Beckstead & Beckstead (No 2)
[2021] FCCA 1443
•28 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Beckstead & Beckstead (No 2) [2021] FCCA 1443
File number(s): MLC 7993 of 2019 Judgment of: JUDGE HARLAND Date of judgment: 28 June 2021 Catchwords: FAMILY LAW – wife and proposed third party seek indemnity costs after unsuccessful joinder application – whether or not costs should be ordered – quantum Legislation: Competition and Consumer Act 2010 (Cth)
Family Law Act 1975 (Cth) ss 117(1), 117(2A), 90G(1), 90G(IA),
Family Law Rules 2004 (Cth) Schedule 3
Federal Circuit Court Rules 2001 (Cth) Schedule 1
Federal Circuit Court Act 1999 (Cth) s 79
Trade Practices Act 1974 (Cth) s 52
Cases cited: Kohan and Kohan (1993) FLC 92-340
Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920
Orwin v Rickards v Ors [2019] VSC 375
Prantage and Prantage [2013] FamCAFC 105
Beckstead & Beckstead [2021] FCCA 566
Number of paragraphs: 49 Date of last submission/s: by way of written submission on 6 May 2021 Date of hearing: 25 March 2021 Place: Melbourne Counsel for the Applicant: Ms Costello QC Solicitor for the Applicant: Cargill Family Law Counsel for the Respondent: Ms Vohra SC Solicitor for the Respondent: MST Lawyers Counsel for the Proposed Second Respondent: Ms Smallwood QC Solicitor for the Proposed Second Respondent: Colin Biggers & Paisley ORDERS
MLC 7993 of 2019 BETWEEN: MR BECKSTEAD
Applicant
AND: MS BECKSTEAD
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
28 JUNE 2021
THE COURT ORDERS THAT:
1.The husband pay to Ms B the costs of responding to the husband’s Application in a Case filed on 12 August 2020 on an indemnity basis, with such sum to be agreed between the parties or failing agreement, to be taxed by the costs registrar of the Federal Circuit Court of Australia.
2.The husband pay the wife’s costs of responding to the husband’s Application in a Case filed on 12 August 2020, with such sum to be agreed or failing agreement to be taxed by the costs registrar of the Federal Circuit Court of Australia applying the scale of costs set out in the Family Law Rules 2004 (Cth).
3.In the event the parties and Ms B are unable to agree on the quantum of costs within 14 days, the party seeking the costs file and serve an itemised costs account by 23 July 2021 and that by 13 August 2021, the party objecting to the quantum of the costs file and serve a notice setting out the objections to the itemised costs account and that the matter be listed to the costs registrar on 18 August 2021.
4.I certify that it was reasonable for the parties and Ms B to engage Senior Counsel for the application in a case.
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 under the pseudonym Beckstead & Beckstead (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The wife and Ms B seek orders that the husband pay their respective costs on an indemnity basis arising from his unsuccessful application in a case seeking to join Ms B as a party to the proceedings. The husband opposes both applications.
The husband commenced proceedings on 17 July 2019 with respect to enforcement of a section 90C Binding Financial Agreement entered into by the parties on 24 June 2006. The matter was initially listed for final hearing on 10 September 2020. The husband filed an Application in a Case on 12 August 2020 seeking to join Ms B to the proceedings. Ms B prepared the financial agreement and advised the wife with respect to it. The husband further sought leave to file an Amended Initiating Application seeking orders against Ms B pursuant to the Competition and Consumer Act 2010 (Cth).
On 25 March 2021, I delivered my reasons with respect to the husband’s joinder application. The parties’ circumstances are set out in my primary judgment Beckstead & Beckstead [2021] FCCA 566. Those reasons should be read with these for background.
The parties and Ms B filed written submissions in accordance with my orders of 25 March 2021.
Ms B seeks an order that the applicant pay her costs of and incidental to the Application on an indemnity basis. Such costs amounted to $51,864.60 based on written submissions filed 16 April 2021. The solicitors for Ms B filed an Affidavit on 19 April 2021 setting out the costs being fixed at $53,597.60. Annexed to and marked Annexure 1 of the Affidavit filed on 19 April 2021 was the invoice rendered on 16 April 2021 by the firm. This invoice is for settling the written submissions filed on 16 April 2021 and was in the sum of $1,155.
