Edelson & Wadding (No 2)
[2024] FedCFamC2F 1669
•25 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Edelson & Wadding (No 2) [2024] FedCFamC2F 1669
File number: MLC 2712 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 25 November 2024 Catchwords: FAMILY LAW – Costs – enforcement application – where some but not all orders made – costs power engaged – whether circumstances justify indemnity costs – whether conduct occurring after the enforcement application relevant to costs assessment – where costs are compensatory and not punitive – fixed costs order made Legislation: Family Law Act 1975 (Cth), ss 4 and 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Sch 1 and Sch 3; rr 12.13, 12.17, 12.18
Cases cited: Browne v Green (2002) FLC 93-115; [2002] FamCA 791
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Hopkins & Elliot (No 4) [2023] FedCFamC1F 532
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Roydon & Roydon [2024] FedCFamC1A 105
Stephens v Stephens and Anor (2010) 44 Fam LR 117; [2010] FamCAFC 172
Warbrick and Warbrick (No. 2) (2021) FLC 94-030; [2021] FedCAFC 101
Edelson & Wadding [2024] FedCFamC2F 1113
Worth & Worth (No. 2) (2019) FLC 93-910; [2019] FamCAFC 126
Division: Division 2 Family Law Number of paragraphs: 61 Date of last submissions: 18 November 2024 Date of hearing: 18 November 2024 Place: Melbourne Counsel for the Applicant: A Metherell Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the Respondent: R Teicher Solicitor for the Respondent: Davies Moloney ORDERS
MLC 2712 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EDELSON
Applicant
AND: MR WADDING
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of and incidental to her enforcement application filed on 19 April 2024 fixed in the sum of $29,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
On 15 August 2024, I made orders (Enforcement Orders) and published reasons in a proceeding brought by the applicant wife to enforce final property orders made by consent (Final Orders): Edelson & Wadding [2024] FedCFamC2F 1113 (Enforcement Judgment). The Enforcement Judgment did not deal with costs but made provision for a party wishing to make such application to do so in the proper form and within 28 days.
On 11 September 2024, the wife filed an application in a proceeding seeking a costs order against the husband relating to the enforcement application and the costs associated with pressing this current application. On 11 November 2024, the wife filed an amended application which in addition to maintaining her application for costs sought an order that the respondent husband do all acts and things and sign all documents as required to withdraw the caveat lodged on the former matrimonial home, D Street, Suburb F, Victoria (Property).
The wife seeks costs on an indemnity basis in the amount of $45,884.80. Alternatively, she seeks costs pursuant to the scale of costs set out in Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (Rules) in the amount of $24,274.79. As a further alternative, the wife seeks costs in such amount as the Court considers appropriate.
In support of her application the wife relies on her affidavit sworn on 11 September 2024 (Edelson affidavit), an affidavit of lawyer Jessica Coles-Black affirmed on 11 November 2024 (Coles-Black affidavit) and written submissions filed on 12 November 2024. On 18 November 2024, the wife filed a costs notice that identified legal costs from 22 February 2024 up to the costs hearing in the amount of $49,818.25.
The husband opposes the application for costs (on any basis) and resists the order for the removal of the caveat. In support of his position, he relies on written submissions filed on 16 November 2024.
APPLICATION FOR COSTS
Applicable principles
The principles relevant to cost orders are settled. In general, parties to a proceeding under the Act should bear their own costs: s 117(1) of the Family Law Act 1975 (Cth) (Act). However, power is conferred on the Court to make an order as to costs if it is of the opinion that it is just, and that there are circumstances to justify it doing so: s117(2). This power is subject to a number of provisions, including s 117(2A) and the Rules. The discretionary power is wide, and it is not the case that the power to award costs may only be exercised in a clear case or that exceptional circumstances must be shown.
In s 117(2A) of the Act, a number of factors are listed which the Court must consider in deciding what, and if, an order for costs should be made.
Further, the Rules confer power when making an order for costs, to either: specify the amount of costs; assess the costs on a particular basis; set the method by which such costs are to be calculated; or assess the costs in accordance with Schedule 3 (Scale of costs in family law and child support matters): r 12.17(1). In making an order under this sub-rule, the Court may consider a range of matters not all of which find their analogue in s 117(2A). Amongst these are: (i) the importance, complexity or difficulty of the issues; (ii) the rates ordinarily payable to lawyers in comparable proceedings; and (iii) whether expenses (paid or payable) are fair, reasonable and proportionate: r 12.17(3). In addition, r 12.18 circumscribes the maximum amount of party and party costs that are recoverable which, in the case of costs that are referable to fees, is limited to an amount calculated in accordance with Schedules 2 and 3 of the Rules.
Financial circumstances of each party – s 117(2A)(a)
The requirement to consider the parties’ financial circumstances draws attention to the need to address whether there is a disparity in the parties’ financial positions. However, the Court is authorised to adopt a broad-brush approach. The underlying objective is to enable the Court to have some appreciation of the relative financial position of the parties.[1]
[1] Brown v Green (2002) FLC 93-115.
The wife submits that there is a significant disparity between the parties’ income earning capacity and financial position in circumstances where she is employed at L Company as a sales representative, and the husband is a professional at M Company.
The wife submits that the disparity is reflected in the final property orders that required the husband to pay her the amount of $2.9 million.
The husband instead submits that the wife has overstated any financial disparity between the parties in circumstance where she is currently receiving $11,000 tax free per month from the husband (as part of the Final Orders), in addition to her income and will receive interest on the settlement sum once it is paid. The husband characterises the wife’s financial position as certain whereas his is contingent as to how exactly the Final Orders are given effect, including how much money is realised through the sale of the Property.
