CHESTER and CHESTER

[2021] FCWA 61

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CHESTER and CHESTER [2021] FCWA 61

CORAM: SUTHERLAND CJ

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 13 APRIL 2021

FILE NO/S: PTW 5789 of 2018

BETWEEN: MR CHESTER

Applicant

AND

MS CHESTER

Respondent

Catchwords:

COSTS - Enforcement proceedings - Circumstances justifying order - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Meredith
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	WLM Legal
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Anison & Anison (2019) FLC 93-908

B & B [2015] FCWA 65

Chester and Chester [2019] FCWA 242

Collins & Collins (1985) FLC 91-603

Fitzgerald v Fish (2005) 33 Fam LR 123

Greedy and Greedy (1982) FLC 91-250

I and I (No 2) (1995) FLC 92-625

Luadaka v Luadaka (1998) FLC 92-830

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chester and Chester has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Mr Chester] (the “husband”) seeks a costs order against [Ms Chester] (the “wife”) in relation to proceedings brought by him to enforce final orders made by this Court on 4 December 2019 for the sale of the former matrimonial home in [Town A] (the “[Town A Property]”). The husband claims costs totalling $10,278.50, comprising:

a)$5,708 in relation to enforcement proceedings commenced by the husband on 10 September 2020, and which were heard on 10 November 2020 (the “enforcement (sole trustee) proceedings”);

b)$2,772 in respect of the work done to apply for costs of the sole trustee enforcement proceedings; and

c)$1798.50 in relation to further enforcement proceedings commenced by the husband on 24 December 2020, and which were heard on 22 January 2021 (the “enforcement (warrant) proceedings”).

2I observe that the costs claimed by the husband were calculated on the basis of time spent by his solicitors, with a “principal” charging $275 per hour (including GST); and a “paralegal” charging either $165 per hour (including GST) or $110 per hour (inclusive GST). Pursuant to Schedule 3 to the Family Law Rules 2004 (Cth), time reasonably spent by a lawyer on work requiring the skill of a lawyer may be charged out at $251.50 per hour (including GST), whereas time reasonably spent by a clerk[1] on work may be charged out at $163.04 per hour (including GST). As seen, the costs claimed by the husband were on a solicitor-client basis, and not calculated at scale.

[1] I am prepared to equate a “paralegal” with a “clerk of a lawyer”, for the purposes of Schedule 3 to the Rules.

3In relation to the enforcement (sole trustee) proceedings, I noted for the record at the hearing on 10 November 2020 that the parties had 28 days to file any costs application. The husband filed such application on 8 December 2020 (being the last day to do so), and his written submissions were annexed to the affidavit of his solicitor filed in support thereof. The wife responded to the husband’s costs application on 1 February 2021 by filing a Form 2A Response and written submissions.

4Confusingly, the wife’s sought an order that: “The [wife] shall pay half of the [husband’s] costs in respect of the application for costs or to be assessed in accordance with the schedule 3 of the Family Law Rules 2004”.[2] However, at paragraph [24] of the wife’s submissions, she asked the Court “not to make an order for costs against her”. The husband filed further written submissions in reply on 10 February 2021.

[2] Wife’s Form 2A Response filed 1 February 2021, Part B.

5On 12 February 2021, the husband filed another set of written submissions, wherein he claimed his costs of making the costs application.

6In relation to the enforcement (warrant) proceedings, I made the following procedural orders on 22 January 2021 in relation to costs:

3.In the event the [husband] seeks the costs of the enforcement (warrant) application, then he have leave to file and serve written submissions in relation to the costs issue, including but not limited to a schedule specifying the costs sought, by no later than the close of registry on 12 February 2021.

4.By the close of registry on 26 February 2021, the [wife] do file written submissions in response to the costs of the enforcement (warrant) proceedings, failing which the [husband] have leave to proceed with said costs application on an undefended basis.

5.By the close of registry on 12 March 2021, the [husband] have leave to file and serve written submissions in reply in relation to the enforcement (warrant) costs issue, on the basis that the Honourable Chief Judge Sutherland will issue reasons and orders in relation to all costs issues from chambers without the necessity for any further attendance by the parties.

