Denning and Denning (No 4)

[2011] FamCA 283

FAMILY COURT OF AUSTRALIA

DENNING & DENNING (No 4) [2011] FamCA 283

FAMILY LAW – COSTS - Circumstances justifying order - Where circumstances not sufficient to  attract the award of indemnity costs -  Where costs in excess of party and party costs appropriate – Where costs calculated on a solicitor and client basis per r 19.18

Family Law Act 1975 (Cth), ss 117(2A), 117AB
Family Law Rules 2004 (Cth), r 19.18

Colgate-Palmolive Co v Cussons Pty Ltd (1993)118 ALR 248; [1993] 46 FCR 225, applied
D & D (Costs) (No. 2) (2010) FLC 93-435, cited
Davida & Davida (Costs) [2011] FamCAFC 61, cited
Fennessy v Gregorian (2009) FLC 93-399; [2009] FamCAFC 44, applied
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202, applied
Limousin v Limousin (2007) 38 Fam LR 478; [2007] FamCA 1178, cited
Ragata Developments Pty Limited v Westpac Banking Corporation, Federal Court of Australia, 5 March 1993, unreported, cited
Stephens & Stephens & Anor(Enforcement) (Costs) [2010] FamCAFC 172, applied
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681, cited

APPLICANT: Mr Denning

RESPONDENT: Ms Denning

INTERVENOR: B Pty Ltd

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 29 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 18 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr McConchie

SOLICITOR FOR THE RESPONDENT: F Butera & Co

COUNSEL FOR THE INTERVENOR: Mr Crozier-Durham RFD

SOLICITOR FOR THE INTERVENOR: Mason Sier Turnbull

ORDERS

IT IS ORDERED:

1. THAT the evidence of the wife’s solicitor Mr Ferdinando Butera as to service of the wife’s Application in a Case, filed 1 April 2011, and supporting documents upon the husband be transcribed and placed upon the Court file.

2. THAT the husband pay to the solicitors for the wife within sixty (60) days costs assessed on a solicitor and client basis in the sum of $75,000 and in default of such payment interest then be paid on all monies outstanding at the rate prescribed in Rule 17.03 in the Family Law Rules 2004 (Cth) and be calculated quarterly in arrears.

3. THAT there be no costs order of, or incidental to, the hearing on Monday 18 April 2011.

4. THAT otherwise all extant applications including the oral application of the intervenor for costs of the hearing on Monday 18 April 2011 be dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel for each of wife and intervenor.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

Mr Denning

Applicant

And

Ms Denning

Respondent

And

B Pty Ltd

Intervenor

REASONS FOR JUDGMENT

1. On 3 February 2011 I concluded a four day defended property and financial hearing. I delivered judgment and pronounced final orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 8 March 2011. No appeal has been lodged and the time for any appeal to be brought has now elapsed.

2. Pursuant to paragraph 11 of the orders of 8 March 2011 I had directed that the costs of each of the husband and the wife, as against each other, be reserved pending any application for assessment and payment of costs which was required to be made pursuant to written application within 28 days.

3. On 1 April 2011 the wife’s solicitors filed an Application in a Case and sought orders for the husband to pay the wife’s legal costs and disbursements on an indemnity basis.  That Application was supported by an affidavit of the wife’s instructing solicitor, Mr Ferdinando Butera, sworn and filed 1 April 2011. His affidavit deposed that the quantum of costs and disbursements charged to the wife were $93,526.10.

4. The affidavit of Mr Butera itemised of all counsel’s fees and other fees and outgoings charged by the forensic accountant, Mr I.  The fees included other out of pocket expenses, the cost of medical reports obtained, and the solicitor’s costs charged by both the wife’s former and present solicitors.

5. A written submission was prepared by the wife’s solicitors and provided to the Court in support of the orders sought for payment of legal costs and disbursements on an indemnity basis.

6. There was no appearance by the husband at this hearing.  He was called out of Court and was not present in the court building. He had filed no response to the orders sought.

7. The intervenor, B Pty Ltd, was represented by Mr Crozier-Durham of counsel.  The intervenor filed no response or affidavits but presented written submissions to the Court during the hearing on the costs sought.  The intervenor further sought that the wife’s Application in a Case, filed 1 April 2011, be dismissed.  On instructions Mr Crozier-Durham also sought a costs order against both the husband and the wife for the costs incurred by his instructing solicitor and his brief fee in the appearance in this hearing.

