Bouras and Bouras (No. 5)

[2007] FamCA 1413

FAMILY COURT OF AUSTRALIA

BOURAS & BOURAS (NO. 5) [2007] FamCA 1413

FAMILY LAW – COSTS – Indemnity Costs

Family Law Act 1975(Cth)

APPLICANT: Ms E Bouras

RESPONDENT: Mrs C Bouras

FILE NUMBER: MLF 68447 of 1980

DATE DELIVERED: 7 December 2007 (from Chambers)

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne (In Chambers)

JUDGMENT OF: Carter J

HEARING DATE: Written submissions concluding 22 August 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mason Sier Turnbull

SOLICITOR FOR THE RESPONDENT: Berger Kordos

Orders

1. That the respondent Mrs C Bouras contribute the sum of $3,800 towards the costs of the applicant, Ms E Bouras.

2. That execution of this order be stayed for a period of 45 days from this day.

IT IS NOTED that publication of this judgment under the pseudonym Bouras & Bouras is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 68447 of 1980

MS E BOURAS

Applicant

and

MRS C BOURAS

Respondent

Reserved Judgment

(Costs)

[Delivered in Chambers]

1. Ms E Bouras (“the applicant”) seeks an order for costs in the sum of $5,594 against Mrs C Bouras (“the mother”).  The mother resists the application.

Background

1. On 29 June 2007 I made orders by consent relating to living arrangements for the child M born in May 1993 (“[M]”).  Those proceedings were brought by the applicant in the present proceedings against the mother and M’s father, Mr Bouras (“the father”). M had the benefit of representation by the Independent Children’s Lawyer (“I C L”).

2. The applicant had sought that M live with her and that was one of the orders I made by consent. The proceedings in question were a final hearing of competing applications during which all parties, except the father, were legally represented.

3. The case had commenced on Monday, 25 June 2007 and by 27 June the evidence of the applicant and her witnesses had concluded and the mother’s case had commenced. Cross-examination had not been completed.  Negotiations as to settlement commenced on Thursday, 28 June and those discussions eventually involved, by consent and with the Court’s approval, consultation with Ms B, a psychologist who had prepared a Family Report.

4. I was subsequently told that the parents and the Independent Children’s Lawyer had agreed that M’s place of residence was to change to the residence of the applicant.  The issue at that stage was when the change should be implemented.  It was my view, and for Reasons which I gave at the time, that the change of residence should take place immediately and I made orders to that effect on 28 June 2007. There was a further order that Ms B and the I C L be authorised and requested to explain to M that her parents and sister had reached an agreement that her place of residence was to change to that of her sister and they were to do all acts and things possible to assist M in understanding the implications of that order.  I am satisfied this was done.

5. The matter returned to Court the following day, 29 June 2007 and there were further negotiations relating to precise arrangements for M to spend time with her mother.  I was called upon to determine some of those and made rulings.  Eventually, I was asked to make orders by the consent of all the parties which I did, after having given a brief judgment.  That Judgment remains on the Court file.

6. The orders set out with particularity the periods of time which M was to spend with her mother and that included the second week of the school holidays from 10:00am on Friday, 6 July 2007 until 5:00pm on Friday, 13 July 2007.  M did spend time with the mother in accordance with those orders and thereafter returned to the applicant’s home.

7. Orders were also made requiring the mother to facilitate M telephoning the applicant at 10:00am on 9 July and 11 July 2007.  The applicant alleges that the mother failed to facilitate this telephone communication.

8. On Monday, 16 July 2007 M was discovered not to be in her bedroom when the applicant awoke at about 6:30am.  It subsequently emerged that M was with the mother and had been there since about 10:00pm on the Sunday night, 15 July 2007.

9. There was correspondence between the solicitors for the applicant and the mother and arrangements were made for M to be returned at a neutral venue that evening, 16 July 2007. This did not eventuate and, as had been foreshadowed in a letter from the applicant’s solicitor to the mother’s solicitor, an application for a recovery order was filed in the Court.

10. In subsequent proceedings the mother described in an affidavit filed 26 July 2007 what had happened at that neutral venue, namely McDonald’s Restaurant at N.  The mother said she took “witnesses” so that they could verify what was happening because she “was very sick of being blamed for [M]’s conduct”.