7The husband e-lodged written submissions in relation to the enforcement (warrant) costs issue on 12 February 2021 at 4.11pm (AWST), being 11 minutes after the registry closed.[3] Accordingly, the husband did not comply with paragraph 3 of my orders dated 22 January 2021. The husband did not address the issue of late filing in his written submissions, nor did he make a specific application for an extension of time. In those circumstances, the wife was entitled to rely on my orders dated 22 January 2021 and assume that she was no longer at risk for costs in relation to the enforcement (warrant) proceedings. In that regard, I observe that the wife did not file any responsive written submissions. In light of the above, it would be procedurally unfair to wife to proceed to determine the husband’s costs application for the enforcement (warrant) proceedings. I intend to dismiss that application.

[3] The husband also filed further written submissions on 16 February 2021, where he advised the Court that his submissions filed on 12 February 2021 had miscalculated costs, and the correct amount was $1,798.50.

8Accordingly, I will only deal with the husband’s costs application insofar as it relates to costs claimed in respect of the enforcement (sole trustee) proceedings.

BRIEF BACKGROUND

9The parties participated in a two day trial before me in October 2019 about financial matters arising following the breakdown of their marriage. I published my reasons for decision on 15 November 2019 (the “November 2019 Reasons”)[4] and made final orders pursuant to those reasons on 4 December 2019 (the “Final Orders”). I found that the parties had property interests totalling $585,147,[5] and that those interests should be divided as to 60 percent to the wife, and 40 per cent to the husband.[6] The major asset owned by the parties was the former matrimonial home (the “[Town A Property]”).

[4] Chester and Chester [2019] FCWA 242.

[5] Ibid, [40].

[6] Ibid, [63].

10The wife conceded that she would not be able to retain the Town A Property and I was satisfied that it should be sold and the net proceeds divided between the parties.[7] Having regard to the other property that the parties would receive pursuant to the Final Orders and assuming that the Town A Property sold for $435,000 (gross), I estimated that the wife would receive approximately $338,000 from the sale, whilst the husband would receive approximately $62,000 (so as to achieve an overall division of the parties’ property on a 60 / 40 per cent basis in the wife’s favour).[8]

[7] Ibid, [63] and [64].

[8] Ibid, [64].

11The Final Orders dealt with the sale of the Town A Property in the following way:

1.Within 60 days of these orders being made, the parties do all acts and things and sign all documents necessary to jointly list for sale the property located [in Town A] (“the [Town A Property]”) upon such terms and conditions as the parties jointly agree, including but not limited to the completion of any reasonable improvements and/or repairs required to the [Town A Property] to render it ready for sale; and failing agreement, the parties have liberty to apply to the court in relation thereto.

2.Within the next 7 days, the parties do all necessary acts and things and sign all necessary documents to appoint [Ms A] to be the selling agent for the [Town A Property].

3.The initial listing price for the [Town A Property] be such amount as the parties agree in writing and failing agreement by the parties, by no later than 5:00pm on 18 December 2019, then the initial listing price be such amount as is recommended in writing by the selling agent, [Ms A].

4.The Respondent, [MS CHESTER], do co‑operate with the selling agent to facilitate the sale of the [Town A Property], including making the property available for inspection by the selling agent and potential buyers at all reasonable times.

5.The Applicant, [MR CHESTER], do meet the costs of any reasonable improvements and/or repairs required to the [Town A Property] to render it ready for sale on the basis that the Applicant be entitled to a reimbursement of all such costs from the sale proceeds.

6.Upon settlement of the [Town A Property], the net proceeds of sale be disbursed as follows:

a)in payment of the costs of sale, including agents’ commission;

b)in adjustment of the rates and taxes in relation to the property, including payment of any arrears;

c)in reimbursement to the Applicant of the costs of any reasonable improvements and/or repairs required to the property pursuant to paragraph 1 of these orders;

d)in payment of the balance remaining, so as to effect an 60 per cent division of the property of the parties to the Respondent and a 40 per cent division of the property of the parties to the Applicant, having regard to the value of the items of property to be retained by each party as set out in paragraph 66 of the reasons for judgment; and

e)from the Respondent’s share of the proceeds to be received by her pursuant to the immediately preceding sub‑paragraph, the Respondent do discharge the debt owing by her to Legal Aid Western Australia, secured by caveat against the title to the [Town A Property].