8. Pursuant to paragraph 11 of the defended hearing orders of 8 March 2011 only the costs of the husband and the wife as against each other were reserved for further hearing.  No objection was taken by or on behalf of the wife to the submissions made at the hearing by the intervenor and on balance I have determined to grant leave to the intervenor (if it be required) to seek orders as were outlined to the Court in the hearing.

9. Firstly I dealt with the issue of service by the wife’s solicitors of the Application and affidavit upon the husband.  Mr Butera was called as a witness and gave evidence in the proceedings.  He deposed to serving the husband with all required documents by post to the husband’s registered address for service and additionally by email to the husband’s designated email address.  Evidence of that service is now before the Court as exhibit “W2”. 

10. Additionally, Mr Butera deposed to serving upon the husband by email the written submissions of the wife in support of the Application for costs.  That document was served on 14 April 2011 and is evidenced by exhibit “W1”.

11. I accept that the husband was served both by post and email with all proper documents and that he knew or should have known of the proceedings in Court on 18 April 2011.  In any event the husband was most certainly aware of paragraph 11 of my earlier defended orders and therefore of the very real likelihood of costs being a continuing issue before the Court.

12. As to the defended orders of 8 March 2011 it is important to focus upon the orders contained in paragraph 1(b) and paragraph 2.

13. Pursuant to order 1(b) the division of 25 per cent of the monies in the Westpac Term Deposit was ordered to be paid to the intervenor as a reduction in the quantum of the judgment debt and legal costs that were then owing to them by the husband.  The wife’s solicitors do not in any way seek by their present application to vary or challenge that order and the wife’s counsel advised the Court that all of those monies will forthwith be paid to the intervenor pursuant to that order.

14. It was further provided in paragraph 2 of the defended orders that the wife pay to the husband a sum of $8,576 pursuant to earlier cost orders of this Court.  Again no challenge or stay was lodged against those orders and it was again confirmed in Court by counsel for the wife that those monies would be paid from her 75 per cent share of the Westpac Term Deposit monies and be paid to the intervenor.

15. The wife’s claim for costs was primarily founded upon s 117AB of the Act though in submissions the wife’s counsel broadened the legislative base upon which orders were sought to include generally all of the provisions of s 117 of the Act.

16. The affidavit of the wife’s solicitor highlighted those various paragraphs of my earlier reasons for judgment in the defended hearing that identified the actions of the husband that were found to be false, misleading and/or fraudulent.  These are identified in paragraph 17 of that affidavit.

17. Otherwise the wife’s evidence focused upon the enormous work, discovery and investigation that was required on her behalf by her lawyers and the forensic accountant to unravel the property and financial affairs of the husband and associated entities.

18. The wife’s evidence identified actual costs and disbursements incurred by her totalling $93,526.  I observe that some of the fees for counsel are in excess of the sum set out in the Family Law Schedule of Fees (Schedule 3) but I appreciate that three different counsel appeared from time to time in the proceedings and there was a voluminous bundle of documents and affidavits to be read and prepared.

19. Nevertheless there is reason for the Court to have concern with the quantum of fees charged by various counsel to the wife, most certainly on 14 April 2009, 5 March 2010 and 21 December 2009.  I have not allowed those fees as charged and they will be reduced in my orders.

20. As the trial judge I have a unique understanding of the volume of documents that confronted the lawyers and forensic accountant. Whilst the report and evidence of the forensic accountant was somewhat inconclusive and could not answer the obvious questions as to the specific quantum and whereabouts of funds I nevertheless accept that he diligently inspected all of the documents supplied by the husband and sought continuously other documents that were required. While substantial I nevertheless accept that the fees and disbursements of the forensic accountant are generally reasonable in the particular circumstances of this case.

21. From all that I have seen and observed throughout all of the proceedings, including the various mentions and case management hearings and the final hearing, I most certainly conclude that the fees charged by the wife’s present solicitor and his disbursements are very reasonable, if indeed not modest and that is probably explained in paragraphs 6 and 7 of his affidavit.

22. Counsel for the intervenor wholly opposed the wife’s costs application and sought by oral application that it be dismissed. No issue however is taken with any particular item charged or disbursement incurred and rather it is said on behalf of the intervenor that each of the parties to the proceedings, the husband and the wife, should pay their own costs as is primarily provided for in s 117(1) of the Act. It was argued that there is no circumstance in this case which could be seen as just for there to be a departure from that primary position and thus it was said that the wife should not succeed in any costs application as against the husband.

23. Separately the intervenor sought payment of its own costs, both as to instructing solicitor (who was not present in Court) and counsel. I do not regard it just to make any such order and I propose to make no costs orders of, or incidental to the hearing on 18 April 2011 and I decline to otherwise reserve those costs. 