The wife seeks an order from the Court that the husband pay her costs from the time of filing the Application in a Case on 12 August 2020 until judgment delivery on 25 March 2021, including the costs associated with preparation of the costs submissions. Such costs amount to $52,879. Annexure 3 of the respondent’s submissions is a copy of an itemised account setting out her solicitor’s fees, Counsel’s fees and disbursements during the period of 10 August 2020 until 9 April 2021.
It is highly unusual in interlocutory proceedings to brief Senior Counsel, noting that the parties and Ms B did so, particularly in the Federal Circuit Court (“FCC”) with it being a lower level trial court. I note too that all three Senior Counsel also prepared costs submissions. The husband is critical of what he refers to as excessive costs claimed by Ms B and the wife which are for similar amounts. The husband is silent as to the quantum of costs incurred by him with respect to his joinder application.
During the course of the hearing on 16 December 2020, when the parties foreshadowed seeking costs, I indicated that this was the type of matter where the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) scale of costs in Schedule 1 does not adequately reflect the complexity of the issues and the work involved. The fact that all three briefed Senior Counsel is an indication of that complexity. Given this, it is appropriate to make an order certifying for Senior Counsels’ appearance on 16 December 2020.
In his written submissions, the husband opposes a costs order being awarded to the wife and said if costs are awarded to the wife, it should only be on the basis of the FCCR scale of costs. The husband resists paying indemnity costs to Ms B and proposes that an appropriate amount would be two or three times the FCCR scale of costs. I will address the costs application of Ms B and the wife separately.
LEGAL PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) (“FLA”) provides that each party in family law proceedings shall bear their own costs. However, in order for the Court to make a costs order in favour of the parties there must be justifying circumstances as set out in section 117(2A):
(a)The financial circumstances of each of the parties to the proceedings;
(b)Whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so, the terms of the grant of that assistance to that party;
(c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
(g)Such other matters as the court considers relevant.
To make a costs order at all is a departure from the ordinary rule. Schedule 1 of the FCCR sets out a scale of costs to be applied in family law proceedings and in general federal law proceedings. Higher amounts are allowed in general federal law proceedings pursuant to the FCCR scale of costs. It is an events based costs scale. Part 21 of the FCCR deals with costs and disbursements. If the Court decides that it is appropriate to order costs then in usual cases the scale of costs should apply. It is designed to avoid parties having to go through the expense and delay of having bills of costs taxed. In some cases, the FCCR scale of costs does not reflect the complexity of the matter.
It is well-established that indemnity costs should only be ordered in exceptional circumstances. The Full Court of the Family Court discussed this in Kohan and Kohan (1993) FLC 92-340 and said the following at 76,614 (citations omitted):
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.
Indemnity costs orders are still an exception in this and other jurisdictions.
I observe that the Full Court was referring to the Family Court of Australia scale of costs (“FCoA scale of costs”) set out in Schedule 3 of the Family Law Rules 2004 (Cth) (“FLR”) which is not event-based. The FCoA scale of costs generally allows for higher costs as it permits charges that allow for the length of documents and the time reasonably spent by a lawyer in preparing for a matter. As the FCCR is events based, it allows for fixed sums for preparation and a fixed amount depending on the type of appearance.
In the more recent decision of Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920 the court stated at paragraph 7:
The Full Court noted in [Prantage] at [42], that even in jurisdictions where the usual rule is that costs follow the event, it is well settled that indemnity costs “should only occur in an extremely rare situation” (see Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] 179 ALR 406). We agree with Murphy J in Prantage at [152] that in proceedings under the Act, where the usual rule is that each party shall bear his or her own costs, an order for indemnity costs is even more exceptional.
The Full Court noted in Prantage and Prantage [2013] FamCAFC 105 that the Court needs to know what the departure is from the court scale of costs when considering making an order for indemnity costs. This requires the Court to be provided with any relevant agreements and bills of costs.
