Carros & Carros (No 3)
[2023] FedCFamC2F 1252
•28 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carros & Carros (No 3) [2023] FedCFamC2F 1252
File number(s): MLC 3767 of 2021 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 28 September 2023 Catchwords: FAMILY LAW – COSTS – Calderbank offer to settle not accepted by wife – ultimate outcome more favourable to husband than was offered – order for costs – indemnity costs refused – costs to be calculated pursuant to scale – matter to be listed for mention for costs to be fixed if parties cannot agree on quantum Legislation: Family Law Act 1975 (Cth) ss. 79, 117, 117C
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 191
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch. 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr. 1.04, 12.13
Central Practice Direction – Family Law Case Management
Cases cited: Browne & Green (2002) FLC 93–115; [2002] FamCA 791
Calderbank v Calderbank [1975] 3 All ER 333
Carros & Carros (No 2) [2023] FedCFamC2F 564
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 119 CLR 118; [1993] FCA 801
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Hogan & Hogan (1986) FLC 91–704; [1986] FamCA 34
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Pennisi & Pennisi (1997) FLC 92–774; [1997] FamCA 39
Yunghanns v Yunghanns (2000) FLC 93–029; [2000] FamCA 681
Division: Division 2 Family Law Number of paragraphs: 62 Date of last submission/s: 22 August 2023 Date of hearing: on the papers Place: Melbourne Solicitors for the Applicant: Lampe Family Lawyers Solicitors for the Respondent: Greg Murphy Legal ORDERS
MLC 3767 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARROS
Applicant
AND: MS CARROS
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The respondent (“wife”) pay to the applicant (“husband”) the costs of these proceedings relating to the period from 11 January 2022 to 17 May 2023 in an amount to be fixed, calculated pursuant to the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“the Scale”).
2.If after conferring via their lawyers, the parties are unable to reach agreement on the quantum of costs to be fixed for the purposes of order 1 within 14 days from the date of these orders and do not submit an agreed position to chambers by email within that timeframe, the parties and their lawyers attend a mention before Judge A. Humphreys on 23 October 2023 at 9.30 am (via Microsoft Teams) for the purpose of the court fixing costs pursuant to the Scale.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
These reasons concern an application for costs, following the making of final property orders pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
The final hearing of the substantive proceedings was heard over two days in March 2023. Final orders were made on 17 May 2023. These reasons should be read in conjunction with the reasons for judgment (“reasons for judgment”) delivered in the substantive proceedings on 17 May 2023.[1]
[1] Carros & Carros (No 2) [2023] FedCFamC2F 564.
On 9 June 2023, the applicant husband filed an Application in a Proceeding (“costs application”) seeking the respondent wife pay the applicant’s costs for the period of 11 January 2022 to 17 May 2023 in the amount of $48,434.64 and the costs of his costs application. The husband seeks costs on an indemnity basis relying on an offer of settlement to the wife, conveyed in a Calderbank letter dated 9 December 2021.
In her Response to an Application in a Proceeding filed 13 July 2023 (“response”), the wife seeks the costs application be dismissed.
I will refer to each of the parties as husband and wife in these reasons, consistently with the reasons for judgment, without intending any disrespect to the parties.
ISSUES
The issues requiring determination are:
(a)Are there circumstances justifying an order requiring the wife to pay the costs of the husband for the period claimed, from 11 January 2022 to 17 May 2023 (or for some other period)?
(b)If so, should the husband’s costs be paid on an indemnity basis?
(c)If the husband succeeds in obtaining an order for costs, are there circumstances justifying an order requiring the wife to pay the husband’s costs of the costs application?
BACKGROUND
A summary of the parties’ relationship, their positions and the issues in dispute in the substantive proceedings is set out from [2] to [18] of the reasons for judgment.
In short, the final orders made on 17 May 2023 provided for:
(a)The wife to make a payment to the husband in the sum of $984,116;
(b)The husband to transfer his right title and interest in the former matrimonial home to the wife and for the wife to discharge the mortgage secured against the former matrimonial home;
(c)The sale of the former matrimonial home in default of the payment or discharge of the mortgage by the wife and distribution of the net sale proceeds;
(d)The husband to retain his interest in the business; and
(e)The sale of identified chattels and division of the proceeds of sale.
This outcome reflected a division of the parties’ non-superannuation assets in the proportions of 56% to the wife and 44% to the husband with a cash adjustment in lieu of a superannuation split to achieve equalisation of the parties’ superannuation interests. Considered globally, this equated to the wife receiving 54.6% of the property and superannuation and the husband receiving 45.4%.