24. I have hereunder set out the general cost principles provided for in the Act and otherwise further considered the particular provisions of s 117AB. Nevertheless and in the context of the written submissions of the intervenor I record that I have carefully read those submissions, particularly insofar as they detailed the intervenor’s approach to s 117(2A)(a), (c) and (e) of the Act. I do not accept those various submissions made on behalf of the intervenor.

25. The power of a Court to make an order for costs is contained within s 117 of the Act. Subparagraph (1) thereof provides that each party to proceedings shall bear his or her own costs.

26. That principle is, however, subject to the discretion afforded to the trial judge by subparagraph (2) where it is stated that (in summary):

    If, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in so doing, the Court may, subject to the further sub-sections herein and the applicable Rules of Court, make such order as to costs… whether by way of interlocutory order or otherwise, as the Court considers just.

27. The matters relevant to determining what order, if any, should be made for costs are identified in s 117(2A) which states that the Court shall have regard to (in summary):

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of legal aid assistance;

    (c)the conduct of the parties to the proceedings in relation to such proceedings and including, without limiting the generality thereof, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, 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.

28. The various factors identified in subparagraphs (b), (d) and (f) are of no relevance in the facts of this case. I have however carefully assessed the evidence relevant to each of the other factors, primarily the financial circumstances of the parties and the conduct of each of them in these proceedings pursuant to subsections (a) and (c).

29. As to the financial circumstances of each of the husband and wife I have carefully read and heard evidence upon all of the matters of relevance to this topic.  The Westpac Term Deposit is to be divided 75 per cent to the wife and 25 per cent to the husband, but with his monies to be paid to the intervenor.  Otherwise both parties have substantial financial liabilities and commitments as a result of liabilities and expenses. I have made detailed orders identifying the financial liability which each hold in this regard.

30. The husband has a very substantial liability to the intervenor which is only reduced by orders made, to the benefit of the intervenor in orders 1(b) and 2 of 8 March 2011. I have however made findings in the defended hearing about the husband’s likely superannuation entitlements, and I note that it is stressed by counsel for the wife the husband’s potential income and earnings as a result of his employment.

31. I have carefully balanced all of the financial circumstances in determining a just order and in considering whether there should be a departure from the primary obligation of each of the parties to pay his or her own costs.

32. In my opinion the most important of the factors relevant to costs is the conduct of the husband throughout the marriage in property and financial ventures, and generally in relation to his truthfulness and willingness to produce accurate, relevant information and documents and comply with the whole of the discovery process in view of the voluminous affidavits and exhibits which were presented to the Court and confronted the wife and her legal and financial advisors. 

33. I do not repeat many of the findings that I made throughout my reasons for judgment properly balanced against the submissions of Mr Crozier-Durham referring in particular to paragraphs 356, 85, 260, 328, 112, 366 to 371, 138, 350, 307 to 308 and 372 of that judgment. 

34. I have re-read the judgment and have carefully reflected upon all of my findings, the conduct of the proceedings and the husband’s presentation of his case to the Court. All matters considered I am of the opinion that the general conduct of the husband, the documents and evidence he presented to the Court and the issues which arose on investigation and in preparation for hearing, and my findings in the trial, all properly justify the exercise of discretion of an award of costs in favour of the wife.

35. However, neither party was wholly unsuccessful in the proceedings and I am acutely aware of the orders I pronounced. I am not otherwise assisted by subparagraph (e) in determining a just and appropriate order.

36. Very much the focus of the wife’s application for costs was directed to s 117AB which provides for costs to be paid where there are false allegations or statements made. That section applies where a Court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings and stipulates that the Court must order that party to pay some or all of the costs of the other party to the proceedings.

37. Again I have regard to my comprehensive findings upon the husband’s evidence and his creation of false documents to support the various commercial transactions throughout the marriage.

38. I conclude that the provision and effect of s 117AB is relevant to this costs application and that it supports my various findings of the relevance of matters pursuant to s 117(2A).

39. I conclude that it is just to pronounce a costs order in favour of the wife to be paid by the husband and I find that there are circumstances that most certainly justify such a finding.

40. I conclude that there is no basis to found any costs action of, and related to, the day of this hearing in favour of the intervenor and against either of the husband or wife and I dismiss that application. 

41. I pause only to observe that, in the defended hearing, the husband sought a costs order against the wife founded upon s 117AB of the Act and that I dealt with his application and its dismissal in paragraphs 336 to 341 (inclusive) in those substantial reasons for judgment.

