Cotter & Cotter
[2021] FedCFamC1F 27
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cotter & Cotter [2021] FedCFamC1F 27
File number(s): MLC 6305 of 2018 Judgment of: WILLIAMS J Date of judgment: 9 September 2021 Catchwords: FAMILY LAW – FINANCIAL – ENFORCEMENT
Application by the wife for enforcement of payment due to her pursuant to final property orders made by consent in February 2019 – Orders made in accordance with the wife’s application – Order made for the husband to pay the wife’s costs of and incidental to the enforcement application.Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Cases cited: Davis & Davis [2012] FMCAfam 1244
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
In the Marriage of McDonald (1976) FLC 90-047
In the Marriage of Molier & Van Wyk (1980) FLC 90-911
In the Marriage of Ravasini (1983) FLC 91-312
In the Marriage of Slapp (1989) FLC 92-022
Worth & Worth (No.2) [2019] FamCAFC 126
Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 2 September 2021 Place: Melbourne Counsel for the Applicant: Mr Strum QC Solicitor for the Applicant: Lexton Legal Counsel for the Respondent: Ms Paull Solicitor for the Respondent: Ascot Solicitors ORDERS
MLC 6305 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COTTER
Applicant
AND: MR COTTER
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
9 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The husband, personally and in his capacity as director of F Pty Ltd, forthwith do all acts and things and sign all documents necessary to cause the property situate at B Street, Suburb C in the State of Victoria (“B Street”) to be forthwith placed upon the market for sale pursuant to Order 9 of the Orders of this Honourable Court made 18 February 2019 (“the B Street sale”), by public auction, with:
(a)M Company to be the selling agent (“the selling agent”); and
(b)the wife to have the conduct of the B Street sale, as trustee for sale.
2.In the event the husband fails to sign any document(s) required to complete the B Street sale, pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar (or equivalent) of this Honourable Court be and is hereby authorised to sign document(s) to give effect to the B Street sale.
3.The husband provide the selling agent with access to B Street at all times as may be requested by the selling agent and provide the selling agent with all information and documentation requested, including but not limited to copies of current leases, tenancy agreements and like documents.
4.In the event the parties fail to reach agreement within 7 days of these Orders as to the conveyancing solicitor to be appointed for the B Street sale, the conveyancing solicitor be appointed by the President for the time being of the Law Institute of Victoria or his/her nominee, upon the wife's request.
5.Within 7 days of these Orders, the husband provide to the wife's legal representatives full disclosure in respect of the mortgage registered upon the Certificate of Title of the B Street property (dealing number ...) including but not limited to copies of account statements for the past 12 months and documentary verification of current balance.
6.Liberty be reserved to the wife to apply in writing upon short notice with respect to any asserted breach by the husband of Order 4.2 of the Orders made 18 February 2019.
7.Pending completion of the B Street sale:
(a)the husband, personally and in his capacity as director of F Pty Ltd, be and is hereby restrained from howsoever further encumbering the B Street property, including but not limited to:
(i)increasing or further drawing upon the existing encumbrance, dealing number ... (“the mortgage”);
(ii)registering any new loan/credit facility upon the title of and/or secured by the B Street property;
(iii)using the B Street property in any other way as security for any other loan/credit facility;
(b)the husband, personally and in his capacity as director of F Pty Ltd, be liable for and pay and continue to pay all instalments pursuant to the mortgage (including any arrears) and all rates, taxes and like apportionable outgoings of the B Street property as and when they fall due.
8.Upon completion of the B Street sale, the net sale proceeds be applied pursuant to Order 10 of the Orders made 18 February 2019, including as follows:
(a)first, to pay the costs of the sale including agent's fees, commissions and expenses, advertising costs and conveyancing costs;
(b)secondly, to discharge the mortgage encumbering the property (mortgage number ...);
(c)thirdly, to pay to the wife the sum of $3 million dollars in full satisfaction of the Second and Third payments, together with penalty interest thereon from 10 May 2021, at the rate prescribed by the Rules of this Honourable Court from time to time;
(d)fourthly, to pay in full and discharge the wife's taxation liability referred to at Order 22 of the Orders of 18 February 2019, together with any interest and penalties in relation thereto;
(e)fifthly, to pay to the wife her costs of and incidental to her Application in a Case filed 16 June 2021, pursuant to paragraph 11 hereof;
(f)sixthly, any balance then remaining to the husband.