DOCUMENTS RELIED UPON
Upon filing of the costs application and the wife’s response, the matter was listed for mention on 18 July 2023. Procedural orders were made on that day for the filing of further material and, with the consent of the parties, for the costs application to be determined on the papers.
In determining the costs application, I have relied upon the following documents:
(a)Filed on behalf of the husband:
(i)Application in a Proceeding filed on 9 June 2023;
(ii)Affidavit of the husband filed on 9 June 2023;
(iii)Affidavit of the husband filed on 1 August 2023; and
(iv)Submissions as to costs filed on 1 August 2023;
(b)Filed on behalf of the wife:
(i)Response to an Application in a Proceeding filed on 13 July 2023;
(ii)Affidavit of the wife filed on 13 July 2023; and
(iii)Submissions as to costs filed on 22 August 2023.
RELEVANT LEGAL PRINCIPLES
The general principle as expressed in section 117 of the Act is that each party is to bear their own costs of family law proceedings. However, the court retains a discretion pursuant to section 117(2) to make such order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
No one of those factors prevails over any of the other factors. It is a matter of the weight that is accorded to each of the relevant factors in the discretion of the judge in the circumstances of the matter.[2] However, there is “nothing to prevent any factor being the sole foundation for an order for costs”.[3] Even so, a costs order may only be legitimately made if it is “just in all circumstances”.[4]
[2] Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24].
[3] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41].
[4] Hogan and Hogan (1986) FLC 91-704.
CONSIDERATION
I first consider each of the matters in section 117(2A) of the Act as they apply to this matter.
The financial circumstances of each of the parties
In monetary terms, the final orders see the wife retaining assets and superannuation with a total value of approximately $1.76 million (rounded and including $322,780 in superannuation) and the husband approximately $1.47 million (rounded and including $448,904 in superannuation).
The parties’ income was detailed in the reasons for judgment.[5] In summary, the husband retained the business and deposed to total drawings of $790 per week, which equates to an income of approximately $41,000 per annum. The wife had not been working since mid-2022 due to chronic pain originating from a workplace accident and was receiving weekly payments (by way of wage cover held within her superannuation) of $867 per week and a transition to retirement (TTR) superannuation pension of $205 per week, amounting to approximately $55,700 per annum.
[5] Carros & Carros (No 2) [2023] FedCFamC2F 564 at [5]–[6].
The wife submits that “[w]hilst there is equity in the asset pool from which a costs order can be paid it is still necessary to holistically consider the financial circumstances of the parties.”
Having regard to the parties’ financial circumstances as detailed in the reasons for judgment, I am satisfied the wife has sufficient resources to meet a costs order.
Receipt of assistance by way of legal aid by any party
Neither party is in receipt of assistance by way of legal aid.
Conduct of the parties in relation to the proceedings
Costs orders have previously been made in these proceedings, including:
(a)Against the respondent on 7 February 2023, in the amount of $2,000; and
(b)Against the applicant on 17 May 2023 in the amount of $880.
I do not consider the parties’ conduct, as was taken into account in the making of those costs orders, is relevant to the present costs application.
The wife points to the inaccurate and delayed disclosure by the husband and inaccurate recording of business expenses as matters that weigh against the making of a costs order. I refer to the reasons for judgment and confirm that whilst I was satisfied the husband had mischaracterised personal expenses as business expenses, I was not satisfied his conduct amount to a material non-disclosure, impacted the business valuation or warranted an adjustment pursuant to section 75(2)(o) of the Act. I do not find the husband’s conduct in the litigation precludes the making of a costs order.
I will return to consider the wife’s allegations of inaccurate and delayed disclosure by the husband when considering his offer to settle.
I take into account the wife’s conduct in the litigation as referred to in the reasons for judgment, including by way of example, her detailed focus on the minutiae of the parties’ contributions[6] and on discrepancies in the husband’s business record keeping of relatively minor value in proportion to the value of the parties’ assets.[7] Whilst I do not consider this conduct on its own justifies an order for costs, it is a matter I have taken into account when exercising my discretion to make an order for costs.
[6] See for example, Carros & Carros (No 2) [2023] FedCFamC2F 564 at [106].
[7] Carros & Carros (No 2) [2023] FedCFamC2F 564 at [56] and [58].