Senior Counsel for Ms B submits that the proposed claim against Ms B was made with respect to the Court’s general federal law jurisdiction, namely the claims made under the Trade Practices Act 1974 (Cth) (“TPA”) and the Competition and Consumer Act 2010 (Cth). She therefore submits that section 79 of the Federal Circuit Court Act 1999 (Cth) (“FCCA”) applies to Ms B’s claim, not section 117 of the FLA. Section 79 of the FCCA states:
(1)This section does not apply to family law or child support proceedings or proceedings in relation to a matter arising under the Fair Work Act 2009 or section 14, 15 or 16 of the Public Interest Disclosure Act 2013.
(2)The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.
With respect to what occurred at the mention on 10 September 2020, the husband’s Senior Counsel says that his current lawyers were not engaged at that time and therefore did not have the benefit of knowing the issue of concern with respect to the TPA. The orders did not refer to the TPA only applying to corporations. The husband was represented by counsel on 10 September 2020, who no doubt would have reported to his instructing solicitors about the outcome and discussions that took place on that day, specifically with reference to the submission of the husband’s previous solicitors and his current solicitors not being aware of the issues regarding the TPA claim.
The husband chose to engage new solicitors and counsel as he is entitled to do, however if there was any doubt as to what occurred on that occasion and what was required, it was incumbent upon the husband and his lawyers making the appropriate enquiries necessary to order the transcript.
Senior Counsel for Ms B further submits that if the Court determined that section 117 of the FLA applies, the Court should be satisfied that there are justifying circumstances in this case for awarding costs in favour of Ms B and further that the FCCR scale of costs does not properly reflect the work required and complexity of the arguments. Indeed, as I noted above, I made this observation at the interlocutory hearing before me.
The husband’s Senior Counsel argues that the joinder application was made in the context of family law proceedings and as such, the FLA should apply rather than section 79 of the FCCA. The husband is of course seeking to invoke the Court’s general federal law jurisdiction with respect to his joinder application. A person seeking costs pursuant to section 117 of the FLA must first satisfy the Court that it should depart from the usual order that each party pay their own costs. A person applying for costs under section 79 of the FCCA does not need to establish this.
Section 117 of the FLA contains more stringent requirements to be met before the court considers ordering costs. As I am satisfied that there are justifying circumstances in this case to depart from the usual rule in family law matters that the parties pay their own costs, and the parties have addressed the factors in section 117(2A) of the FLA in their submissions, it is not necessary for me to consider this matter further.
MS B’S SUBMISSIONS
In support of her submissions seeking indemnity costs, Senior Counsel for Ms B refers to the timing of the husband’s joinder application. Pages 1 to 3 of her written submissions helpfully set out the chronology of events and the changing nature of the arguments the husband raised. The husband filed the application for joinder on 12 August 2020, 11 months after he filed his initiating application and some 5 weeks before the trial on the threshold issue was due to commence. As a result, the trial was postponed.
On 4 September 2020 Ms B’s lawyers wrote to the husband’s lawyers putting them on notice as to various problems and stated the following:
Firstly, the Court will not be in a position to determine the joinder application until the parties to the Family Law Proceeding properly particularise their positions. The Husband and Wife have not yet filed any Contentions so there is insufficient material before the Court to enable it to consider whether there is a proper basis for the joinder application. Further, we are not presently aware with any particularity of the nature of the allegations that might be made against our client.
Secondly, the Husband has no claim to advance against our client unless and until the threshold issue is determined and determined adversely to your client and on a basis which could provide him with a claim against our client. We refer you to the decision of Noll v Noll (2013) 274 FLR 422 as authority in support of the position that the joinder of our client in those circumstances is inappropriate.
Thirdly, we note that the decision of Orwin v Rickards v Ors [2019] VSC 375 may provide our client with a complete limitations defence to any case advanced by your client against her. That decision was upheld by the Court of Appeal today. There is no utility in joining our client in those circumstances.
Ms B’s solicitors further pointed out in the letter that if the husband was successful in the threshold issue then he would not have a claim against Ms B. If he is not successful in the threshold argument then the husband is no worse off.