9.The husband indemnify and keep indemnified the wife against any and all liability howsoever arising in relation to the B Street sale, including any and all capital gains taxation and income taxation liability.
10.Liberty be reserved to the wife to apply in writing upon short notice with respect to the sale of further property/properties in which the husband has an interest, directly or indirectly, in the event that the B Street sale does not fully satisfy all payments required pursuant to Order 10 of the Orders made 18 February 2019 and, in such event, the wife be at liberty to lodge a caveat on any further property to be sold.
11.The husband pay the wife's costs of and incidental to her Application in a Case filed 16 June 2021 on a party/party basis, including the hearings on 9 August 2021 and 2 September 2021 as agreed, and in default of agreement, to be taxed.
12.In the event the wife’s costs are agreed, the husband pay such costs within 14 days of agreement as to quantum, and if the costs are taxed, within 14 days of the fixing of the quantum of the costs.
13.Pursuant to Rule 12.28 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the court certifies that it was reasonable to engage a lawyer (including Queen’s Counsel and Senior Counsel) as counsel to attend for the wife on both 9 August 2021 and 2 September 2021.
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 Cotter & Cotter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
Introduction
The wife’s application for enforcement of final property orders made by consent on 18 February 2019 was listed in the Judicial Duty List on 9 August 2021. On that day, the husband sought an adjournment of the application to enable him to attempt to pay the wife the outstanding monies and if necessary, file responding material. The application was adjourned for further hearing on 2 September 2021.
The enforcement application was heard on 2 September 2021, by way of submissions from Counsel for both parties.
Background
On 18 February 2019, Justice Cronin, by consent, made final orders for property settlement between the husband and the wife. The orders were made as a result of extensive negotiations by the party’s respective lawyers, including two mediations. The husband was represented by Queen’s Counsel.
The orders provide for the husband to pay $8 million to the wife in three instalments:
(a)$5,000,000 on the settlement of sale of the parties former family home;
(b)a further sum of $1,500,000 on or before 15 months from the date of settlement of the former family home: and
(c)a final sum of $1,500,000 to be paid on or before 30 months from the date of settlement of the former family home.
In the event the husband defaulted in making any of the payments referred to in the preceding paragraph, then the whole of the amount became due and payable to the wife and the property situated at B Street, Suburb C (the B Street property) was to be sold upon terms to be agreed, to enable the outstanding payment to be made to the wife.
The registered proprietor of the B Street property is a company, F Pty Ltd, of which the husband is the company’s sole shareholder, director and secretary. The company is the trustee of the B Trust. The orders of 18 February 2019 restrain the husband, pending payment of all amounts due to the wife, from selling or encumbering the B Street property beyond a specified limit and from resigning any position as director or secretary of the trustee company.
Notation D of the February 2019 orders provides that the time periods contained within the orders is of the essence and that the wife has consented to the extended time frames within the orders on the understanding and agreement that the timeframes will be strictly adhered to and complied with.
The second payment of $1,500,000 was due on 10 May 2021. Annexure E to the wife’s affidavit of 11 June 2021 exhibits an email from the husband acknowledging the indebtedness and seeking more time to make the payment.
By letter dated 4 May 2021 the wife’s solicitors advised the husband’s solicitors that if payment was not made honourable for the due date, enforcement of the February 2019 orders would be commenced and that the wife would also seek indemnity costs of enforcement.
