Alden & Alden (No 4)
[2024] FedCFamC1F 57
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alden & Alden (No 4) [2024] FedCFamC1F 57
File number: CAC 1359 of 2022 Judgment of: CAMPTON J Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – COSTS – Where the wife seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of substantive s 79 proceedings in a fixed sum discounted from that incurred on an indemnity basis – Where the husband opposes the making of a costs order for the substantive proceedings and seeks his costs of the costs application – Where the husband failed to comply with his obligations codified in ch 6 of the Rules in the substantive proceedings, including a calculated disclosure failure of a post separation $5,000,000 gift from his parents – Where the wife incurred unnecessary costs to adduce evidence of that which the husband had a duty to disclose – Where the husband’s secretion of relevant facts identifying the property of the parties impacted on the capacity of the wife to consider offers of settlement and compromise the litigation – Costs ordered for both the substantive proceedings and the costs application in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79 and 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, rr 1.04 and 12.17
Cases cited: Alden & Alden (No 3) [2023] FedCFamC1F 791
HDM & MM and SJM [2006] FamCA 47
Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Sfakianakis& Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 21 November 2023, 9 February 2024 Place: Sydney Counsel for the Applicant: Ms Mooney SC Solicitor for the Applicant: Orman Solicitors Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: King Cain Solicitors ORDERS
CAC 1359 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALDEN
Applicant
AND: MR ALDEN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Within 28 days the husband pay the wife’s costs fixed in the sum of $340,000.
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 Alden & Alden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Ms Alden (“the wife”) and Mr Alden (“the husband”) were engaged in proceedings adjusting their property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) heard over five days commencing on 4 September 2023. Reasons for judgment were published and orders made on 22 September 2023. These reasons assume familiarity with the primary judgment (see Alden & Alden (No 3) [2023] FedCFamC1F 791 (“Alden (No 3)”).
For the reasons that follow, the husband is ordered to pay the wife’s costs of the substantive proceedings fixed in the sum of $300,000, and the costs of the Costs Application fixed in the sum of $40,000, being a total of $340,000, within 28 days.
BACKGROUND
The husband and the wife married in 1997. They have two children, both of whom are now adults. They separated on 27 May 2020 and were divorced in 2023.
The wife in her Initiating Application filed 15 July 2022, sought orders for the adjustment of property. The husband in his Response to an Initiating Application filed on 12 September 2022 sought different orders as to the adjustment of property. On 9 December 2022, the matter was placed on the Major Complex Financial Proceedings list.
The central issues within the substantive determination were as to the respective contributions of each of the parties, or those made on their behalf, to their joint Rural Enterprise conducted from F Street, Town G NSW (“D Property”) in conjunction with a number of other farming properties, as to the value of those properties and other items, and as to which of the parties would retain items of real and other property in specie.
The husband and the wife engaged in an unsuccessful mediation on 19 November 2021, prior to the filing of the proceedings.
The s 79 orders as made provided for the wife to receive 52.5 per cent of the value of the property of the parties, being $14,641,884, and for the husband to receive 47.5 per cent, being $13,247,418.
THE COMPETING RELIEF AS TO COSTS
Pursuant to Order 30 made 22 September 2023 the wife filed an Application in a Proceeding on 20 October 2023 seeking that the husband pay her costs (“the Costs Application”). On 2 February 2024 she filed and prosecuted with leave an Amended Application in a Proceeding seeking:
1. Pursuant to s117(2) of the Family Law Act 1975, the Respondent Husband pay the Applicant’s Wife costs from 1 February 2022 to 8 September 2023 in the sum of $311,656.97.
2. That the Respondent Husband pay the Applicant Wife’s costs associated with this Application on an indemnity basis in the sum of [$54,637].
(Quantum sought in paragraph 2 orally amended absent objection during the hearing)
In his Response to an Application in a Proceeding filed on 13 November 2023 the husband sought that the wife’s relief for costs be refused, and for the wife to pay his costs of opposing the Costs Application.
THE LAW
The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
The wife bears the onus to establish circumstances which justify departing from the position that each party pay their own costs, for the making of a costs order in her favour. If the wife establishes there are circumstances justifying a costs order, the next consideration is on what basis should costs be paid.