Ms B’s solicitors further noted that based on the material they had seen to date, it appeared the husband could raise a number of arguments in the family law proceedings. This included relying on section 90G(IA) of the FLA such that despite non-compliance with section 90G(1) of the FLA, it would be unjust and inequitable to find the agreement not binding. In the event the agreement was not upheld it would be open to the husband to argue pursuant to section 79 of the FCCA that it would not be just and equitable to make orders providing for different outcome to that set out in the financial agreement.
Finally, they referred to the husband’s obligation to mitigate his loss and warned him that if he proceeded she would seek costs. The husband’s Senior Counsel submits that this letter is not an offer of settlement that could be taken into account under section 117(2A)(f) as Ms B did not propose that she be joined as a party after the threshold issue is determined. Whilst I accept that the letter was not an offer of compromise, the significance of the letter is that it put the husband on notice very early on as to the difficulties with respect to both the timing and substance of his application as it stood. It is, however, a matter that can be taken into account under section 117(2A)(g) and is highly relevant in the circumstances of this case and support there being justifying circumstances to order costs in Ms B’s favour. The husband chose to press his application and further compounded the issue by changing the nature of his submissions.
Ms B’s solicitors also draw attention to the comments I made in my primary reasons including:
·the application was brought prematurely;
·the husband had not properly articulated his claim;
·the material filed by the husband had the appearance of seeking to address problems highlighted by Ms B that presumably the husband had not turned his mind to previously;
·that I was not satisfied that the husband had established an arguable case against Ms B, or that Ms B was a necessary party to the proceeding.
The failure by the husband to properly articulate his claim against Ms B increased everyone’s costs including his own. This was further compounded by the lateness of contentions of argument and submissions being filed, including shortly before the interim hearing. It is a basic principle that the parties are entitled to know the case they have to meet. This is all the more so for someone in the position of Ms B who is a stranger to the proceedings and had no choice but to file material and attend Court opposing the application.
Senior Counsel for Ms B states that she refers to these problems and opposing the application when the matter was listed for mention on 4 September 2020. As is apparent from my reasons of 25 March 2021, I was satisfied that:
·the husband’s application was premature;
·the husband failed to properly articulate his claim against Ms B; and
·the husband made late substantive changes to the nature of his claim, which denied Ms B the opportunity to respond.
With respect to Ms B she had no option but to respond to the husband’s application to join her as a party. She quite properly made it clear that she would cooperate with a subpoena to give evidence at the trial, however that is a different position to becoming a party to the proceedings and therefore needing to participate in and be present at the entire trial. I am satisfied that she took appropriate steps to mitigate her costs by putting the husband’s lawyers clearly on notice shortly after he filed the application as to the flaws in his argument and proposing that the husband’s joinder application be deferred until after the threshold hearing determining the validity of the agreement. There was considerable merit in such an approach. It is important to note that the letter from Ms B’s lawyers dated 4 September 2020, annexed to her submissions, refers to matters which were significant in the argument before me.
The husband does not squarely address the criticisms with respect to the late filing of his submissions and the even later change he made to the legal basis for his argument. The husband seeks to deflect from this, referring to Ms B filing further submissions the morning of the interlocutory hearing. Further, he refers to neither Senior Counsel for Ms B nor the wife seeking an adjournment due to the lateness of the husband’s material. As Senior Counsel for Ms B points out in her submissions, the husband did not raise allegations that Ms B made misrepresentations to him by telephone until a few days before the interim hearing, which was a substantial change to the nature of the claim he was advancing. Indeed, as I noted in the primary reasons it seemed that the husband was really attempting to address flaws that had been pointed out to him by Ms B’s lawyers with respect to his claim under the TPA.
I am satisfied that the husband should pay Ms B’s costs of his Application in a Case. The issue I must now determine is the quantum of those costs. There is no doubt that the costs incurred by the parties and Ms B in this matter to date are significant. The fact that the costs are high is not necessarily in and of itself a reflection of costs being excessive. I note again all parties thought this was the type of matter which justified engaging Senior Counsel to argue the interlocutory issues. The nature of the arguments that were raised were not one that is commonly made and involved complex legal arguments. The fact that the oral arguments were completed in half a day does not weaken that argument.