12In the months following the making of Final Orders the husband alleged that the wife effectively sabotaged the sales process by (and I summarise): (1) failing to confirm to the real estate agent that the Final Orders provided for the agent to set the listing price in default of the parties agreeing same, with the effect that the listing price was not set; (2) refusing access to the real estate agent, including for the purpose of taking photographs; (3) not permitting a “for sale sign” to be erected outside the property; and (4) refusing access to tradespeople engaged by the husband to effect the necessary repairs / works in order for the property to be sold. The wife denied those allegations.

13For her part, the wife complained that the repairs arranged by the husband were not sufficient and that proper payment arrangements had not been made with the relevant tradespeople. The wife was concerned to ensure that the property only be given a listing price and advertised on the market after repairs had been completed, with a view to achieving the best possible sale price.

14Ultimately, the husband filed a Form 2 Application in a Case on 10 September 2020, seeking orders (in summary) that: (1) he be appointed sole trustee for the sale of the Town A Property; (2) the wife give vacant possession of the property within 14 days; (3) the husband be granted sole occupation of the property for the purposes of arranging the sale; and (4) costs.

15The wife filed her Form 2A Response on 25 September 2020, seeking orders (in summary) that: (1) the husband make payment in respect of a specified quote for repair works; (2) the husband make payment of up to $10,000 for the wife’s removalist costs, to be reimbursed from the proceeds of sale of the Town A Property; and (3) the listing price for the Town A Property be determined upon the recommendation of the appointed real estate agent after the reasonable repairs and maintenance had been completed.

16At a directions hearing on 29 September 2020, I made procedural orders for the parties to file and serve further affidavit material in support of their respective positions. I otherwise listed the enforcement proceedings to a trial before me on 10 November 2020. At that trial, the husband was represented by counsel, and the wife was self‑represented.

17At the trial, the husband presented two witnesses: Ms A, the real estate agent jointly appointed by the parties to sell the Town A Property in accordance with the Final Orders; and [Mr B], a maintenance worker contracted by the husband to effect certain repairs to the Town A Property. The wife cross-examined both of those witnesses. Before the husband entered the witness box, I asked the wife to identify the issues upon which she would cross-examine the husband. The exchange that then ensued ultimately led to the parties compromising the proceedings, and I made the following orders by consent (in summary):

a)That within 7 days the husband pay to the wife the sum of $7,500 by way of a contribution to her reasonable removal costs, and on the basis that such sum be reimbursed to the husband from the wife’s share of the proceeds from the sale of the [Town A Property].

b)That by no later than 5.00pm 21 days following the hearing, the wife was to vacate the [Town A Property] and deliver up all keys and other access devices / codes to the real estate agent, and thereafter the husband to have exclusive occupation of the property for the purposes of arranging its sale.

c)The husband be appointed sole trustee for the sale of the [Town A Property] including making all necessary arrangements to effect the completion of the improvements and/or repairs to the property, and liaise with the real estate agent conducting the sale, save that the parties would remain joint trustees in respect of the following two matters: (1) making any counter offer in response to an offer received for the [Town A Property]; and (2) accepting any offer received for the [Town A Property].

d)The orders specified a list of the reasonable improvements and/or repairs required to render the [Town A Property] ready for sale, so as to avoid any further dispute about what was required by paragraph 1 of the Final Orders (dated 4 December 2019).

18As the parties resolved the enforcement (sole trustee) proceedings by consent, there was no need for me to make findings about contested matters of fact. Further, I note the proceedings were resolved before the wife was cross-examined. What this means is that to the extent the parties’ costs submissions relied on contested matters of fact, I am not able to have regard to those matters. Instead, I have only had regard facts as found in my November 2019 reasons, or that were otherwise agreed or uncontroversial.

LEGAL PRINCIPALS

19Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to s 117(2), each party to proceedings is to bear his or her own costs. Section 117(2) provides that if the court is of the opinion there are circumstances that justify so doing, the court may make such orders as to costs as it considers just.[9] Subsection (2A) provides that in considering what order (if any) should be made, the court must 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.