The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.
CONSIDERATION
After the s 79 determination, each party has the benefit of significant property. The parties’ financial circumstances are a factor to be given some weight.
The wife identified the husband’s conduct by way of his disclosure failures, forcefully submitting that such failures throughout the proceedings impacted on her conduct in the litigation, including as to “every letter, every meeting, every mediation or interlocutory proceedings”. She further submitted:
6.It is the wife’s submission that optimally, the husband should bear her costs of the entire litigation, because at all material times he knew that the asset pool was $5million higher than the one she thought it was. At all times, the wife was running the litigation on a mistaken set of facts. However, the wife takes a pragmatic view and seeks indemnity costs of specific events which were caused by the husband’s many repeated failures to disclose, as set out below.
7.The learned trial judge canvassed the duty to disclose in his reasons and his dicta from paragraph 55-57 of His Honour’s reasons delivered 22 September 2023 is respectfully adopted. His Honour made findings as to the husband’s behaviour at paragraphs 89-91 of his reasons and they are respectfully noted.
8.The most egregious example of the husband’s failure to disclose, of course, is his failure to disclose the $5million gift. But there are other instances of his deceit and failure to disclose; and they will be particularised, below.
The wife submitted that she was “operating under a mistaken premise” at the mediation of 19 November 2021. She submitted that “a major sticking point” throughout the litigation was the weight to be placed upon her contributed gifts and inheritance from her family, with a value totalling $5,487,826. She said that a significant adjustment was sought in her favour to recognise this contribution. She contended that had she known of the $5 million gift from the husband’s parents, she would have been able to “factor this into her approach at mediation” and implicitly in the conduct of the proceedings.
The wife further submitted that the husband “caused an avalanche of unnecessary and expensive correspondence and court applications”, including:
·Causing his solicitor to write to the wife’s solicitor and assert that he had no interest in any estate or trust, or the sale proceedings of his parents property;
·Diverting off-farm contracting income to his personal account whilst using equipment owned by the farm, charging GST and using the Trust’s ABN;
·Selling a motor vehicle owned by the Rural Enterprise and purchased a new one through the Trust, contrary to Order 4(ii) made on 8 November 2022;
·The wife having to issue 14 subpoenas, two of which were the subject of objection, attempting to obtain the material she had sought from the husband; and
·Causing the wife to withdraw $600,000 from the E Trust monies, although this was later remedied by agreement at the conclusion of the trial.
The wife’s submissions echo from the findings made in the primary reasons, especially as identified in bold:
78 The husband agreed that in the second paragraph of the email he was referring to the $5 million gift. He agreed that as at the date of the email (or by February 2022) he knew that his parents had offered those monies to him and that he had told them to hold on to the monies until after these proceedings were over. As recorded earlier, his mother’s evidence was that the $5 million was deposited into a discrete NAB account to which the husband could request access to and receive from 28 April 2022.
79He further agreed that it was his proposal for a fiction to be created that the plant and equipment he was to receive by way of gift from his parents would be said to be instead characterised as provided by way of loan.
80The husband conceded that the contrivance as to the plant and equipment and his course of secreting the gift were efforts on his part to minimise the pool of property available for adjustment between he and the wife. I so find.
81He agreed that he had not told or disclosed to the wife the fact of the $5 million gift and that it only came to light because of the subpoena documents produced at the wife’s request in the week prior to the trial. I so find. I find that the husband’s trial affidavit was misleading by omission as to his beneficial entitlement of the $5 million gift from his parents at the date it was sworn.
82The husband accepted that this meant the wife had been forced to make financial decisions directly impacted by his disclosure failures. This included at the failed mediation in November 2021 and by way of her agreement to withdrawing $600,000 from [E Trust]. I find it also impacted on the fact and the value of drawings from the Trust pursuant to agreements and court orders and the unilateral purchase of [Motor Vehicle 7] by the husband through the Trust.
…
87The 2022 financial statements of the Trust (Exhibit 10) record that in the 2021 tax year the off-farm contract income of the Trust was $95,840 and in the 2022 tax year it was $3,662. Having regard to the husband’s disclosure failures, I find that the off-farm contract income for the Trust in the last tax year ended 30 June 2023 is unknown. It may or may not be a significant sum.