In support of the application, Ms B’s solicitor filed an affidavit which annexes the accounts received from Senior Counsel and refers to the hourly rates for the two solicitors who worked on the file, stating that the solicitor costs incurred at $30,747.60 excluding GST with respect to 20.3 hours worked and partner and 60.5 hours of work for a senior associate. The husband submits those hours are excessive. As the solicitor’s bill of costs is not annexed to the affidavit it is impossible to know whether those costs have been reasonably incurred. In those circumstances unless the parties can agree on the quantum, it will be necessary to refer the matter to a costs registrar.
I am satisfied that there are exceptional circumstances, particularly given the matters referred to in paragraphs 22 to 30, and that the husband should pay Ms B’s costs on an indemnity basis. Ms B is a stranger to the proceedings. She put the husband on notice at an early opportunity as to the difficulties with his application. If the husband had heeded that warning, considerable costs and Court time would have been saved. The fact that I made an order granting the husband to file a further joinder application after the threshold issue is determined does not detract from this, as I also ordered him to file a draft statement of claim in order to avoid a repeat of what occurred here.
Senior Counsel submits that based on those factors outlined in her submissions, summarised above, that in order for indemnity costs to be warranted, it would not be just to require Ms B to incur the expense of taxation of costs. I accept her submissions that there are exceptional circumstances which justify the husband paying Ms B’s costs of responding to his joinder application on an indemnity basis. Unfortunately, I am not in a position to fix the amount in the absence of the solicitor’s bill of costs. I will order that if the husband and Ms B do not agree to the quantum within 14 days, the matter be adjourned to the costs registrar to 18 August 2021.
THE HUSBAND AND WIFE’S SUBMISSIONS
The wife also seeks indemnity costs. Senior Counsel for the wife submits the application was premature and bound to fail and highlights the consistency with the Full Court authority in Prantage & Prantage [2013] FamCAFC 105. Further, they say that the attempt to invoke the TPA was also bound to fail.
I reject the husband’s submissions that the wife did not need to incur any costs with respect to his joinder application and therefore should pay her own costs. Whilst as the wife’s lawyers made clear before me that the dispute was really between the husband and Ms B, she was nevertheless affected by the decision, as the addition of a party to the proceedings would increase the length of the trial and therefore all parties’ costs. The husband’s Senior Counsel does not refer to making any offer to the wife that she need not respond to his application and that he would be agreeable to her being excused from appearing. Further, submitting in all the circumstances, it was perfectly reasonable and appropriate for her to file material in response and oppose the application.
The wife complied with the consent orders made on 10 September 2020, which provided for her to file her contentions of fact and law. The criticism Senior Counsel for the husband had of the wife’s contentions of facts and law addressing the substantive issue rather than the joinder application, is unreasonable in circumstances where that could have been the only logical reason for her to provide the contentions of fact and law first. Clearly that was in order for the husband to better understand the basis upon which the wife would seek the agreement be set aside.
The wife refers to the husband being in a stronger financial position than herself and refers to the financial statements the parties filed in 2019. She notes that she has an outstanding application for maintenance. The husband’s income is almost double the wife’s and he has also re-partnered.
Senior Counsel for the wife also refers to various findings in my primary reasons with respect to the application being:
·premature,
·insufficiently articulated,
·unduly prolonging the proceedings, as were the changes to the nature of the claim and the last minute allegation of misleading representations made by Ms B to the husband, thus providing insufficient notice to the wife.
She submits that the husband raised irreconcilable and inconsistent arguments in an attempt to cover his bases. She further submits that since the husband only brought the application a month before the threshold hearing was due to be heard, his actions have resulted in a lengthy delay in the threshold hearing, therefore prejudicing the wife.
