Cardos & Rafter
[2024] FedCFamC1A 157
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cardos & Rafter [2024] FedCFamC1A 157
Appeal from: Cardos & Rafter [2024] FCWAM 77 Appeal number: NAA 147 of 2024 File number: PTW 6657 of 2022 Judgment of: CHRISTIE J Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interim spouse maintenance – Where appellant seeks leave to appeal from interim spouse maintenance orders – Where appellant failed to demonstrate substantial injustice –– Leave to appeal refused – Appeal dismissed – Appellant to pay the respondent’s costs in fixed sum. Legislation: Family Law Act 1975 (Cth) s 83
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r.13.1
Cases cited: Adcock & Sealy [2024] FedCFamC1A 137
Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Godard and Dorsett [2017] FamCAFC 220
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Keymer & Keymer [2020] FamCAFC 70
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Qin & Donato [2023] FedCFamC1A 223
Raymond & Raymond (2024) FLC 94-180; [2024] FedCFamC1A 45
Redman & Redman (1987) FLC 91-805; [1987] FamCA 2
Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Seden & Kehoe [2020] FamCAFC 294
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Number of paragraphs: 71 Date of hearing: 29 August 2024 Place: Heard in Perth, delivered in Sydney Counsel for the Appellant: Dr Ashdown Solicitor for the Appellant: Milevski Family Lawyers Counsel for the Respondent: Mr Sloan Solicitor for the Respondent: Kim Wilson & Co Family Lawyers ORDERS
PTW 6657 of 2022
NAA 147 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CARDOS
Appellant
AND: MS RAFTER
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused.
2.The appellant pay the respondent’s costs in the sum of $13,500.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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, Cardos & Rafter, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from orders of a Magistrate of the Family Court of Western Australia.
The orders the subject of appeal are interlocutory in nature and leave to appeal is required.
I am considering both the application for leave and the appeal simultaneously as permitted pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
For the reasons which follow the application for leave will be refused.
LEAVE TO APPEAL
It is necessary to consider leave first, albeit I accept that the application for leave can only be properly understood in the context of consideration of the merits of the appeal itself.
In Medlow & Medlow (2016) FLC 93-692 (“Medlow”), the Full Court of the Family Court of Australia set out at [57] the principles to be applied to an application for leave to appeal concluding that leave to appeal will only be granted where:
(a)The decision of the primary judge was “attended by sufficient” doubt to warrant its reconsideration; and
(b)If leave were refused, a “substantial injustice” would result, supposing the original decision to be wrong.
I accept that some analysis of the proposed appeal grounds is necessary to answer both whether the decision is attended by sufficient doubt and whether the appellant would suffer a substantial injustice.
THE TRIAL
The parties filed what – in the context of interlocutory litigation, where it is acknowledged the court is conducting a curtailed inquiry, were comprehensive affidavits, reports, schedules and submissions.
The observations of Aldridge J in Qin & Donato [2023] FedCFamC1A 223 (“Qin”) bear repeating:
[6] In hearing interim spousal maintenance, the Court does not conduct an audit of the parties’ expenses or require extensive proof of every expense. Such a course would place an intolerable burden on those seeking maintenance, who after all, are doing so because they assert they are unable to support themselves adequately.
[7] Of course, the applicant must prove his or her case. However, long standing and widely accepted authority states the Court conducts “not perhaps as final or exhaustive a hearing as would be the case if one were hearing the matter finally” (Williamson and Williamson (1978) FLC 90-505 at 77,650). This was quoted with approval by the Full Court in Redman and Redman (1987) FLC 91-805 at 76,081 where the Full Court added:
The evidence need not be so extensive and the findings not so precise.
[8] This last comment was approved by the High Court in Hall v Hall (2016) 257 CLR 490.
The appellant is a professional. The respondent is a part-time self-employed allied health professional. The respondent has a disability and is in receipt of National Disability Insurance Scheme funding.
The parties were in a relationship for more than 20 years and separated in June 2021.
On 31 March 2023 an interim order was made following a contested interim hearing. That order provided (among other things) that the appellant pay the respondent spouse maintenance in the weekly sum of $2,168.
On 17 May 2024 in adjudication of a subsequent interlocutory application, the Magistrate was satisfied that circumstances had changed so as to warrant modification of the first interim order. The changed circumstances related to the modest income which the respondent was now generating from self-employment.