The husband failed to make the payment on 10 May 2021 and on 11 May 2021 the wife’s solicitors forwarded a letter to the husband’s solicitors seeking instructions to accept service of the enforcement application. On 11 May 2021, the wife’s solicitors were advised that the husband’s solicitors no longer acted on his behalf. On 12 May 2021, the wife’s solicitors wrote to the husband’s new solicitors enclosing previous correspondence forwarded to the husband’s former solicitors and advising that enforcement proceedings would be commenced seeking the full amount due, in the event the $1,500,000 was not paid by 5.00 pm on 9 June 2021.
On 10 June 2021, the husband’s solicitors wrote to the wife’s solicitors as follows:
We are instructed to inform you that our client will not be making the second payment and will not be confirming any real estate agents or conveyances for the sale of the B Street property.
On 16 June 2021, the wife filed an application for enforcement with a supporting affidavit which was served on the husband’s solicitors. On 16 June 2021, a Notice of Address for Service was filed on behalf of the husband.
The wife’s application for enforcement was listed in the Judicial Duty List on 9 August 2021.
On 9 August 2021, orders were made providing for the wife’s enforcement application to be adjourned to 2 September 2021 and that the husband pay the wife’s costs of that day, with the determination of quantum reserved to the adjourned date. Notation A of those orders provided as follows:
The matter has been adjourned to enable husband to pay all sums outstanding prior to the adjourned date without ordering the sale of the property. In the event he does not do so the husband is on notice that the court will make an order enforcing the order of 18 February 2019.
On 2 September 2021, the application proceeded before me electronically and commenced at 10.00 am. Notwithstanding that the wife’s Application in a Case for enforcement of orders was filed on 16 June 2021, the husband filed a Response and supporting affidavit on 31 August 2021. He also filed an affidavit at around 11.04 pm on 1 September 2021 and filed a further affidavit at 10.14 am on the morning of the hearing, which was subsequently emailed to my associate.
Proposals of the parties
The wife sought enforcement of the orders of 18 February 2019 and the default sale of the B Street property. She also sought for her costs to be paid by the husband, on an indemnity basis, if she were successful in her application.
The husband sought the default sale of a property situated at H Street Suburb C, in lieu of the sale of the B Street property, and otherwise that the wife receive the monies owing to her pursuant to the February 2019 orders. The husband sought that there should be no order for costs, despite the orders of 9 August 2021 providing that he pay the wife’s costs of 9 August 2021.
Documents relied upon by the parties
The wife relied upon the following documents:
(a)orders of Justice Cronin dated 18 February 2019;
(b)Application in a Case filed 16 June 2021;
(c)affidavits of the wife filed 11 June 202 and 1 September 2021;
(d)minute of proposed orders dated 2 September 2021.
The husband relied upon the following documents:
(a)Response filed 31 August 2021;
(b)affidavits of the husband filed 31 August 2021 and 1 September 2021;
(c)affidavit of Mr G (accountant) filed 2 September 2021;
(d)minute of proposed orders dated 2 September 2021.