11. One of those witnesses was a Mrs P whose affidavit was filed on 10 August 2007. It is clear from the mother’s affidavit as well as that of Mrs P that the mother did not say one single word to fulfil the purpose for which M had been brought there.  It is the case however that the mother did attempt to comfort M because she was upset at the very end of the discussion.

12. It was the mother’s case that she was powerless in all the circumstances and was unable to persuade M to return to the home of the applicant. She said however that she had attempted to persuade M to return, both when she had run away and thereafter. As I have said there is no evidence to show that the mother said or did anything to indicate to M that she should return to the home of the applicant at the meeting at McDonalds.

13. The application for the recovery order came on before me on 25 July 2007.  Mr Fookes of counsel appeared on behalf of the mother on this occasion.  He had not appeared for her at the trial and therefore had some difficulties.  The father again appeared in person.  Mr Williams of counsel appeared on behalf of the applicant.  He had also appeared on her behalf at the trial.  The I C L had been discharged but Ms Pandelli, who had acted in that role, appeared as amicus curiae.

14. At the outset Mr Fookes sought that I disqualify myself.  I heard submissions from all parties and determined that I would not accede to that request.  I did not give my Reasons at the time but proceeded to hear the matters which had been raised.  I subsequently delivered Reasons on 26 July 2007 which remain on the Court file.

15. At the hearing on 25 July 2007 I heard further submissions relating to the recovery order and in the event determined that I had no alternative but to grant it.  This was on the basis that the mother had continued to assert through her counsel that she had been unable to persuade M to return. Mr Fookes ultimately took the position that, in the event that I ruled against the mother’s application, arrangements should be made for M to be returned, without the necessity for police involvement. That is a course of action which I would ordinarily welcome, given that it is far less likely to cause distress to a child.  However, given what had happened at the McDonald’s Restaurant, I could have absolutely no confidence that the mother would have been able to persuade M to return.

16. One of the bases upon which the mother resists the application for costs is her financial position, as will be seen.  It is appropriate therefore to briefly touch on certain of the subsequent court proceedings.  On 14 September 2007 I made orders which largely severed the proceedings between the father and the mother seeking alteration of interests in property and/or financial relief from the proceedings between the applicant, the mother and the father in respect of parenting orders in relation to M.

17. The “financial proceedings” and certain other matters were adjourned to the Judicial Duty List to be heard on 1 November 2007.

18. The proceedings came before Bennett J on that day and the mother and the father consented to orders which required six items of real estate to be sold with the nett proceeds of sale to be collected by a Mr Tullberg, a solicitor, and to be held by him in an interest-bearing term deposit for a term of up to 14 days, renewable automatically, on trust for the mother and the father.  That was to continue pending further order of the Court, however, both the father and the mother were granted liberty to make application to the Court for release of such funds to retire debt or otherwise.

19. A further order had the effect of requiring the mother and the father to be equally responsible for reasonable costs of supervision by a Ms G of the time M was to spend with the mother.  As at the date of the order there were outstanding costs of $550 and it was anticipated that the future costs would be $330 for each two weekly session.  The father’s liability to contribute was to expire after 12 further sessions.

20. Arrangements were also ordered which were to authorise Mr Tullberg to release the balance of the proceeds of sale of another property, namely, the N property, together with any interest which may have accrued, which was to be applied by payment to Ms G of the sum of $1210, representing the outstanding liability for supervision, together with the anticipated costs of two further periods of supervision.  Further, an amount of $3,300 was to be released to the I C L who was to hold those moneys on trust equally on behalf of the father and the mother.  The moneys were to be applied for the reasonable costs of any supervised periods of time M spent with the mother, and when supervision was no longer required, the I C L was to divide the balance of the funds then remaining equally between the father and the mother.

21. The matter returned to me on 3 December 2007 in respect of children’s issues and, amongst other orders, I made an order which dispensed with the requirement for supervision of the time spent by M with the mother.  By that stage Ms G had supervised a further two periods, namely on 10 November 2007 and 24 November 2007.  It can be inferred therefore that the I C L holds about $2,740, of which the mother’s share would be $1,370.