The Magistrate considered the comprehensive material and found that the respondent’s changed financial circumstances attracted the operation of s 83 of the Family Law Act 1975 (Cth) (“the Act”) to modify the existing order.
The scope of the parties’ dispute was narrow. The appellant conceded both capacity and need. Accordingly, the hearing focused on:
(a)The extent of the wife’s capacity to meet her own reasonable needs; and
(b)Whether the expenses claimed were reasonable and necessary.
The Magistrate ordered that appellant pay to the respondent $1,224 per week.
It is from those orders that, if leave is granted, the appeal lies.
THE APPEAL
If leave were granted the appellant proposes appealing orders 1, 2, 3 and 5. Order 1 discharged Order 2(b) of the orders of 31 March 2023 as at 5 December 2023. Order 2 provided for payment of a periodic sum payable by the appellant as spouse maintenance for the respondent. Order 3 reserved to the trial judge a question as to treatment of any monies paid after 5 December 2024 (although this is an error and should have read 5 December 2023). Order 5 was a costs order which required the respondent to pay the appellant $6,000 by way of costs “thrown away”.
The authorities have consistently noted the acceptability of a truncated hearing and a broad brush approach to findings and reasons in cases dealing with interim spouse maintenance: see Meadows & Meadows (2019) FLC 93-883; Seden & Kehoe [2020] FamCAFC 294; Keymer & Keymer [2020] FamCAFC 70; and Redman & Redman (1987) FLC 91-805 at 76,081.
Ground 1 – The Magistrate erred in determining the respondent’s spousal maintenance order by including or excluding various amounts
The complaint is of a factual error (or errors) sufficient to constitute appellate error. The identified errors related to both expenses and income.
I am conscious of the distinction, identified by Austin J in Raymond & Raymond (2024) FLC 94-180 between:
[24] … the discretionary exercise of refusing to allow a party to have all of his or her claimed living expenses, and on the other hand finding his or her living expenses are actually less than he or she claims. The latter entails a factual finding, whereas the former does not.
The categories identified by the appellant contain examples of both.
The appellant properly acknowledged that numerically small errors are unlikely to attract appellate intervention.
The respondent properly acknowledged that the reasons contained some factual errors including no allowance for monies received by the respondent as either private health insurance or Medicare rebates.
The appellant submitted that while numerically small errors could not, without more, amount to appellate error – those smaller errors need to be seen in the context of larger errors and in the context of an order which will be in place until final hearing.
I will begin with a consideration of what are identified as the larger errors concerning expenses and income. There are two larger amounts said to represent expenses which are the subject of challenge: “Rehab” ($285) and “Massages” ($110). In addition, there is a larger amount which the appellant contends was incorrectly excluded from the respondent’s income ($197 health insurance/Medicare rebates).
“Rehab”
The learned Magistrate found that the evidence supported the conclusion that rehabilitation was designed to improve function as opposed to maintain function and not covered by the NDIS but plainly a reasonable expense in this context.
The appellant contended that its inclusion in the total was unreasonable. The learned Magistrate (while critical of the respondent for not providing current detail) found the expense is one which the respondent has historically incurred, is likely to incur and is reasonable. The fact that the appellant was not successful in persuading the learned Magistrate otherwise is no basis for an appeal.
Massage
In order to satisfy an appeal court that the figure is incorrect it would need to be established that it was not open on the evidence.
It was established that the respondent had had massage treatments regularly. There had been an earlier allowance of $110 per week in the original spouse maintenance order. It was established that the respondent found the massage treatment beneficial. It was established that the annual cost of massages exceeded the amount the Magistrate allowed. The appellant sought that there be no allowance for massages at all. The appellant did so notwithstanding acknowledging that, even on his calculations the actual expenditure was not NIL. It can only be concluded that he did so on the basis that he contends such expenditure is not reasonable. The learned Magistrate disagreed. An appeal is not a further opportunity to debate the conclusion of reasonableness.
There is no principle of law that requires that the amount which is allowed must represent past actual expenditure since to adopt such an approach would be to preclude a claim by any person who had been unable to fund their reasonable expenses. The conclusion about the cost and frequency was open and does not invite appellate intervention.
Failure to include “income”
The respondent accepts that her case before the Magistrate acknowledged the appropriateness of calculating her shortfall in income over expenses with regard to her receipt of rebates from private health insurance and Medicare. The Magistrate was plainly aware of this concession but it would appear that she failed to bring it to account when calculating the weekly sum.