The wife’s submissions
Senior Counsel for the wife submitted that:
(a)the orders proposed by the wife were in accordance with the default procedure set out in the orders of February 2019;
(b)by reason of the husband’s default, the second and third payments due to the wife were now both due;
(c)order 9 of the February 2019 orders specifically provides for the sale of B Street, in the event of a default in payment;
(d)order 10 of the February 2019 orders provides for the application of the B Street proceeds of sale, without any reference to the payment of any capital gains tax arising from the sale of the property;
(e)any capital gains tax is the responsibility of the husband, pursuant to the husband’s indemnities in orders 21 and 22 of the February 2019 orders;
(f)counsel for the husband conceded that the court had no power to vary the February 2019 orders, as sought by her;
(g)even if the court had the power to vary the orders, the court should not exercise its discretion because the orders are clear and unequivocal and speak for themselves;
(h)any capital gains tax liability is a matter for the husband and not the wife;
(i)even if there were a shortfall on the sale proceeds of B Street, order 11 of the February 2019 orders enable the wife to make further application for the sale of other properties to pay any shortfall;
(j)the husband has failed to provide any objective evidence of his assertions as to current value of the two properties or the mortgages and why there would necessarily be a shortfall upon the sale of the B Street property;
(k)at the time of the February 2019 orders the B Street property was valued at $6.6 million and the H Street property at $6.65 million and the husband is presently asserting, without proper valuation evidence, that H Street has doubled in value whereas B Street has remained the same or possibly decreased in value;
(l)the registered proprietor of the H Street property is K Pty Ltd as trustee for the K Trust;
(m)at page 18 of his Financial Statement filed 18 June 2018 the husband deposes that the trust is a fixed unit trust not controlled by him and that his superannuation fund, L Super Fund owns 50% of the units in the trust;
(n)other than a statement by his counsel from the bar table, there was no evidence that the husband would be entitled to receive the full net proceeds of sale of the H Street property;
(o)in his Financial Statement at page 16, the husband opposed that the value of his interest in the K Trust was $1.284 million and that the property had been provided as a guarantee to CBA, for which the husband is 100% liable;
(p)the husband has not provided any information about the CBA guarantee including the quantum thereof;
(q)despite being served with documents on 11 June 2021, the husband did not file documents in a timely manner and did not propose the sale of the H Street property in lieu of the B Street property, until an email forwarded directly to the wife in the afternoon of 30 August 2021;
(r)subsequent to the February 2019 orders, the husband has purchased a number of properties including a $4.13 million property which he purchased in April 2021;
(s)the husband has also deposed to buying out the interest of his business partner in the H Street property in 2020 and obtaining funds from a bank to enable him to do so.
The husband submissions
Counsel for the husband submitted:
(a)the husband had used his best endeavours to meet his obligations pursuant to the February 2019 orders;
(b)it was not a case where he was seeking to avoid his responsibility to pay the wife;
(c)he was merely seeking to substitute the sale of the B Street property with the H Street property;
(d)the current evidence of value of the H Street property is the sale authority which the husband has recently executed and which is annexed to his affidavit, which indicates that the property is valued between $11,750,000 and $12,750,000;
(e)the H Street property has increased in value because of a corresponding increase in rental of commercial premises;
(f)a sale of the H Street property would enable the husband to pay the wife her entitlements, enable the husband to pay any capital gains tax arising from the sale of property and enable him to meet his obligations pursuant to the Binding Financial Agreement the parties entered into contemporaneously with the orders;
(g)if the B Street property were sold, there would be insufficient proceeds of sale to pay capital gains tax and he would need to sell another property;
(h)her instructions were that the mortgage on the H Street property was approximately $3,000,000, although she conceded there was no evidence;
(i)the letter from the husband’s accountant which is annexed to his affidavit of 1 September 2021, states that the net sale proceeds of B Street would be insufficient to discharge the husband’s obligations under the orders, and in fact depending on the sale price, the deficiency could be up to $1 million, and the court should take that evidence into account in determining the application;
(j)the husband had received advice from his accountant that because of his age he was able to access his superannuation fund, although she conceded there was no objective evidence to that submission.
Submissions were also made on behalf of the husband by his counsel, that his business had been adversely affected by the COVID-19 pandemic. That submission does not sit well with the acquisition of properties which are referred to in paragraph 27 the wife’s affidavit of 11 June 2021, which he acquired between February 2020 and April 2021.
In particular, the purchase of an unencumbered property in February 2020 for $2 million and a further purchase in April 2021 for $4.13 million. Even if the husband required the assistance of a mortgage to purchase the latter of the properties, he obviously would have had to satisfy a bank of his capacity to service such a mortgage at that time.
Discussion
At the commencement of the proceedings I invited Counsel for the husband to identify a source of power, if any, for me to vary the final property orders which were made by consent in February 2019, because the Response filed on behalf the husband did not seek any orders pursuant to s 79A of the Act, seeking to vary or set aside the February 2019 orders. That invitation enabled her to make submissions in accordance with authorities such as Davis & Davis [2012] FMCAfam 1244, In the Marriage of Ravasini (1983) FLC 91-312, In the Marriage of McDonald (1976) FLC 90-047, In the Marriage of Slapp (1989) FLC 92-022 and In the Marriage of Molier & Van Wyk (1980) FLC 90-911, as to whether such a variation would be mechanical or would substantially affect the rights of the parties and consequently whether the court has power to vary orders.