I have particular regard to the obligation of parties pursuant to section 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and rule 1.04 of the Rules. Those obligations include to conduct proceedings, including negotiations for settlement, in a way that is consistent with the overarching purpose applying to practice and procedure in the court, being the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
Whether the proceedings were necessitated by a party’s failure to comply with the previous orders
Not applicable.
Whether any party has been wholly unsuccessful in the proceedings
The husband contends the wife has been wholly unsuccessful in the proceedings.
I do not find the wife was wholly unsuccessful in circumstances where she succeeded in resisting the payment sought by the husband at trial of $1,151,885.
Whether an offer has been made in writing to settle the proceedings
In support of his costs application, the husband relies primarily on his offer to settle conveyed as a Calderbank offer in a letter sent by his lawyers to the wife’s lawyers, dated 9 December 2021 and the wife’s subsequent rejection of the offer.
Husband’s offer to settle
The husband’s offer to settle:
(a)Was made on 9 December 2021 the day after the parties attended mediation;
(b)Was addressed to the wife’s solicitor;
(c)Was marked “without prejudice save as to costs”;
(d)Contained a list of assets, liabilities and superannuation that was purported to have been agreed upon at mediation;
(e)Proposed, in monetary terms:
(i)The husband retain his bank account ($5,000), an add-back ($10,000), the business ($56,000), and indemnify the wife for a credit union and credit card liability (totalling $15,000);
(ii)The wife retain the former family home ($2.1 million) and indemnify the husband in respect of the mortgage ($385,000);
(iii)The wife make a cash payment to the husband of $755,863.80; and
(iv)The wife receive $48,650 from the husband’s superannuation by way of a splitting order or (at her election) that the cash payment from the wife to the husband be reduced by $30,000 in lieu of a super split, to $725,863.80;
(f)Recorded the effect of the proposal in percentage terms – that the parties’ non-superannuation assets were to be divided on the basis of 56% to the wife and 44% to the husband – according with my own percentage assessment;
(g)Referred to his belief the former matrimonial home was worth more than $2.1 million;
(h)Remained open for acceptance for 28 days of the date of the offer; and
(i)Was expressed to be made “in accordance with the principles in Calderbank v Calderbank and is a written offer that will be relied upon pursuant to the provisions of section 117(2A)(f) of [the Act].”
Whilst the letter referred to “the principles in Calderbank v Calderbank”, it did not expressly state that it would be relied upon in support of an application for indemnity costs from the date of the offer. However, the wife was legally represented and the principles from Calderbank v Calderbank[8] would have been known to or ascertainable by her lawyers.
[8] Calderbank v Calderbank [1975] 3 All ER 333.
The wife did not accept the offer to settle.
By the time of the final hearing, the parties agreed to exclude their bank balances from the balance sheet of assets and liabilities to be divided between them. The business, to be retained by the husband, had been attributed a lower value by the single expert ($30,610) than the value used for the husband’s offer to settle ($56,000). The former matrimonial home, to be retained by the wife, had increased in value significantly (from $2.1 million to $2.75 million). The value of both parties’ superannuation had increased.
In support of his costs application, the husband submitted:
Had the [wife] accepted the Calderbank Offer she would have enjoyed the entire capital gain on the [Suburb J] property ($650,000) between December 2021 and the revaluation for trial. At Trial the property was valued at $2,750,000.
The wife deposed she did not to accept the Calderbank offer for the following reasons:
(a)She did not want to accept the offer due to issues with disclosure, including concerns about the manner in which the husband was recording personal spending as business expenses;
(b)She had received an updated position with respect to the husband’s bank account only on 7 December 2021;
(c)At the time of the offer there was no agreement as to the value of the balance sheet; and
(d)She had concerns about the single expert business valuation, including the husband’s self-reporting of business documents and that the valuer had not been provided with recent bank statements for the business recording personal expenses of the husband met by the business.
In response, the husband deposed to the communications with the single expert business valuer and in respect of information and documents provided to the valuer. I note the valuer ultimately attributed a lower value to the business than was used by the husband for his offer to settle.