$197 is not an insignificant weekly sum. However, the respondent says (and I accept) that $197 is premised on an outlay in the sum sought by the respondent and accordingly the Magistrate’s conclusion to disallow certain claimed medical expenses is likely to reduce the rebate payable. The exact figure likely to be received cannot (and could not) be calculated on the available evidence, hence the appropriateness of a broad brush approach.
I turn now to consider some of the smaller amounts which the appellant contends were incorrectly included in reaching the total amount.
Urodynamics
The appellant contends that the amount which was allocated to expenditure on “urodynamics” was $34 but ought to have been $19.
This submission is grounded in the wife’s evidence that her total expenditure in 2020, 2021 and 2023 (3 years) averaged $34.86. The appellant submits that this failed to take into account rebates which would reduce the weekly out of pocket amount to $19 per week. It is not plain to me whether this calculation by the appellant also took into consideration a potential gap fee if the whole of an annual continence assessment was not covered by the NDIS plan. This type of detail underlines the difficulty of establishing with mathematical precision the precise amount necessary. The difference is at maximum $15 per week.
Private health insurance
The appellant also contends that the Magistrate was in error when she declined to find that the amount the appellant claimed as the cost of private health insurance ought to have been discounted by $13 per week on account of the availability of a government rebate. The reasons for judgment at [130] refer to the evidentiary basis for the Magistrate’s conclusion. Something more than restating the submissions made at the earlier hearing (which were considered and rejected) is required to demonstrate error.
Medical equipment
The respondent contended that not all equipment was covered by her NDIS plan. The Magistrate made a modest inclusion of $31 per week relating to unfunded exercise equipment, modifications and replacement. I am not satisfied that the appellant has demonstrated an error.
Household supplies
The respondent estimated her expenditure on household supplies as averaging $220 per week. This included cleaning products and one-off purchases as well as repairs and maintenance. The appellant argued that the figure was too high and included one-off purchases which would not recur. The pernickety approach to what can only be an estimate based on past expenditure does not demonstrate appellate error. The Magistrate considered the evidence, each party’s submissions and exercised her discretion to include $183 per week. No error is demonstrated.
Automobile insurance membership
I do not propose to consider the incorrect inclusion of $2 per week for automobile insurance membership. There can be no better example of what Aldridge J referred to as being drawn into the “vortex of minutiae”: Qin at [11].
The appellant has demonstrated that the figures which related to some expenses and some income, as reflected in the ultimate order, are attended by doubt. But only the failure to bring to account private health insurance premiums and Medicare rebates comes close to approaching “sufficient doubt”.
The respondent neither cross-appealed nor filed a notice of contention but did submit that there were other contextual matters which were relevant to the determination of whether the orders were in fact attended by sufficient doubt and/or would work a substantial injustice. An example was the use of the gross income received by the respondent as a measure of the income available to her to meet her weekly commitments. I accept that the gross income figure did not take into account the cost of earning income (for example book-keeping). I accept the submission that consideration of these factors is relevant to my assessment of the appropriateness (or otherwise) of granting leave.
Ground 2 – The Magistrate either made a decision without adequate reasons, or miscarried in the exercise of her discretion so far outside of reasonable bounds as to constitute legal error
With respect to counsel for the appellant, the ground articulates two specific and distinct complaints. The first relates to adequacy of reasons. The second asserts a miscarriage in the exercise of the primary judge’s broad discretion.
The law in respect of adequacy of reasons is well-settled. Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached or the pathway that led to a stated conclusion (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (“Sun Alliance Insurance Ltd”) (cited with approval in Bennett and Bennett (1991) FLC 92-191 (“Bennett”)). See, also: CDJ v VAJ (1998) 197 CLR 172 at [108] – [113]).
In Bennett at 78,266, the Full Court adopted the test for adequacy of reasons set out by Gray J in Sun Alliance Insurance Ltd, who said at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
b) justice is not seen to have been done.
Here, the pathway by which the Magistrate reached the decision is clearly delineated and the basis upon which the resulting orders were made is appropriately explained having regard to the interlocutory nature of the hearing. A failure to mention each fact will not, without more, amount to error: Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386. This asserted ground is without merit.