Counsel for the husband conceded that there was no power to make orders varying the final property orders, as sought by the husband. She addressed her submissions to the matters referred to in the previous paragraph.
In the context of that concession, it is not possible to contemplate any variation to the final property orders made in February 2019. However, even if that were not the case I would not be persuaded to exercise my discretion by the submissions of the husband’s counsel and make orders as sought by her.
The evidence relied upon by the husband fell far short of evidence which would have been required to enable a court to exercise a discretion to vary final orders, if such a variation was mechanical, as opposed to substantially affecting the rights of the parties.
At the very least there should have been current valuations of both properties, documentary evidence of the amount of the mortgages and any other encumbrances secured against the properties, to enable the court to ascertain the respective equity in the B Street and H Street properties, proper evidence about the husband’s entitlement to access the proceeds of sale of the H Street property to which the superannuation fund is entitled and evidence about the CBA guarantee provided by the husband. Order 4 of the 18 February 2019 orders restrain the husband from further encumbering the B Street property, obviously to ensure that the equity in the property was preserved to substantiate a further payment to the wife, if the husband defaulted in his obligations to pay her the sums due.
Despite the wife’s enforcement application being filed on 16 June 2021, and therefore affording the husband more than sufficient time to present proper evidence to the court, he did not do so.
The letter from the accountant, which was Annexure C-1 to the husband’s affidavit filed at 11.04 pm on 1 September 2021, referred to the proceeds of sale of B Street property being insufficient to discharge the husband’s obligations to the wife, in the context of capital gains tax liability also being deducted from the proceeds of sale. One of the obvious problems with that evidence is that the orders of February 2019 do not provide for capital gains tax liabilities to be discharged from the proceeds of sale, prior to the wife accessing her entitlement to further payments. Indeed the orders are quite to the contrary, as referred to earlier in these reasons.
In the circumstances, I accept and agree with the submissions of the wife’s Senior Counsel. The wife is entitled to enforce the orders of February 2019 which are clear and specific as to her entitlements in the event of the husband’s default in payment of the sums due to her. There cannot possibly be any ambiguity about the terms of the orders and their implementation, which enables the wife to sell the B Street property to secure the payment due to her, and in the event there are insufficient proceeds of sale of the B Street property, to enable her to apply to the court to sell another property.
I intend to make orders in accordance with the minute of orders proposed by the wife, which is in accordance with the enforcement process set out in the February 2019 orders.
Costs
On 9 August 2021, I made an order for the husband to pay the wife’s costs of that day with the quantum to be reserved to the adjourned date.
The wife sought orders that the husband pay her costs of the enforcement application, including hearings on both 9 August 2021 and 2 September 2021 on an indemnity basis fixed at $48,626.87.
She seeks indemnity costs because the husband by his conduct in breaching orders of the court has put her to the trouble of taking steps which she would not have to of been taking, in order to secure the benefit of the orders which were made in February 2019. The husband’s conduct, including the correspondence from his solicitors on 10 June 2021 demonstrates that his disregard for the orders is flagrant and without remorse, and that he is indifferent to the detriment and loss he has occasioned to the wife. Senior Counsel for the wife relied upon a schedule of the wife’s costs incurred on an indemnity basis, which were calculated at $48,626.87. Senior Counsel for the wife did not provide a calculation of her costs incurred on a party/party basis.
Counsel for the husband submitted that there should not be any order for costs, notwithstanding the order made on 9 August 2021 to the contrary, because the husband was genuine in his desire to meet his obligations pursuant to the February 2019 orders, and that he was merely seeking to substitute the sale of the B Street property, with the sale of the H Street property.