It was submitted on behalf of the wife:
a.In the offer of 9 December 2021, the husband asserts his superannuation was $401,400.00. This was not accurate. Later disclosure on 14 January 2022 would reveal that his superannuation balance as at 22 December 2021 was $425,833.69. The husband undervalued his superannuation balance to the tune of $24,000.00.
b.In the offer of 9 December 2021, the husband asserted a [Super Fund 2] superannuation account balance of $8,527.00. Disclosure on 7 December 2021 would show that the balance as of 30 June 2021 was in fact $11,229.58. Again, superannuation was undervalued by over $3,000.00 and then$14,853.34 on the 14 January 2022.
c.In the offer of 9 December 2021, the husband asserted that he had a credit card visa liability with the CBA of $10,000.00. This was not correct. The disclosure on 14 January 2022 shows that he had a credit limit of $10,000.00 but was not indebted to that amount. At best he was indebted $2,764.50 on 9 December 2021. This inflated the husband’s liabilities in the tune of over $7,000.00.
d.In the offer of 9 December 2021, the husband asserted a credit union liability of $5,000.00. This was not reflected in the disclosure of 14 January 2022.
I note the wife raised these matters in her written submissions (annexing correspondence and statements to those submissions) and did not depose to them in her affidavit filed in respect of the costs application. In any event, I find the discrepancies asserted by the wife of little significance in the context of the parties’ overall ultimate financial positions, including a lower value attributed to the business retained by the husband and a significant increase in the value of the home retained by the wife.
In simple terms, the final orders provide for the wife to make a payment to the husband of $984,116. Had she accepted the husband’s offer to settle in December 2021 without a superannuation split, she would have been obliged to make a payment to him of $725,863.80, being $258,252 less than ultimately ordered.
Wife’s offer to settle
By way of letter dated 2 March 2022, an offer to settle was made on behalf of the wife offering a payment to the husband of $339,505 to be transferred by way of a superannuation split and that he retain his superannuation.
The husband submits that the wife’s offer of settlement dated 2 March 2022 was “far outside the boundaries of a just and equitable resolution of the proceedings” and in direct contradiction to her obligations pursuant to Core Principle 2 of the Central Practice Direction – Family Law Case Management.
Consideration of the parties’ offers to settle
Section 117(2A)(f) requires the court to consider whether either party to the proceedings has made an offer in writing to the other party to settle the proceeding and the terms of any such offer.
Section 117C of the Act provides that if a party makes an offer to settle the proceedings in accordance with any applicable rules of court, the terms of the offer must not be disclosed to the court except for the purpose of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order.
The Full Court has emphasised the importance of giving proper consideration of offers to settle a proceeding, including in Browne & Green(2002) FLC 93–115 at [57]:
…the insertion of s 117C in the legislation is clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in the circumstances where there is adequate knowledge to the parties at the time of the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally to be given.
Consideration of offers is not limited to offers in an amount the same or greater than the final decision. Even if an offer is marginally less than the amount ordered by the court does not mean it is not a factor to be taken into account in determining whether costs should be awarded.[9]
[9] Pennisi & Pennisi [1997] FamCA 39.
In considering the husband’s submission that it was unreasonable for the wife to reject his Calderbank offer, the court should have regard to all of the circumstances existing at the time of the offer and at least the following matters:[10]
(a)The stage of the proceeding at which the offer was received;
(b)The time allowed to the offeree to consider the offer;
(c)The extent of the compromise offered;
(d)The offeree’s prospects of success, assessed as at the date of the offer;
(e)The clarity with which the terms of the offer were expressed; and
(f)Whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.
[10] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435.
In relation to the husband’s offer to settle, I note:
(a)The offer was conveyed at a stage of the proceedings where the parties had a reasonable knowledge of the financial circumstances of the other and of the value of their assets and superannuation. Not all values may have been known precisely, but there was sufficient information for the parties to attend mediation and to negotiate. I am satisfied the wife had adequate knowledge at the time the offer was made to give it proper consideration;
(b)Whilst the wife had concerns about the business valuation, the business comprised a relatively small part of the parties’ assets and was ultimately valued at a lower figure than was used for the purposes of the husband’s offer. The wife’s own evidence at trial was inconsistent with her belief the business was of significant value, including to the effect that the husband was a poor businessman, that he didn’t work hard in the business and his financial contributions generated from the business were modest;
(c)The offer was conveyed sufficiently early (more than 12 months prior to the final hearing), such that the parties would have avoided significant legal costs had it been accepted;
(d)The wife was provided with 28 days to consider the offer to settle, which I consider to be a reasonable period of time considering the parties’ financial circumstances are not complex;
(e)As is evident from the outcome of these proceedings, the husband’s offer to settle was a reasonable offer;
(f)The offer was expressed in clear terms, setting out the assets as agreed by the parties in mediation (this was not disputed by the wife, although she contended some of the values later proved not to be current or accurate), clearly identifying what each party would receive and articulating the effect of the offer in both percentage and monetary terms; and
(g)The husband recorded his belief that the parties’ home was of a higher value than the value relied upon in his offer. I note the following comments made by Wilson J in Agosti & Agosti [2021] FedCFamC1F 72 at [34], which also apply to this matter:
Once it is recognised, as it must be, that the relevant date for the consideration of property and its value is the date of the trial in court or the arbitral hearing in an arbitration, then it must also be recognised that often the value of real estate increases between the date of the rejection of an offer of compromise and the date of a trial in court or a hearing in an arbitration. But the mere fact of that occurrence should not deprive a party of his or her costs where that party has bettered at trial or arbitration the sum that was the subject of the offer of compromise. Where property prices are increasing, it is always possible for an offeror of a compromise to state that the offer is open for a prescribed period but not beyond. If the market increases between the rejection or lapse of that offer, a respondent can hedge his or her risk by putting a different offer of compromise to reflect the movement in property prices. But that is an altogether different proposition to saying that by reason of the increase in property prices a party who, after trial or arbitration, betters the sum that was earlier offered should not have his or her costs.