Turning to the contention that the decision was “so far outside of reasonable bounds as to constitute legal error”, as this court observed in Adcock & Sealy [2024] FedCFamC1A 137, where an appellant, such as the appellant in this case, alleges that the primary judge’s orders were plainly wrong, this is the type of error which can be characterised as:
[29] … only capable of being implied by reason of an appellant being unable to identify any other form of frank legal, factual or discretionary error which vitiates the discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505). Such an error is commonly contended as a last resort and it seldom succeeds because of the generous ambit of discretion afforded by the statute (Gronow v Gronow (1979) 144 CLR 513 at 519–520; Norbis v Norbis (1986) 161 CLR 513 (“Norbis”). Relevantly, such an error may be inferred from the incongruence between the result and the underlying evidence, as synthesised with applicable legal principles. In the upshot, it can be contended the decision really amounts to a failure to properly exercise the discretion entrusted to the Court (Lovell & Lovell (1950) 81 CLR 513 at 519).
The appellant gives four particulars as examples of the failure to give reasons or miscarriage in the reasonable exercise of discretion. Each of these examples involved the appellant arguing before the Magistrate that the amount claimed by the respondent was excessive having regard to either the expenses actually incurred or his opinion as to the reasonableness of the sum sought. I have already discussed above at [31] the problematic nature of fixing quantum by reference only to expenditure actually incurred. I now turn to consider whether any of the particulars evince a miscarriage of the Magistrate’s discretion.
Expenditure on holidays
The appellant estimates the cost of holidays for himself at $429 per week. The Magistrate allowed $113 for the respondent for holidays. The adequacy of reasons is contextual. Given this context reasons may well be unnecessary, but the Magistrate did give sound reasons at [169] – [172].
Household supplies
It is useful to outline the scope of the dispute. The respondent sought an allowance of $220 per week for household supplies. The appellant contended the appropriate allowance was $30 per week. The Magistrate made an allowance of $183 per week. The Magistrate devoted eight paragraphs ([134] – [140]) to discussion of household supplies. The reasons are both adequate and the resulting order an understandable exercise of discretion. The fact that the appellant disagrees is not appealable error.
Phone
The reasons [141] – [143] support the allowance and the resulting order. The appellant submitted that it was unnecessary or unreasonable for the respondent to operate a separate phone for business purposes. He made that submission before the Magistrate and in the exercise of her discretion her Honour found otherwise. This does not attract appellate intervention.
Toiletries
The Magistrate reviewed the evidence and submissions and gave reasons for her conclusion at [173] – [177]. It was a proper exercise of discretion.
It should be observed that the Act provides that parties should enjoy a standard of living that in all the circumstances is reasonable. The circumstances in this case included that the parties were in a lengthy relationship and at its conclusion the respondent was unable to support herself adequately. The Magistrate was entitled to find the insistence of the appellant on dictating what was reasonable expenditure for haircuts and toiletries was not the measure. In the absence of agreement the Magistrate was obliged to reach the best conclusion available on the untested evidence.
Ground 3 - Having determined that the necessary requirements of s 83(1) had been met, and therefore the determination of the maintenance application was de novo, the learned first instance magistrate erroneously fettered her discretion in then relying upon findings made in the previous hearing
The Magistrate well-understood that she was conducting a hearing de novo: see [57], [97]. The references to the previous determination were relevant factual findings upon which the previous order had been based. The Magistrate examined the new evidence on the disputed items and in some cases departed from her previous determination. The fact that she did not depart from the previous determination in respect of every item does not belie a failure of proper process.
This ground is misconceived.
Ground 4 – the learned magistrate either made a decision without adequate reasons, or miscarried in the exercise of her discretion so far outside of reasonable bounds as to constitute legal error, by granting the Applicant only $6,000 in costs thrown away for the 5 December 2023 hearing
The discretion to award costs (or not) is broad: Robinson & Higginbotham (1991) FLC 92-209. Provided the Magistrate took into account those relevant statutory matters which were the subject of evidence and submission a complaint about the resulting order will be unlikely to sound in reversible error – and so it is here.
Employing the expression “costs thrown away” is a gloss on the words of the Act.
The real question is about whether or not the costs which were awarded ought to have been awarded on a basis which indemnified the appellant (at least in respect of that aspect of the proceeding).