I am satisfied that there are justifying circumstances for ordering the husband to pay the wife’s costs. Again the issue is the quantum. I am satisfied that it would not be adequate compensation to simply apply the FCCR scale of costs, given the facts of this case and the complex legal issues. As I have mentioned earlier, all three parties thought this was a matter which justified engaging Senior Counsel and in my view it certainly was appropriate given the nature of the arguments made. I will certify for Senior Counsel.
With respect to the wife’s application, the husband says that he sought no relief from her in the joinder application and that it was unnecessary for her to incur any costs at all with respect to that. I reject that submission. It is entirely proper for a party to proceedings to reply to a joinder application as it has implications for the length of trial for costs of proceedings. The submissions with respect to costs appearing inflated and that some costs incurred are likely to be related to the costs of the primary proceedings has some merit.
The husband’s submissions ignore the fact that I raised with Senior Counsel at the hearing that the FCCR scale of costs does not adequately reflect the complexity of the issues raised in this matter.
Senior Counsel for the husband argues that his claim for joinder was well-founded and has been delayed rather than dismissed. The application was unsuccessful and in order to re-agitate the joinder application after the threshold issue is determined, the husband will need to make a fresh application addressing the deficiencies which are discussed in the primary reasons, including filing a draft statement of claim. With respect to the husband’s Senior Counsel, this submission does not engage with my reasons for judgment. Furthermore, order 5 of the orders I made on 16 December 2020, simply enable the husband to bring a further joinder application after the threshold issue is determined and requires him to annex a draft statement of claim with respect to the basis for his application to ensure it is properly articulated.
The wife’s lawyers have annexed the costs agreements and accounts for costs claimed from 10 August 2020. With respect to the accounts from Counsel, they include Senior Counsel’s accounts but also accounts from Junior Counsel, namely from Mr Holmes. His invoice issued on 11 September 2020, includes work undertaken since 30 June 2020, which predates the husband’s application for joinder. Looking at the account from the solicitors, there is a charge for booking Mr Holmes for the trial. Whilst that is a minor cost, it is not a cost properly related to the joinder application. I am not satisfied that the husband should pay the wife’s costs on an indemnity basis. Unlike Ms B, she is a party to the proceedings. Some of her costs may relate to the substantive proceedings. She also failed to particularise her orders. However, I reject the husband’s submissions with respect to the FCCR scale of costs. I am satisfied that it is appropriate to apply the FCoA scale of costs to better reflect the complexity of the matter. I am not satisfied that ordering the husband to pay solicitor-client costs is appropriate.
Senior Counsel refers back to what was set out in the husband’s affidavit of 12 August 2020 that ignores the very real difficulties identified in my reasons for decision. This includes that the husband had properly turned his mind to the basis for his claim against Ms B. I reject the husband’s submissions at paragraph 52. The other parties were not given notice of him raising contention that Ms B made misleading representations via telephone to him until shortly before the interlocutory hearing and he did so without providing any particulars at all. There is no explanation provided as to why that was not specifically addressed in his affidavit and one would have expected it to have been included.
I do not know what costs the husband has incurred with respect to the joinder application. I note he considered it appropriate to engage Senior Counsel. Whilst I am satisfied the circumstances justify the husband paying the wife’s costs, I am not satisfied that the circumstances with respect to the wife are exceptional. She is a party to the primary proceedings. She raises the issue of the advice she received with respect to the binding financial agreement. As I pointed out in my reasons of 16 December 2020, she has also failed to properly particularise her case.
I will order that the husband pay the wife’s costs of the joinder application on a party/party basis on the FCoA scale of costs. Again, I am not in a position to set out that amount as I do not know what the costs will be when calculated on that scale. That will require the wife to prepare a bill of costs using the scale but that is preferable to setting an amount in accordance with the FCCR scale of costs or even triple that scale which the husband specifies would be approximately $15,000, as I expect it will be higher. In the event the husband and wife are unable to agree on the quantum of costs within 14 days, the party seeking the costs file and serve an itemised costs account by 23 July 2021 and that by 13 August 2021, the party objecting to the quantum of costs file and serve a notice setting out the objections to the itemised costs account and that the matter be listed to the costs registrar to 18 August 2021.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 28 June 2021
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