42. I now turn to consider the basis upon which such costs should be assessed and paid in view of the wife’s application for indemnity costs.

43. The Court has jurisdiction, in its discretion, to pronounce an order for costs on an indemnity basis. The purpose of an award of indemnity costs is to more fully, or even wholly, repay to a party all, or at least the majority of their legal costs and disbursements, charges and taxes, incurred in the proceedings.

44. The category of cases in which an award of indemnity costs may be appropriate are not closed and in Yunghanns v Yunghanns (2000) FLC 93-029, the Full Court (per Lindenmayer, Holden JJ, Mullane J dissenting) said (at paragraph 31):

    It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.

45. The Full Court has further considered indemnity costs in Limousin v Limousin [2007] FamCA 1178, and in particular paragraphs 41 to 49 (inclusive) thereof and subsequently in Fennessy v Gregorian (2009) FLC 93-399 at paragraphs 53 to 73 (inclusive) thereof. I have read and considered each of these decisions of the Full Court and the other cases identified in the wife’s written submissions. In particular it is of real assistance in this case to have regard to paragraphs 62 to 64 (inclusive) of the Full Court’s reasons for judgment in Fennessy v Gregorian (supra) where they observed that:

    …Whilst contributing to the dismissal of his appeal, and justifying the making of an order for costs, we do not consider the father’s conduct of the proceedings in this Court to be “special or unusual” or of such an “exceptional” kind as to justify the awarding of indemnity costs. Nor in our view does the father’s conduct constitute “extraordinary conduct” sufficient to justify the making of an order for indemnity costs (see Yunghanns (supra)).

    It remains however to consider whether it would be appropriate in the circumstances to make an order for costs on a lawyer and client basis.

    As is generally known, parties to litigation frequently, and reasonably, incur costs in excess of those which would be covered by an award of party and party costs. The evidence suggests that has been the case in this appeal. In the circumstances it would be regrettable if the mother’s legal advisors were to be limited to party and party costs. Rather than awarding party and party costs the court may order that a party is entitled to costs as assessed on a lawyer and client basis (Rule 19.18(1)(b)).

1. The principle underlining an award of indemnity costs is that there exists exceptional or other very clear and significant circumstances so as to persuade the Court to depart from the usual award of costs on a party and party basis.  Those principles were classically summarised by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993)118 ALR 248 at 256 where it was said (in summary) that:

   a.   The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party / party basis;

   b.   This has been the settled practice for centuries in England.  It is a practice which is entrenched in Australia.  Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it.

   c.    In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party / party basis.  The circumstances of the case must be such as to warrant the court in departing from the usual course.

2. Sheppard J continued, at 257, and observed some of the circumstances which may warrant the exercise of the discretion to award indemnity costs and they included false and irrelevant allegations of fraud, misconduct that causes a loss of time to the court and other parties, where proceedings were commenced or continued for an ulterior motive, the undue prolongation of a case or wilful disregard of known facts and clearly established law.

3. In Ragata Developments Pty Limited v Westpac Banking Corporation (Federal Court of Australia, 5 March 1993, unreported) Davis J stated (at paragraphs 7 to 8) that:

   An award of costs on an indemnity basis may be made only in a special case, where the circumstances justify departure from the ordinary principle. The circumstances must be such as to justify an award indemnifying the successful party in respect of all of the costs incurred, save only as to those costs which are unreasonable in amount.

   The very nature of the award of costs on an indemnity basis gives a guide to the type of case in which such an award is appropriate. Thus, indemnity costs may be awarded where unsuccessful proceedings have been brought and prosecuted, not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose.

4. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202, Woodward J stated (at paragraph 21):

   I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, 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 or the clearly established law.

5. In Stephens & Stephens & Anor(Enforcement) (Costs) [2010] FamCAFC 172 the Full Court at paragraphs 72 and 73 observed that:

   The Family Court has jurisdiction to make orders for indemnity costs:  McAlpin and McAlpin (1993) FLC 92-411 per Full Court (Nicholson CJ and Maxwell J, Baker J dissenting); Kohan and Kohan (1993) FLC 92-340 per Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman (1997) FLC 92-784 per Holden J; Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, Mullane J dissenting) and Limousin v Limousin (Costs) (2007) 38 Fam LR 478 per Full Court (Kay, Coleman and Boland JJ).

   An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For  discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256- 257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].