88The wife’s affidavit records the husband working […] from [mid to late] 2022. She gives unchallenged evidence, that I accept, that “after numerous requests” he disclosed pay slips recording him earning about $800 per week from [the work]. She contrasts these belatedly disclosed documents against the contents of his financial statement sworn 12 September 2022 recording his sworn evidence as to earnings of $100 per week from [that work]. It is uncontroversial that in addition to the drawings obtained by the husband from the Trust as identified earlier in these reasons, the costs of the husband's rental accommodation were met by the Trust as were his vehicle running and maintenance costs. He has little savings. The available inference that I draw is that the funds and benefits received both directly and indirectly by the husband post separation well exceeded his reasonable periodic expenses.
…
90I find that the husband:
(a) Engaged in an informed, considered and calculated scheme to deceive both the wife and the court as to his relevant financial circumstances;
(b)Provided an undertaking as to disclosure as filed on 12 September 2022 at a time when he was informed by his experienced legal representatives as to the nature and content of that undertaking, that the undertaking was knowingly false, and it was given while being aware that the wife would rely on its integrity. The $5 million held by his parents was available to him more than three months earlier, being from 28 April 2022; and
(c)Persisted to maintain the fiction as to his true financial circumstances up and including the fourth day of the five day trial event, including by way of the omission of information in his trial affidavit as to the provision of the $5 million gift and the unsuccessful prosecution of his application as determined by Schonell J on the first day of the trial, such that he only admitted his deceptions when ultimately cornered by the wife’s forensic processes.
91I find that the husband has not complied with his positive obligation to disclose material facts, information and documents to provide a clear and comprehensive understanding of his relevant financial conduct as to current assets, liabilities and resources. I find that absent verification, any contention made by the husband as to his financial conduct post separation is unreliable, including as to the contents of his trial financial statement.
(Emphasis added)
The husband submitted in the costs hearing:
14.It is contended by the husband that the 2.5% adjustment in favour of the wife has adequately compensated the wife for the husband’s non-disclosure and that a further compensation in favour of the wife as a consequence of non‑disclosure would be a duplication or “double dipping”.
The husband could not identify any authority to support this submission. That said, the husband appropriately conceded during the costs hearing that he could not be heard against accepting the proposition that disclosure is a powerful factor as to costs.
I find that the disclosure failures of the husband, by way of content and impact, fell into two categories, both being relevant factors pursuant to s117(2A) of the Act (see HDM & MM and SJM [2006] FamCA 47 (Kay, Holden and Coleman JJ at [27]).
The first was to the inadequacy of his disclosure as recorded at [87] and [88] of the primary reasons. The undisclosed property and income were considered in the adjustment to the contribution findings at [147] in the primary reasons. It was revealed and identified as to broad category but not as to quantum or value. The wife incurred unnecessary costs in adducing evidence to ground the findings made on this subject matter.
The second was as to the forensic processes of the wife that revealed and identified the fact of, and progress the valuation of, property that was not disclosed. This includes the $5 million the husband received from his parents post separation, ultimately included in the identification of the property of the parties in the s 79 enquiry. The husband’s letter from his solicitors dated 2 February 2023 made a positive assertion that he had no interest in the sale proceeds of his parent’s property (being the source of the $5 million). The contents of his trial affidavit gave the same evidence by omission. His undertaking of disclosure was corrupted. His false representations were calculated for the purpose of financial advantage. The inclusion of the $5 million gift as property in the balance sheet by the time of the trial was only achieved because of the dogged forensic application of the wife.
I find that each these categories of the disclosure failures of the husband are a relevant factor as to costs, attracting significant weight. The litigation was enlarged and complicated by the necessity of the forensic processes the wife was required to pursue to obtain that which the husband ought to have voluntarily disclosed. This included requests for disclosure by way of letter, considering responses thereto, the issue of subpoena (14 in total), court appearances on objections taken to subpoena (two objections, including achieving a costs order payable by the wife), obtaining directions for disclosure, the marshalling of volumes of documents, engaging with false affidavit evidence adduced by the husband, and obtaining affidavit evidence from the husband’s mother, all of which should not have been necessary. The costs of these processes would have never been incurred had the husband complied with his discovery and disclosure obligations. The wife incurred significant costs in adducing evidence of which the husband knew, secreted, and was obliged to disclose.