22. Finally I note that written submissions have been filed on behalf of the applicant.  Those submissions were prepared by her solicitor.  Submissions in reply have been filed on behalf of the mother, which were prepared by her solicitor.

23. Those submissions have been considered in Chambers.

Relevant Legal Principles

1. Section 117 of the Family Law Act 1975 (“the Act”) is the relevant statutory provision. It is the general rule under s 117(1) that each party shall bear his or her own costs. However, pursuant to sub-s (2) the Court may make such order as to costs as it considers just if it is of the opinion that there are circumstances to justify doing so. In considering what order (if any) should be made the Court is required (inter alia) to have regard to the matters referred to in s 117(2A). They are:

   “117(2A)  [Matters relevant to costs order]

   In considering what order (if any) should be made under sub-section (2), the court shall have regard to -

   (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; and

   (g) such other matters as the court considers relevant.”

2. In Penfold (1980) FLC 90-800 the Full Court of the High Court of Australia held that the general rule expressed by s 117(1) is not paramount to s 117(2) and must yield whenever a Judge finds in a particular case that there are circumstances justifying the making of an order for costs. Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Apart from that, however, there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. The members of the High Court did not agree with the suggestion made by the Full Court of this Court in the Judgment under appeal that an order could only be made under s 117(2) in “a clear case”.

3. In I & I (No. 2) (1995) FLC 92-625 the Full Court held that there was no rule to the effect that “special circumstances” must be shown to justify a costs order in children’s matters.

4. In Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania)) & Fish (2005) 33 FamLR 123 the Full Court gave a timely reminder that, nowhere in s 117(2A) or elsewhere in s 117 is there any prescription that more than one factor must be present before an order for costs is made, nor any indication as to the comparative weight of the factors set out in sub-s (2A). It is therefore the case, as a consequence, that there is nothing to prevent any factor being the sole foundation for an order for costs.

Section 117(2A) Matters

Financial Circumstances

1. The applicant is in professional employment. Her annual salary is about $80,000.  She is married and her husband is also in full-time employment although I am unaware of his salary.  The applicant (and presumably her husband) financially support M. That support includes the costs of her attendance at L College.

2. The mother is employed on a part-time basis as a carer.  She earns about $150 per week gross and also receives about $50 per week from a low income Centrelink pension.  The mother filed a Financial Statement on 12 September 2007 and in that statement she noted that she did not know what income tax she incurred or paid.  She is not contributing towards M’s support although she did note expenditure of a total of $40 per week which was said to be referable to M.  Her expenditure exceeds her income.  There are pending proceedings involving a property settlement and as I understand it those proceedings are awaiting a Trial Notice.

3. The mother has an entitlement pursuant to the orders made by Bennett J on 1 November 2007 to an approximate sum of $1,370, as earlier recorded.  She is also entitled pursuant to the orders to apply for the release of further funds following the sale of items of real estate, the details of which are set out above.

4. The mother has borrowed from friends in order to make mortgage repayments for the property in which she lives, the amount in question being about $5,000.  The home in which she lives is the former matrimonial home and is, I am told, the only property of which she is a registered owner.  There are however a significant number of other items of real estate which are the subject of the pending proceedings.

5. According to the written submissions filed on behalf of the mother she had incurred legal fees and disbursement to her solicitors in the sum of approximately $67,000. She has not made any payment in respect of these expenses and the submissions record that the solicitors are not seeking payment of their costs and expenses pending the outcome of the final property settlement.

6. I have not been made aware of the applicant’s capital situation.  She had legal representation during the proceedings before me, although those solicitors filed a Notice of Ceasing to Act on 17 August 2007.  I am unaware what legal costs she incurred or whether or not she has been able to pay them. Since her solicitors withdrew she has been appearing on her own behalf.

Legal Aid

1. Neither the applicant nor the mother is in receipt of Legal Aid assistance.

Conduct

1. Section 117(2A)(c) relates to conduct of the parties in relation to the proceedings.  The matters which are included comprise the parties’ conduct in relation to pleadings, particulars, discovery, inspection, etc.  If the proceedings have been unduly prolonged or made unduly expensive, or if a party has failed to make proper disclosure, the Court would normally regard such matters as conduct within this sub-section.