6. Thereafter, and at paragraphs 118 and 119 the Full Court examined the conduct of the husband and, of significance, determined that it did not warrant an order for costs to be assessed on an indemnity basis.  The Full Court there said:

   Notwithstanding our general agreement with the submissions on behalf of the Wife, including that the proceedings were for enforcement, the disbursement of the amount of approximately $1.3 million, and other matters, we are not persuaded that the presumption in favour of party and party costs does not prevail. The Husband’s behaviour may in some respects fall within the description identified by Gummow J in Botany Municipal Council v Secretary, Department of Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415, as explained by Lindgren J in NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) at [54], as “ethically or morally delinquent”. However, as Lindgren J made clear at [56]: “The conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as litigant” (emphasis in original). Lindgren J then gave an example in the same paragraph of a “proved case of fraud” and said that, in his opinion, “the presumption is that a costs order against the fraudulent party will be on the party and party basis”.

   In conclusion, we cannot be satisfied that the Husband’s appeal and his defence of the Wife’s cross-appeal was hopeless and did not give rise to any “arguable factual and legal questions”: NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) at [72] to [81]. Nor are we satisfied that the Husband’s conduct as litigant in the appeal proceedings before us would justify a special order for costs. However, this finding does not preclude the Wife raising issues about the Husband’s conduct in the costs proceedings before Strickland J and Coleman J.

7. In Davida & Davida (Costs) [2011] FamCAFC 61, Finn J, with O’Ryan and Ainsley-Wallace JJ agreeing, noted at paragraphs 16 to 17 the earlier observations of the Court in D & D (Costs) (No. 2) (2010) FLC 93-435 (at paragraphs 26 to 29) that addressed a number of the authorities cited in Stephens & Stephens:

   Finally, I turn to that aspect of the husband’s application which sought that any order for costs should be on an indemnity basis. As presently advised, the most recent consideration of the question of indemnity costs is to be found in a decision of the Full Court reported as D & D Costs (No. 2) (2010) FLC 93-435. In that decision, the Full Court reviewed extensively earlier authorities, including decisions to which we have been referred today or have discussed with Counsel today, including Limousin & Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.

   It emerges from the discussion by the Full Court in the D & D (Costs) that there still needs to be exceptional circumstances to justify an order for indemnity costs in this jurisdiction. In my view, there are no such exceptional circumstances in this case.

8. Pursuant to r 19.18(1)(a) to (d) of the Family Law Rules 2004 (Cth) (“the Rules”) the Court has the discretion to make an order for costs of a specific amount, to be assessed on a particular basis, including on a lawyer and client basis, to be calculated in accordance with a particular method stated in the orders or as assessed in accordance with Schedule 3. In making such an order the Court may have regard to the factors set out in r 19.18(3):

   (a)      the importance, complexity or difficulty of the issues;

   (b)      the reasonableness of each party’s behaviour in the case;

   (c)      the rates ordinarily payable to lawyers in comparable cases;

   (d)      whether a lawyer’s conduct has been improper or unreasonable;

   (e) the time properly spent on the case, or in complying with pre-action procedures; and

   (f)       expenses properly paid or payable.

9. I record that notwithstanding the Costs Agreement entered into by the wife with her solicitors, referred to in paragraph 7 of Mr Ferdinando Butera’s affidavit, I have made a general assessment and estimate of the costs of the wife based on all of the documents filed on her behalf and in view of submissions of the wife’s counsel to the Court which did not emphasis or refer in particular to that Costs Agreement. I note that pursuant to r 19.08(3) I was not provided with the specific terms of the Costs Agreement entered into by the wife other than that the hourly rate agreed was $220.00 inclusive of GST and a copy of the Agreement was not exhibited to Mr Butera’s affidavit.

10. I have carefully examined all of my earlier findings and the conduct of the husband relevant to an award of indemnity costs.  Based upon the decisions of the Full Court and in particular having regard to the recent decision of the Full Court in Stephens& Stephens I conclude that the conduct of the husband as a litigant in the proceedings as opposed to his dealings with financial organisations does not warrant full indemnity costs.

11. I conclude that it is appropriate to make an order for costs on a lawyer and client basis as was discussed in Fennessy v Gregorian (supra) and I have therefore fixed a specific amount of costs to be awarded to the wife and to be paid by the husband pursuant to r 19.18 based upon an assessment of the reasonableness of the legal costs and disbursements of the wife as presented to the Court.

12. I fix the sum of costs and disbursements to be paid by the husband to the wife’s solicitors in the sum of $75,000. I allow a period of sixty days for payment to be made and in default interest will then be due and payable upon all outstanding monies at the rate prescribed in r 17.03.

I certify that the preceding Fifty Seven
(57) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 29 April 2011

Associate: ……………………………………………………………

Date:  …………………………………………………………………