Both the husband and the wife made settlement offers prior to and during the litigation.
The husband submitted that the effect of the judgment, in that he received 47.5 per cent of the property of the parties, was more favourable to him than any of the settlement offers made by the wife, even accounting for the $5 million that was included on the balance sheet. The wife submitted that until the eve of the trial, she was never able to make an appropriate settlement offer or to properly consider the offers made by the husband. The wife submitted that although the husband received $370,132 more than the wife’s pre-hearing offer dated 3 September 2023, had the husband accepted her offer, the parties would have been spared the expense of the hearing.
In oral submissions the husband contended that the non-disclosure of the $5 million would not have changed the outcome of the mediation or the settlement offers, as the parties “didn’t agree on everything anyway”. He submitted that the wife’s settlement offer dated 3 September 2023 did not resolve numerous other issues between the parties, such as the particulars of the division of property in specie which both parties sought to retain.
The parties could not construct a collaborative balance sheet over the course of the litigation. They were in dispute as to which of them would retain specific real property, or parts thereof, in specie until during the trial itself. No evidence was adduced as to the effect of each offer made by the husband at the time it was made from that which he understood to be the parties’ property (as disclosed). The effect of the offers, at the time they were made, was for the most part, either unknown, or to some degree, speculative.
The husband attempted to illustrate the effect of his offers by reference to the final balance sheet as found at trial identifying the then known property of the parties. That exercise was fatuous and artless. I accept the wife’s submission, having regard to the husband’s disclosure failures, that his offers attract little weight. They were grounded from a flawed understanding of the property of the parties. I accept that throughout the litigation the wife’s contended findings as to contribution were the product of weighing the gifts and inheritances she received from her family, valued in the range of $5,500,000, absent any similar direct financial contribution by the husband, expressed as a percentage as to what she understood to be the property of the parties. It is trite to observe that the recognition of this category of direct financial contribution on her behalf was consequently weighed in the contribution findings at trial with the $5 million secreted gift received by the husband from his parents in February 2022, being a post separation contribution made on his behalf.
I accept the wife’s submissions that the husband’s deceptions impacted upon her capacity to engage in the litigation on an informed basis, and that the husband providing an undertaking as to disclosure, knowing it to be false, is “fundamental[ly contrary] to the orderly process of justice”. I accept that the wife “was running the litigation on a mistaken set of facts”. Forensic decisions she made were grounded from a false premise. This occurred prior to the litigation commencing, throughout the pre-trial process, as well as to into the trial.
A consideration of all the above matters significantly reduces any weight to be given to the offers made by the husband to compromise the litigation.
The husband put the wife to significant legal expense and disadvantage. A consideration of his failure to comply with ch 6 the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), his calculated and active false statements, his false undertaking as to disclosure, and its consequential impact on the capacity of the wife to compromise the litigation on an informed basis, establish justifying circumstances to warrant an order for costs being made against him in the wife’s favour of substantive proceeding.
THE BASIS OF COSTS TO BE PAID – FIXED?
Each party incurred costs of more than $600,000 in the substantive proceedings.
The wife submitted that “optimally” the husband should bear all her costs of the litigation because he knew that the property of the parties was valued at $5 million greater than he had led the wife to understand. Pragmatically, she reduced the costs sought of the substantive proceedings to less than half of what she has paid, to be $311,657.
The wife sought that any order as to costs be fixed. The husband opposed any fixing of costs. Implicitly, it was his case that costs ought to be the subject of assessment. During submissions, each party was requested to aid the Court as to an assessment of costs of the substantive proceeding on a party and party basis by way of application of the Court scale. Neither party assisted in that regard.
The wife put into evidence her solicitors’ costs agreements and the costs agreements of some of her counsel.
Rule 12.17(a) permits the Court to adopt a course to fix costs, although it is accepted that it is entirely a matter of discretion. Some guidance as to the appropriate matters to be considered can be found in the judgment of Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [9] (“Idoport”) where his Honour considered that:
1.For present purposes it seems convenient to commence with the recitation of the principles which inform the exercise of the discretion:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith [2005] FCA 228; (2005) 215 ALR 788];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v.the gross sum “can only be fixed broadly having regard to the information before the Court,”: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that….is what the rule contemplates.”]
vi.nevertheless, the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120;
vii. in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265….”