2. The matters referred to in the written submissions filed on behalf of both parties do not relate to conduct in relation to the proceedings. It is possible, however, to take into account conduct which is thought to be relevant but which is not relevant within this sub-section under s 117(2A)(g). I will do so.

Failure of a Party to the Proceedings to Comply with Previous Orders

1. I accept the applicant’s contention that the recovery proceedings were necessary because the mother had failed to comply with the orders made by the Court on 29 June 2007.

2. The mother has submitted that she did everything in her power to return M, who is 14 years of age, to the applicant’s care on the day after M had run away.  It was said that M refused to return and expressed strong wishes, “in the presence of witnesses” that she did not want to return to her sister and wanted to stay with her mother.

3. The mother’s submissions went on to contend that M was “exhibiting signs of severe emotional and psychological distress” and that she was “unilaterally refusing to abide by the provisions of the Court orders”. This part of the submissions concludes by contending:

   “34.The primary consideration of all parties to the proceedings should be the best interests of the child.  In this case, it was clear from [M]’s wishes that it was in her best interests to stay with the (mother) to avoid further anxiety and distress of returning to the (applicant’s) care …”

4. It was not contended, and correctly so, that in the determination of these proceedings the primary consideration should be M’s best interests.  The principles which govern the exercise of discretion in costs applications are not in doubt and have already been stated.  There is no statutory foundation for the contention articulated on behalf of the mother.

5. The question to be answered in this case is not whether M was refusing to abide by the provisions of the Court orders.  To my mind, the mother cannot hide behind M’s alleged wishes.  Further, and as already recorded, it is clear from the evidence set out in the mother’s affidavit as well as that of Mrs P, that the mother did not say one word about doing anything to fulfil the purpose for which M had been brought to the McDonald’s Restaurant.

6. I have earlier referred to Ms B’s report.  This was dated 22 February 2007 and it was considered during the substantive proceedings in June 2007.  At p 22 of that report Ms B recorded:

   “The mother is a very emotionally influential and powerful parent in [M]’s life and this impacts heavily on any chance of [M] rightfully re-connecting with other family members.  In the presence of the father, sisters and the writer, [M] stated that she would ‘like to give it a bash’ in response to the proposal that she lives with (the applicant) and (her husband) and sees her mother some weekends and school holidays.  Conversely in the presence of her mother and the writer, she tearfully states, ‘I will see them once a month’. …”

7. The purpose of the meeting at McDonald’s restaurant was for M to be returned.  On all the evidence relating to that occasion there is no reference to the mother doing anything to indicate to M that she embraced the orders and that M should also do so.  She took, in her own words, witnesses so that she would not be blamed for M’s conduct.  Her attitude was similar to that of the wife in Stevenson & Hughes (1993) FLC 92-363, except I do not believe the wife in that case had arranged for “witnesses”. So that the parties understand this reference, I will explain some of the circumstances of that case. It involved an appeal by the wife against an order for compensatory access (as it was then called). The wife’s attitude was that she had done all that she could to persuade her daughter who was about five years of age to communicate with her father by telephone and to spend time with him during a weekend pursuant to Court orders. The trial judge had referred in her Reasons for Judgment to the implied obligation of the residential parent to ensure that the arrangements which were stipulated in the order did in fact take place. She had said:

   “… Words and actions have meaning in context and affect.  It is not a sufficient discharge of custodian’s obligations, expressed or implied, to point to words and actions and to say, in effect:  ‘You see I tried.  But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were an end of the matter. …”

1. The Full Court agreed.

2. The present proceedings are of course not proceedings alleging contravention.  M is also of course, much older than was the child in the case I have just cited.  Nonetheless, as I have already indicated the mother’s approach in the present case was very similar to that of the wife in the other case.  I do not accept the submissions made on behalf of the mother.

Whether a Party has been Wholly Unsuccessful in the Proceedings

1. The applicant relies on this sub-paragraph.  I agree that the mother was wholly unsuccessful in the recovery proceeding, given that an order was made for a recovery order.  The mother had resisted that order.  She was also unsuccessful in her application that I should disqualify myself from hearing the matter.  Her application was misconceived as would be apparent from my Reasons for Judgment delivered 26 July 2007. The basis of the application was apprehended bias which arose from comments which, on the mother’s instructions to her counsel, I had made. It may be that the mother had misunderstood the comments, however, even after I had drawn her counsel’s attention to what in fact had been said, the application was not withdrawn.