In D & D (Costs) (No 2) (2010) FLC 93-435 the Full Court of the Family Court of Australia said:
[27] The Court in Limousin (supra) also referred to the judgment of Shephard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 upon which learned Counsel for the Wife relies in support of the present application. Shephard J said in Colgate-Palmolive (supra) (at 256):
2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …
…
[28] Reference was made to the later decision of the Full Court of Yunghanns v Yunghanns (2000) FLC 93‑029 in which it was said (at 87,471, par 31):
“It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.”
[29] As was the case in Limousin (supra), the following passage from the Judgment of Shephard J in Colgate-Palmolive (supra) is instructive (at 257):
“… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records).”
(Emphasis added)
In Bant & Clayton (Costs) (2016) 56 Fam LR 31 the Full Court referred to these passages and concluded that to depart from the ordinary rule of calculating costs on a party/party basis, exceptional circumstances needed to be demonstrated and even the existence of exceptional circumstances did not oblige a court to make an order for indemnity costs.
The appellant has approached the matter as though once one of the matters which has previously been identified as the basis for an award of indemnity costs is established then indemnity costs follow. The Magistrate exercised the costs discretion appropriately and no error is established.
Ground 5 - The learned magistrate either made a decision without adequate reasons, or miscarried in the exercise of her discretion so far outside of reasonable bounds as to constitute legal error, by failing to make an order that the respondent pay the Applicant’s indemnity costs of the Application
Both the applicant and respondent sought an order that each party pay the costs of the other. The appellant, by his senior counsel’s supplementary written submissions dated 19 February 2024, did not seek indemnity costs.
As I understood the submission on behalf of the appellant on appeal, he contended that the Magistrate was in error in failing to make a costs order in the appellant’s favour in the exercise of her discretion or in error in so far as she failed to give reasons for so doing.
There are some significant problems with that submission:
(1)The appellant has not appealed against Order 7 which had the effect of dismissing both parties’ costs application; and
(2)The appellant’s counsel explicitly abandoned a costs application:
HER HONOUR: So you won’t be seeking a costs application arising out of today?
[MS] [B]: No, no, no.
(Transcript 20 February 2024, p. 38-39 lines 50-5)
In the above circumstances this ground was ill-conceived and will not be further considered.
DISPOSITION
Having considered the appeal grounds it is appropriate that I return to the determination of the application for leave.
As discussed, it is accepted that the Magistrate was in error in failing to include an amount by way of private health insurance rebate or Medicare rebate as asserted by Ground 1. But it is less clear that the amount should have been as the appellant contends ($197). It is also accepted that the income of the respondent should have included dividends ($9) and the expenses of the respondent should not have included automobile insurance membership ($2). The appellant argued that the contentious amounts totalled $650 per week in aggregate. That includes all amounts which the appellant argued were contentious. As discussed above most of those amounts were a proper exercise of the Magistrate’s discretion.
It follows that I accept that the frank errors may on one view be sufficient to satisfy the first limb of the test in Medlow, but I am not satisfied that the additional amount which the appellant will be required to pay on an interim basis amounts to a substantial injustice in satisfaction of the second limb. The parties are yet to reach agreement or have adjudicated their final orders for property adjustment. If it is contended by the appellant that there is an injustice in the amounts which have been paid – the context of a final hearing where the evidence can be tested is a proper forum in which to remedy same.
As the Full Court observed in Godard and Dorsett [2017] FamCAFC 220 at [10]:
There are good reasons why restrictions are placed on litigants aggrieved by a decision seeking to engage the appellate processes of a superior court. Fundamentally, such barriers are erected to prevent the business of courts being brought to a standstill as a result of people having an untrammelled right to appeal every decision.
COSTS
The application for leave to appeal has been wholly unsuccessful. The appellant properly accepted that it would, in those circumstances, be difficult to resist an order that the appellant pay the respondent’s costs of the appeal.
The respondent’s costs schedule sought costs in the sum of $17,227. The costs of “scanning appeal book” at scale constituted $10,264 of this total. The appellant submitted that proper costs might be assessed in the range of $12,000 to $15,000. I accept that it is appropriate to reduce the amount referrable to scanning the appeal book but with the appreciation that this task was undertaken by the respondent’s solicitor advocate as part of the preparation for the appeal and accordingly is not entirely out of step with the preparation cost sought by the appellant had he been successful. Both parties agreed that it was proper to fix any costs sum and, in those circumstances, I propose to order costs in the sum of $13,500.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 12 September 2024
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