[9] Subject to subs 117(2A), (4), (4A) and (5) of the Act and in accordance with any relevant rules.

20I now turn to a consideration of the relevant factors pursuant to s 117(2A).

The financial circumstances of each of the parties to the proceedings

21Neither party filed an updated financial statement for the purpose of the costs proceedings. The wife did, however, depose (in her affidavit filed on 18 January 2021) that her sole income was the Centrelink jobseeker payment, which had recently been reduced.[10] The wife also deposed that [a family member passed away in late 2020], and that she was the executor of [their] estate. There was no evidence as to what, if any, inheritance the wife stood to receive.

[10] Wife’s affidavit filed 18 January 2021, [20].

22In her written submissions, the wife stated that “throughout the proceedings” she had only been able to represent herself with the assistance of either Legal Aid or the [Community Legal Centre] “due to a lack of access to funds”. That assertion was at odds with the finding in my November 2019 Reasons, to the effect that the wife had engaged private (paid) solicitors to act on her behalf at various times throughout the proceedings.[11] I also observe that the wife engaged a private law firm to prepare her Form 2A Response and written costs submissions filed on 1 February 2021.

[11] Chester and Chester [2019] FCWA 242, [50].

23In my November 2019 Reasons, I found that:

a)The parties’ property totalled $585,147. I was satisfied the parties’ property should be divided as to 60 per cent to the wife, and 40 percent to the husband. On that basis, I calculated that the wife would receive approximately $338,000 from the sale of the [Town A Property], whereas the husband would receive approximately $62,000, having regard to the other property that each of them would retain (including the husband retaining his superannuation entitlements of $102,747).

b)The husband was employed as a tradesman and was able to earn a modest income of between $50,000 and $60,000 per annum, and I accepted his evidence that he was likely to retire in the next five or so years. As for the wife, I found that she had a very limited capacity for gainful employment, and that she was largely dependent on Centrelink entitlements and a very modest income she was able to generate from her hobby business.

24I observe that the amount that each party will receive from the sale of the Town A Property is likely to be modestly lower than the values specified at paragraph 23(a) above, noting that the husband is entitled to be reimbursed for the cost of repairs (the scope of which were specified in the consent orders dated 10 November 2020) before the sale proceeds are disbursed to the parties.

25Whilst the wife stands to receive a substantial payment from the sale of the Town A Property, I also take into account that she will be required to meet the following liabilities from her share:

a)$2,201, being a debt owed by the wife to Legal Aid WA;[12]

b)$17,392, being a debt owed by the wife to her father;[13]

c)$467, being a debt owed by the wife to her [adult] son, Child A;[14]

d)$20,000, being a costs order I made against the wife on 4 December 2019, in respect of the substantive proceedings.[15]

[12] Ibid, [40], Table Item 21, and [67].

[13] Ibid, [40], Table Item 25, and [67]. Also, it was not in dispute between the parties that the wife’s father died in [late] 2020.

[14] Ibid, [40], Table Item 26, and [67].

[15] Orders dated 4 December 2019, [9].

26If successful, the husband sought that any costs order be paid from the wife’s share of the Town A Property sale proceeds. Notwithstanding the other obligations the wife must meet from that source, I am satisfied that she has the capacity to meet a costs order.

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

27Neither party was in receipt of legal aid for the purposes of the enforcement (sole trustee) proceedings.

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; and whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court

28Given the overlapping submissions made by the parties, I consider these two factors together. Whilst the husband submitted that these factors weighed heavily in his favour, I am not satisfied that is the case.

29In terms of the conduct of the enforcement (sole trustee) proceedings, the husband’s complaint appeared to centre on the wife’s failure to respond to two letters sent in July 2020 and September 2020. In my view, those letters are more properly dealt with under the consideration of “offers”, and I do so later in these Reasons.

30Otherwise, the complaints raised by the parties were focussed on each other’s asserted non-compliance with the Final Orders. Paragraph 1 of the Final Orders provided for the Town A Property to be sold:

…upon such terms and conditions as the parties jointly agree, including but not limited to the completion of any reasonable improvements and/or repairs required to the [Town A Property] to render it ready for sale; and failing agreement, the parties have liberty to apply to the court in relation thereto.

