the final orders already address the issue of security and as it was not advanced by the wife in her outline of case or in oral submissions through her Counsel why such an order is necessary, I am not persuaded that such an order is proper in the circumstances.

Costs

1. The wife seeks orders that the husband pay her costs in the lump sum of $15,000 and relies on her cost agreement annexed to her affidavit to support the making of this order.

2. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that it in the opinion justify it in doing so. Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.

3. The High Court in Penfold v Penfold[4] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [4] (1980) 144 CLR 311

4. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The matters relevant in this case are considered as follows. 

5. In the September 2019 judgment I identified that the financial inequality between the parties was significant with the husband being in a far superior financial position. At the date of the hearing of this application the wife had only recently gained casual employment but was unsure of her rate of pay having only worked three shifts in this role.

6. It is also of relevance that the wife has been largely successful in her application in that for the most part orders are made as sought by her.

7. The most significant factor to the issue of costs is that this is an enforcement application necessitated by the husband’s failure to comply with previous orders of the Court. The husband does not challenge the wife’s evidence that he obstructed the wife in making arrangements to sell the property.  The only reason the wife was compelled to bring such an application is due to a failure of the husband to comply with previous orders. I do not consider it just that the wife should bear responsibility for the costs she has incurred in bringing this application when these costs were entirely a result of the husband’s conduct. 

8. The husband seems to argue that the fact he had complied with some of the final property orders, such as continuing to pay the mortgage for the former family home, should be relevant to the determination of costs. I attach no weight to the husband’s submission that compliance with some orders of the court should favour him in determining the question of costs.

9. There is nothing to prevent any one factor being the sole determinant for an order for costs: see PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL[5].

   [5] (2005) 33 Fam LR 123

10. Balancing the relevant matters that I have set out, and attaching significant weight to the fact that this application was entirely brought about by the husband’s conduct following the making of final orders, I am satisfied that an order for costs should be made in favour of the wife.

11. The provision relating to the calculation of costs is set out in r 19.18(1) of the Rules which states:

    19.18  Method of calculation of costs

    (1)      The Court may order that a party is entitled to costs:

    (a)      of a specific amount;

    (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

    (c)to be calculated in accordance with the method stated in the order; or

    (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

12. In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

13. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93‑748 at [130]:

    If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

14. It was submitted on behalf of the husband that the Court should have regard to the Full Court decision in Stephens & Stephens [2010] FamCAFC 172 where it was said that an order for costs is made to compensate a party against an expense incurred in litigation and is not punitive in nature. The husband contended that the quantified costs sought by the wife must be at the “absolute upper limit” of what she could seek given the amount sought in the context of these enforcement proceedings.

15. The wife seeks an order that the husband pay her a fixed sum of $15,000. It was submitted on behalf of the wife that the sum sought by her is not punitive in nature as it reflects the costs reasonably incurred by the wife. Counsel for the wife expressed that the sum sought includes the two appearances before the Court (one appearance before a Judge and one before a Registrar) by Counsel and the instructing solicitor, the costs of preparing the application and the costs of preparing for hearing. The wife annexes to her affidavit a copy of the costs agreement between Counsel and Solicitors and her costs agreement with her solicitor to support her submission that this sum is reasonable in the circumstances. Although the costs agreement does not include an estimate for costs, it includes the various rates for professional work and court appearances for Counsel and the wife’s solicitors.

16. While the wife did not press an order for costs on an indemnity basis it would seem that the fixed sum of $15,000 represents a sum on this basis given the tenor of her submissions that this sum is “compensatory” in nature and as an order for indemnity costs was originally sought by her.

17. It is well-settled law that for indemnity costs to be awarded there should be some “special or unusual feature” in the case to justify the departure from party/party costs (Colgate Palmolive v Cussons Pty Ltd [1993] 46 FCR 225) (“Colgate”). The court has discretion under s 117(2) to award indemnity costs in “exceptional” circumstances (Kohan & Kohan (1993) FLC 92-340).

18. The category of cases in which an award of an indemnity costs order may be appropriate are not closed and the Full Court of the Family Court observed in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at [31]:

    … 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 order is sought. …

19. In Harris & Dewell & Harris (Costs) [2018] FamCAFC 180 (“Harris”) (20 September 2018) the Full Court said (footnotes omitted):

    23.In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”.  In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.

    24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation.  His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”. 

    25.The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]).  Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”

    26.Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater. 

20. I am satisfied that the “usual rule” that costs be paid on a party/ party basis should be departed from. The husband relies on the principle reiterated in Harris that an order for indemnity costs could “put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.  This does not in my mind carry much weight in these circumstances as I am satisfied, having regard to the information before me, that the sum sought by the wife is reasonable and compensatory in nature. An order should be made that the husband pay the wife’s costs in the specific sum sought by her.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 February 2020.

Associate:

Date:  11 February 2020