2. The mother’s contentions in reply to this sub-paragraph are irrelevant and non-responsive.

An Offer in Writing to Settle the Proceedings and the Terms of any such Offer

1. The applicant relies on this sub-paragraph and refers to correspondence forwarded by way of facsimile by her solicitor to the mother’s solicitor on 16 July 2007.  The letter was Annexure “EB4” to the applicant’s affidavit filed 20 July 2007, and a copy was annexed to her written submissions for convenience.  The letter was fairly summarised in the written submissions as being one where the child’s return was sought and where the letter was forwarded to the mother’s lawyers in order to avoid the recovery process and the costs of further litigation.  I agree with the contention that an opportunity to comply with the earlier orders was thereby granted.

2. The mother in the written submissions in reply confirms the agreement reached in correspondence and again submits that the mother made all attempts to comply with the agreement, however, M refused to return to her sister’s care.

3. To my mind, the letter was not “an offer in writing to the other party to the proceedings to settle the proceedings”.  It is a matter however, which I can, and will, take into account pursuant to sub-par (g).

Such Other Matters as the Court thinks Relevant

1. It is clear by this sub-paragraph that the list of factors which precede it is not meant to limit the Court’s exercise of discretion.

2. There are two matters which to my mind are relevant and I will address those before turning to the parties’ written submissions.

3. First, I do take into account under this sub-paragraph the attempts made by the applicant to resolve the situation prior to commencing litigation. She acted reasonably in all the circumstances. She attempted to avoid the costs of litigation and the distress which would have been caused by the recovery process. The applicant raised this pursuant to s 117(2A)(f), but as seen, it is more appropriately to be dealt with under sub-par (g). In response to that submission the mother relied again on M’s “refusal” to return to the care of her sister.

4. The applicant also relied on the mother’s history in earlier proceedings, namely, alleged breaches of orders. The history of the matter does indicate that the mother, on a number of occasions, did not comply with Court orders.  The proceedings under consideration, however, are those relating to costs incurred in connection with the recovery application, not earlier proceedings.  I do not therefore take the earlier breaches into account.  For the same reason I place no reliance on the allegation that the mother did not facilitate telephone communications.

5. The second matter which I raise at this stage relates to the submission of the applicant that the evidence did not establish that the mother made any reasonable attempt to return M to the applicant’s care pursuant to the orders of 29 June 2007.  I have explained in discussion of sub-s (2A)(d) why it was that the mother did not do all that was within her power to comply with the orders.  That leads me to conclude that this submission is well founded, however I am concerned not to “double-count”.

6. In her written submissions the applicant raised a number of matters which were contended to fall within this sub-paragraph.  In broad terms, the submissions relate to the closeness in proximity between the conclusion of the trial and the recovery proceedings being issued.  It was noted that the orders were made by consent and with assistance from the I C L and that the consent orders had been explained in detail to M by the I C L and by Ms B.  It was submitted that M had accepted the new living arrangements and the terms of the orders, however, the mother’s behaviour in failing to return the child was symptomatic of her previous conduct in this matter whereby she had failed to take any responsibility or accountability for her conduct.  It was then submitted that by extension of the foregoing matters, the mother’s conduct in interfering with the transition for the child between her home and the applicant’s home was a relevant matter which should be taken into consideration.

7. The applicant raised in her written submissions a number of matters which were said to be relevant under this sub-paragraph.  To my mind the matters contained in paragraphs (i), (ii) and (vi) do not raise matters which are of sufficient weight to influence the outcome of these proceedings, or alternatively, those matters are encompassed in earlier matters which I have discussed.

8. I do take into account the fact that an earlier order for costs which was made against the mother was stayed pending final resolution of the property matters between the father and the mother, but only in the sense that the submission goes on to suggest that if an order for costs is made against the mother, that order should not be stayed.  The matters raised in (vii) and (viii) refer to the mother’s funding of legal proceedings and have been dealt with earlier.

9. I have already considered what was submitted in (ix).

10. The mother’s submissions which are said to be reliant upon s 117(2A)(g) concentrate on her alleged lack of participation in M’s decision to run away. It is then submitted that she ‘reluctantly accepts the orders and will continue to abide by them’.  (My emphasis).