As recorded in Sfakianakis& Sfakianakis (2019) 59 Fam LR 419:
10It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs ... as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order.
I have considered the amounts claimed by the wife by reference to her solicitors and barristers’ costs invoices, the costs agreements and the basis for their calculation compared to what would be the broadly applied scale prescribed in the Rules for those items.
The parties have been in intensive hard-fought litigation since July 2022. I am mindful of the requirements of r 1.04:
1.04 Overarching purpose
(1) The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1: These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 67(3) of the Federal Circuit and Family Court Act).
Note 2: See sections 190 and 191 of the Federal Circuit and Family Court Act in relation to the overarching purpose of the Rules of the Federal Circuit and Family Court (Division 2). See also the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 which applies these Rules with modifications.
(2) Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Note: See subsection 68(1) of the Federal Circuit and Family Court Act.
(3) A party’s lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party’s behalf:
(a)take account of the duty imposed on the party referred to in subrule (2); and
(b) assist the party to comply with the duty.
Note: See subsection 68(2) of the Federal Circuit and Family Court Act.
I am further minded that in this case, which has been complex and protracted, and where the costs incurred to date are significant for both parties, to order costs in a specified amount avoids the expense, delay and aggravation arising out of an assessment of costs (Graham & Squibb (2019) FLC 93-892 at [92]).
The husband elected to conduct litigation by calculated deception to obtain a financial advantage. He knew, or ought to have known by way of the calibre of his legal representatives, that such elections would likely lead to an order for costs looming on the horizon. Litigants in this Court have an obligation to engage in litigation responsibly. He has not done so. The approach of the husband ought to be reflected in the quantum of the costs ordered.
The husband submitted that I am not a “costs assessor”. Without doubting the accuracy of that submission, I am satisfied considering the factors identified in Idoport that it is appropriate to fix costs as there is sufficient evidence to make an assessment and order.
Taking account of all relevant circumstances, including the total similar quantum of costs incurred by each party, a comparison of the indemnity costs incurred by the wife and the costs agreements entered with the court scale of costs, it is just that the order for costs be neither one for party and party costs nor for indemnity costs. I am satisfied that this is a case in which it is appropriate to fix the costs of the wife of the substantive proceedings in the sum of $300,000. This is less than half of the costs incurred by each of the husband and the wife in those substantive proceedings up to the conclusion of the trial.
THE COSTS OF THE COSTS APPLICATION
The wife’s incurred costs of the Costs Application are $54,637 and the husband’s $52,640.
It was agreed that the costs of the Costs Application, if ordered on a party and party basis, should be fixed in the sum of $30,000.
The husband was unsuccessful in resisting the making of a costs order. He knew or ought to have known that the wife enjoyed a reasonable prospect of achieving a costs order as to the substantive proceedings in her favour, at least of and incidental to his conduct as recorded in the primary reason for judgment and highlighted in the wife’s written costs submissions. There was no evidence of the husband making any offer, let alone a reasonable offer, to compromise the costs dispute. As already recorded in these reasons, he has the financial capacity to pay a costs order. These circumstances justify the husband paying the wife’s costs of the cost application.
It is appropriate to fix the costs of the wife of the Costs Application at $40,000 having regard to:
·The value of the costs order achieved by the wife, being just short of her amended quantum sought;
·The not dissimilar value of costs incurred by each of the husband and the wife in the costs dispute; and
·The findings in the earlier paragraphs as to the relationships between indemnity and party and party scale costs in this matter.
The husband shall be ordered to pay the wife’s costs of the Costs Application in the sum of $40,000.
TIME TO PAY THE COSTS ORDERED
The wife did not specify a period for costs, if ordered, to be paid. No submissions were made by the husband as to time to pay costs if ordered. His financial circumstances do not import any suggestion of hardship if the costs as ordered are paid within 28 days. The costs shall be paid within that period.
For all of the above reasons I make the orders as set out herein.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 14 February 2024
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