Section 117(1) of the Family Law Act 1975 (“the Act”), states, subject to the provisions of s 117(2), that the general rule in proceedings in this court, is that each party to proceedings, shall each bear his or her own costs.
Section 117(2) of the Act provides that if the court considers there are circumstances which would warrant an order for costs, the court may make such order as it considers just.
Section 117(2A) of the Act provides, that in considering what order (if any) should be made for the payment of costs, the court shall have regard to the financial circumstances of each of the parties, whether any party is legally aided, the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court, whether any party has been wholly unsuccessful in the proceedings, whether either party has made an offer in writing to resolve the proceedings and any other matters the court considers relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that the relevant matters in s 117(2A) must be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.
It is evident from the particulars of the parties financial circumstances referred to earlier in these reasons, and in particular the husband’s recent purchase of properties and the historical value of both the B Street property and the H Street property, that both parties have significant capital resources at their disposal. Despite submissions from his counsel about the impact of the COVID-19 pandemic on the husband’s business, the husband clearly has the financial capacity to meet any order for costs which may be made.
As submitted by Senior Counsel for the wife, the application before the court is for enforcement of orders made by consent in February 2019, which has been necessitated by the husband’s failure to comply with those orders. It would not come as a surprise to the husband that he was required to make further payment to the wife in May 2021 of the amount specified in those orders. He has had three years notice of his impending obligation The husband did not demonstrate any remorse or contrition prior to his counsel doing so, during the hearings of the application, and that is evident from the letter of 10 June 2021 from the husband’s lawyers that he did not intend to pay the amount due to the wife.
There can be no doubt that the husband has been wholly unsuccessful in his application to the court, as set out in his response. There was no evidence of any meaningful offers made by the husband to resolve the proceedings, despite him being afforded the opportunity by the court to pay all outstanding monies to the wife, prior to the matter being listed for further hearing on 2 September 2021.
I consider there are sufficient circumstances which justify the making of an order for costs in favour of the wife, of and incidental to the enforcement application. What remains to be decided is whether there should be an order for party/party costs or indemnity costs.
The principles as to the basis on which indemnity costs should be ordered is set out by the Full Court in Worth & Worth (No.2) [2019] FamCAFC 126, as follows:
9.The authorities are clear, that for the usual basis to be departed from, exceptional circumstances need to be demonstrated (see, eg, Limousin & Limousin (Costs) (2007) 38 FamLR 478). The categories of such circumstances are not closed (Yunghanns & Yunghanns (2000) FLC 93-029), but some examples are provided in the oft-quoted decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive Co”), and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from his Honour’s decision the following:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer to compromise.
(Citations omitted)
Senior Counsel for the wife sought indemnity costs on the basis that the husband should have known that there was no prospect of success of the relief sought by him in his Response filed 31 August 2021 and that his application was in effect doomed to failure. By continuing with his application, it must be presumed that it was commenced and/or continued with a wilful disregard for known facts and resulted in a prolongation of the hearing, particularly in the context of the appropriate concession as to the court’s power.
Counsel for the husband submitted that the husband had attempted to negotiate a payment to the wife in May 2021, which was referred to in the wife’s material. He had submitted a payment option on 20 May 2021, to which the wife did not respond. Despite the letter of 10 June 2021 the husband attempted to negotiate a resolution of his obligations pursuant to the February 2019 orders. It was not a case where the husband was avoiding his obligations to pay and the husband had taken significant steps to meet those obligations, including placing the H Street property on the market for sale.
Having considered the submissions of both Senior Counsel for the wife and Counsel for the husband, I am not persuaded that an order for indemnity costs should be made. I therefore intend to make an order for the husband to pay the wife’s party/party costs, as agreed within 14 days, and failing agreement, to be taxed.
I also intend to certify for Senior Counsel for the hearings on 9 August 2021 and 2 September 2021 as there were no submissions to the contrary and given the complexity of the matter including the detailed orders of February 2019.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 9 September 2021
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