11. Thereafter the mother effectively abdicates any responsibility for the lack of compliance with the Court orders and the consequent discovery application.  I have sufficiently dealt with this matter earlier and will not further address it.

12. Paragraph 41 of the mother’s written submissions is totally irrelevant.  It is a submission that the orders ‘are obviously not in the child’s best interests’ and goes on to set out the reasons why this is so, at least according to the mother.

13. In par 42 of the mother’s written submissions it is again asserted that she acted “purely on the basis of what, in her opinion as the child’s mother, was in the best interests of the child …”  Again this has been sufficiently dealt with earlier.

14. In par 45 the mother repeats that the applicant’s costs have been incurred because ‘[M]’ refused to be bound by the orders.

15. The mother’s contention in par 46 is that she “should not be punished by punitive measures where her conduct has been thoroughly motivated by the best interests of the child”.  Again this has been earlier discussed.  However the reference to “punitive measures” cannot pass without comment. The authorities make it clear that an order for costs is compensatory and not made for the purpose of punishment.  (See for example Cassidy & Murray (1995) FLC 92-633; Lataudis & Casey (1990) 170 CLR 534). That is the approach I apply to the present case, subject of course to the provisions of the legislation.

Conclusion

1. It is probable that the applicant is in a better financial situation than is the mother. That factor favours the mother. However there are factors which favour the applicant, and in particular those discussed pursuant to s 117(2A)(d), (e) and (g). In my view, those factors outweigh the factor related to the parties respective financial circumstances and in my view justify an award of costs being made against the mother.

2. The matter does not stop there however, given that it is sought that those costs should be awarded on an indemnity basis.

Indemnity Costs

1. There is no doubt that the Court has the power to award indemnity costs, however it must be borne in mind that an award on this basis is an exception in this Court as well as in other jurisdictions (see Kohan (1993) FLC 92-340 and Colgate-Palmolive Company and Anor & Cussons Pty Ltd (1993) 46 FLC  R22).

2. Chapter 19 of the Family Law Rules 2004 (“the Rules”) deals with and regulates charges which lawyers may make in family law cases, except where the Court is exercising its bankruptcy jurisdiction.

3. The Explanatory Guide to the Rules defined indemnity costs as being “an entitlement to costs, including costs under a Costs Agreement, for all costs incurred, other than costs that are unreasonable in an amount or have been incurred unreasonably”.

4. Where a party applies for an order for costs on an indemnity basis, the Court must be informed if the party is bound by a Costs Agreement in relation to those costs, and if so the terms of the Costs Agreement.

5. I have not been advised as to whether there is a Costs Agreement.  I have been provided by way of annexure to the submissions with a copy of an itemised schedule of costs together with Counsel’s fee slip for his Court appearance on 25 July 2007.

6. No submissions were made on behalf of the applicant or by way of response as to the quantum which was being sought, nor as to the basis for seeking or resisting an order for indemnity.

7. In Yunghanns (2000) FLC 93-029 the Full Court specifically acknowledged that the categories of circumstances that might give rise to an indemnity order are not closed. The Court said at 87,471:

   “…and 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 an order is sought.  All that is required is that the Court asked to exercise the discretion be satisfied that some ‘particular facts and circumstances of the case in question warrant the making of an order for repayment of costs other than on a party/party basis’.”

8. The Colgate-Palmolive Company & Cussons Pty Ltd case is cited as authority.

9. In the present case I do not see any “special or unusual” feature of such an “exceptional” kind as to justify a departure from ordinary practice.

Quantum of Costs

1. It is desirable to avoid the costs and delays associated with an assessment of costs if this is at all possible. The assessment of costs in itself is time consuming and expensive.  I have considered the possibility of making an order that the quantum for costs be fixed by agreement however I have little doubt that the parties will be unable to agree as to a figure.

2. In those circumstances I propose to fix the costs in the sum of $3,800.00 which is a little more than two thirds of the amount claimed by the applicant.  I am comfortably satisfied that she would receive such an amount on assessment.

3. There has been no application for a stay, however I will order that the order not be executed for a period of forty-five (45) days.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate

Date: 7 December 2007