31The parties clearly were unable to reach agreement in relation to a number of important matters, and the matter came back to Court as contemplated. Given the enforcement (sole trustee) proceedings were ultimately resolved by consent, I was not required to make any findings in relation to the conduct of the parties, including: (1) the husband’s allegation that the wife sabotaged the sale process; or (2) the wife’s allegation that the husband failed to make proper arrangements for the repairs needed to ready the property for sale. It was not in dispute that restrictions imposed by the Western Australian government during the period March – May 2020 in response to the COVID-19 pandemic delayed the sale process, through no fault of either party.

32Although the husband sought to rely on the evidence of Ms A and Mr B[16] in making submissions about the wife’s conduct, I am not satisfied that it is appropriate to do so. Although Ms A and Mr B were cross-examined at the hearing on 10 November 2020, the wife was not. Accordingly, the version of events as deposed to by Ms A and Mr B were not put to the wife and, in those circumstances, I consider it would be unfair to draw inferences or make findings based upon the evidence of those witnesses alone.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

[16] The husband asserted that the evidence of Ms A and Mr B was not successfully challenged under cross-examination at the hearing on 10 November 2020.

33The parties appeared to proceed on the basis that this consideration permitted an inquiry into whether a party had been “wholly successful”, or otherwise a comparison of the parties’ relative success. As the Full Court observed in Anison & Anison (2019) FLC 93-908 (at [37]), this consideration “refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed.” That is not the case in this matter. As the parties resolved the enforcement (sole trustee) proceedings by consent, this consideration is not relevant to my determination.

34I do, however, have regard to the parties’ arguments as to their relative success in the proceedings later in these Reasons, under the final consideration – “such other matters the court considers relevant”.

Whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer

35The husband’s solicitors wrote two letters to the wife, the first on 22 July 2020[17] and the second on 17 September 2020.[18] Both letters set out with precision the steps that the husband required the wife to take, so as to avoid the need for the husband to commence or continue enforcement proceedings. For example, in the letter dated 22 July 2020, the husband’s solicitors requested the wife attend to the following matters:

1.Contact the real estate agent to arrange for her to attend the property and take internal photographs and provide proof of same;

2.Authorise the real estate agent to erect a for sale sign on the verge of your property;

3.Make clear to the real estate agent that you accept that Court Order 3 deems her responsible for assigning the listing price immediately;

4. Provide times in the next 2 weeks in which the electrician, handy person and plumber can attend the property to conduct the repairs needed for sale; and

5.Make an undertaking that you will do all things necessary to effect sale including signing the sale documents.

[17] Affidavit of [the husband’s solicitor] filed 8 December 2020, pages 14 and 15.

[18] Affidavit of [the husband’s solicitor] filed 8 December 2020, pages 18 and 19.

36The letter went on to state that if an application was necessary, then the husband would seek that the wife pay his costs.

37The wife complained that she did not receive the letter.[19] Given the wife was not cross-examined about the matter, I am unable to make any finding as to veracity of her complaint. In any event, the husband instructed his solicitors to send a further letter to the wife dated 17 September 2020, wherein he repeated the requests made in the letter dated 22 July 2020, as set out above. The letter of 17 September 2020 went on to state that if the wife could “show evidence between now and the [directions] hearing on 29 September 2020 of attending to these matters then [the husband would] consider vacating [that hearing] by consent”. There was no evidence before me that the wife responded to the husband’s letter of 17 September 2020 in any meaningful or constructive way.

[19] Affidavit of [the wife’s solicitor] filed 8 December 2020, annexure [XXX]:001, page 7, paragraph [14].

38I am satisfied that the letter of 17 September 2020 (which enclosed the earlier letter of 22 July 2020) amounted to an offer to compromise the enforcement (sole trustee) proceedings. I am further satisfied that had the wife properly engaged with the husband’s solicitors and set about attending to the steps mentioned in the letter, further litigation may well have been avoided. I am satisfied that this consideration militates in favour of an award of costs to the husband, but only as and from 17 September 2020.