I have also considered the wife’s offer to settle. According to the wife’s submissions, the discrepancies she identified in the value of the husband’s superannuation and liabilities were clarified by the husband’s disclosure provided on 14 January 2022, shortly after his offer to settle expired and before her counter-offer. Even at that stage of the proceeding, acknowledging her concern in relation to the business valuation, it would have been highly unlikely the wife could reasonably expect to achieve an outcome in terms of her offer, including for the husband to receive the majority (if not the entirety) of the parties’ superannuation as part of his entitlements.
Having regard to all of the above matters, I consider the wife’s rejection of the husband’s offer to settle justifies an order for costs.
Such other matters as the court considers relevant
Neither party raised any other matter it was submitted is relevant pursuant to section 117(2A)(g).
CALCULATION OF COSTS
I note the husband’s offer to settle dated 9 December 2021 was expressed to be open for 28 days, so until 6 January 2022. Costs are sought by the husband from 11 January 2022, which I observe from the invoices relied upon by him is the first day work was undertaken on his behalf in 2022. I find it appropriate for costs to be payable from that date.
The husband seeks an order for indemnity costs, relying on his Calderbank offer.
Pursuant to rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”):
A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
Annexed to the husband’s written submissions were copies of the costs agreement entered into with his lawyers and tax invoices issued by his lawyers for the period of 15 December 2021 to 8 June 2023. He sought his costs be fixed as itemised in those invoices, adjusted to take into account previous costs orders.
Part 12.6 of the Rules provides for the calculation of costs if a costs order is made. In particular, the court may order that a party is entitled to costs:
(a)Of a specific amount; or
(b)As assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)To be calculated in accordance with the method stated in the order; or
(d)For part of the proceeding, or part of an amount, assessed in accordance with the scale of costs provided in the Rules.
The Full Court has confirmed that 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.” [11]
[11] Kohan & Kohan (1993) FLC 92-340 at [79,614]; Yunghanns v Yunghanns at [87,470–1], citing Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 119 CLR 118 at [233].
Imprudently refusing an offer to compromise is one situation envisaged where indemnity costs might be considered. However, “the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”.[12]
[12] Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at [24].
Whilst the making of a Calderbank offer may in some circumstances justify an order for indemnity costs, I do not find the husband’s offer to settle, when considered with the other circumstances of this case, justifies an order for indemnity costs.
Instead, I find it is just in all the circumstances for costs to be paid pursuant to the scale of costs in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“the Scale”).
The applicant did not provide a calculation of costs at scale in the alternative to his application for indemnity costs.
In the hope of avoiding further costs for the parties, I will first provide them with an opportunity confer via their lawyers in an effort to reach agreement as to the quantum of cost to be fixed pursuant to the Scale. If agreement cannot be reached on the calculation of costs pursuant to the Scale, the matter will be listed for mention for costs to be fixed by the court. Should that mention be required, I invite both parties to tender their calculations at the hearing, referencing all amounts claimed by item number from the Scale. Once fixed, costs will be payable by the wife within 30 days.
I do not intend to make an order for costs in respect of the costs application given the husband has not been successful in his application for indemnity costs, unless evidence is adduced prior to the mention of an offer made pre-dating this determination, to settle the costs application at or less than at scale.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 28 September 2023
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