Such other matters as the court considers relevant

39As noted above, both parties made submissions about the relative success of their applications.

40Although the husband asserted that he was “wholly successful”,[20] I do not agree for the following reasons: Firstly, the enforcement (sole trustee) proceedings were resolved by consent. Secondly, the sole trustee order sought by the husband was unconditional, whereas the order made by consent reserved to the husband and wife joint decision making in relation to the acceptance of offers and the making of any counter offers. Thirdly the husband consented to an order that he contribute to the wife’s removalist costs, a matter which the wife raised in her Form 2A Response filed on 25 September 2020. Fourthly the consent orders included a list of improvements and/or repairs to be completed to the Town A Property. Although the wife did not seek a specific order compelling the husband to arrange / pay for those improvements and repairs, she certainly described them in detail in her affidavit.[21] A considerable proportion of the works described by the wife ultimately found their way into the consent orders.

[20] Although, the husband acknowledged that there was a possible “caveat” to that submission: that the “Court allowed for the Respondent to be involved in the sale process on specified terms” – see husband’s written submissions dated 8 December 2020, as attached to the affidavit of [the wife’s solicitor] filed 8 December 2020, page 9, paragraph [36]. With respect, the statement that the Court “allowed” the wife to “be involved” in the sale process is a mischaracterisation of the outcome of the hearing on 10 November 2020, noting that the parties resolved the proceedings by consent.

[21] Wife’s affidavit filed 25 September 2020, [10] – [51].

41In my view, both parties can claim a measure of success.

42There are no other matters that I consider relevant.

CONCLUSIONS

43The discretion to award costs is a “broad” one, and the various enumerated factors are not to be read in any restrictive way.[22] Any one of the factors may be the sole foundation for an order for costs.[23] Nevertheless, the matters enumerated “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[24] It is unnecessary to spell out detailed reasons for decisions in costs matters. An exercise of discretion to order costs will be upheld if it appears to the appellate court that there are reasons upon which the trial judge or magistrate could rely.[25]

[22] Collins & Collins (1985) FLC 91-603.

[23] Fitzgerald v Fish (2005) 33 Fam LR 123.

[24] I and I (No 2) (1995) FLC 92-625, 82,277.

[25] B & B [2015] FCWA 65; Greedy and Greedy (1982) FLC 91-250; Luadaka v Luadaka (1998) FLC 92-830.

44On balance, I am satisfied that there are circumstances which justify the making of an order for costs in favour of the husband. Those circumstances include: (1) my finding that the wife has the capacity to meet a costs order from the proceeds she will receive from the sale of the Town A Property; and (2) the wife’s failure to respond in any meaningful or constructive way to the husband’s solicitor’s letter dated 17 September 2020. In my view, had the wife properly engaged with the requests made in that letter, the enforcement (sole trustee) proceedings and any subsequent costs application may well have been resolved prior to the hearings on 29 September 2020 or 10 November 2020.

45In terms of quantum, I am satisfied that it is appropriate that I only take into account the husband’s costs incurred as and from 17 September 2020. As identified at paragraph 2 above, the costs claimed by the husband were on a solicitor-client basis and, generally speaking, the hourly charge-out rates were marginally higher than the rate allowed at scale. Accordingly, I am not satisfied that the wife should meet the entirety of the costs claimed by the husband. Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) permits the court make an order that a party is entitled to costs of a specific amount. I intend to proceed on this basis, rather than putting the parties to the further expense of a taxation process. Having carefully considered the husband’s itemised costs, I consider that the amount of $2,500 is just.

ORDERS

46I intend to make the following orders:

1.The wife do pay the husband’s costs of the enforcement proceedings, fixed in the sum of $2,500, and the settlement agent conducting the settlement of the sale of the property referred to in paragraph 1 of Orders dated 4 December 2019 to be authorised to automatically deduct such sum from the wife’s entitlements under paragraph 6(d) of the Orders dated 4 December 2019 and pay such sum to the husband.

2.All extant applications and responses are otherwise dismissed.

This anonymised version of the judgment has been amended in parts to correct minor errors of grammar and spelling without affecting the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

13 APRIL 2021