Legal aid – s 117(2A)(b)
Although this consideration was not addressed, there has never been any suggestion that either party is or has been in receipt of assistance by way of legal aid.
The conduct of the parties to the proceedings in relation to the proceedings – s 117(2A)(c)
An infinite array of circumstances may constitute conduct that warrants attention under s 117(2A)(c). However, inherent in the provision is that the conduct is in some way related to the conduct in the proceeding.
The wife submits that the husband’s persistent refusal to engage with or meet his obligations under the Final Orders is a matter that is relevant to this consideration. In particular, the wife identifies the husband’s failure to adhere to the payment date for “the payment” (as defined in the Final Orders), his failure to advise the wife whether he was able to make the payment and, upon default of payment, his failure to engage with the wife to facilitate a timely sale of the Property and/or to respond to the wife’s attempts to achieve this outcome.
The wife submits that it is also relevant that the husband evaded service of her application for enforcement, sent a disparaging email about the wife to her and the parties’ three children, and did not attend the enforcement hearing. The wife submits that the husband repeatedly snubs his nose at the authority of the Court, his obligations to the wife specifically, and his obligation to comply with Court orders generally.
The husband submits that the wife’s conduct in relation to the sale of the Property (following the making of the Enforcement Orders) is a matter that the Court can take into account under s 117(2A)(g) as will be shortly explained.
Compliance with orders – s 117(2A)(d)
The wife submits that it is significant in this case that her enforcement application was made as a response to the husband’s failure to comply with the Final Orders. In support of this submission, the wife refers to paragraph 54 of the Enforcement Judgment which involves a discussion of the necessity for the wife to be solely responsible for dealing with the selling agent.
The wife also calls in aid paragraph 74 of the Enforcement Judgment which describes the husband’s failure to attend to the parties’ taxation as a “serious matter”. The wife notes that enforcement orders were made as a result.
The wife submits that the failure to attend to taxation matters is evidence of the malicious intent and high-handed approach adopted by the husband, which is compounded by the fact that he is a professional at M Company.
The wife characterises the husband’s default, coupled with his “egregious conduct” as outstanding features that make her application for costs compelling. In doing so, the wife submits, by reference to Hopkins & Elliot (No 4) [2023] FedCFamC1F 532 at [7] that it is settled that no one factor has priority under s 117(2A) and any one factor (or factors) may make a costs order appropriate.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings – s 117(2A)(e)
The husband placed importance on this consideration. He submitted that because the wife had not enjoyed complete success and, as the corollary, he had not been wholly unsuccessful, there was no basis for a costs order in this case.
The husband took a quantitative approach as to how success should be evaluated. He noted that the wife had sought eleven orders in her amended enforcement application and submitted that the majority of these had been refused or had been made because they reflected a consent position of the parties. The husband submitted that in some cases – paragraph 9 of the Enforcement Orders being an example – the order made was essentially a restatement of the Final Orders and did not cause the Final Orders to operate any differently. The fact it was made could not be characterised as a success on the part of the wife.
The husband submitted that because the wife had not been wholly successful her application for costs involved “oppressive conduct” and had resulted in both of the parties incurring costs unnecessarily.
The wife acknowledged that she had not enjoyed complete success in the proceeding but submitted that this was not the test for an award of costs and the consideration was one of a number that the Court is entitled to take into account.
The wife submitted that the lens through which the husband evaluated the parties’ relative success ignored the reality that a number of matters about which agreement was ultimately achieved, would not have been “on the table” were it not for the fact that the wife had been forced to file an enforcement application.
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 – s 117(2A)(f)
The wife submits that the Court may take account under this consideration that she gave instructions to her lawyer to send an offer of settlement to the husband’s lawyer that the husband pay her costs associated with the enforcement application in the amount of $16,325.38, this reflecting an assessment based on the Court scale. The offer was sent on 20 August 2024. The husband did not accept the offer, and the wife submits that his refusal to do so has resulted in her incurring further costs associated with the filing of this costs application.
The husband submits that the wife has confused the type of offer of compromise that is relevant to this consideration. The offer to settle the application for costs is not an offer “to settle the proceedings” because the “proceedings” is the enforcement application. The wife did not make an offer of compromise in relation to the enforcement application and had she done so, its terms would have to have been more advantageous to the husband than the terms given effect by the Enforcement Orders.
Other matters as the court considers relevant – s 117(2A)(g)
The wife submits that it is relevant under this general consideration to take account of the husband’s continued efforts to impede the implementation of the Enforcement Orders, to disrupt the parties’ pathway to settlement and to harass the wife.
In this context the wife refers to the caveat lodged on the title to the Property by the husband on around 24 October 2024, which she discovered after the finalisation of the enforcement application.
The wife submits that the Court is entitled to exercise its discretion to make a costs order to send a message to the husband that behaviour of the kind referred to will not be tolerated. The wife notes that she is yet to receive payment pursuant to the Final Orders and there remain outstanding additional obligations on the husband that have not yet been discharged.
The wife submits that an order for costs would serve as a deterrent against future default conduct by the husband and potentially circumvent the need for the wife to bring a further enforcement application.
The husband’s primary position is that conduct occurring after the enforcement application is not conduct that can relevantly inform the Court’s discretion to order costs.
If the husband is wrong on this point, he submits that it is appropriate to consider the conduct of the wife in negotiating the sale of the Property. The husband submits that the wife has not acted in good faith because she failed to instruct the agent to recommend such works as were necessary to achieve a maximum sale price, she acted hastily in agreeing to the sale at a reduced amount and she failed to ensure that the husband was kept informed as to negotiations.
CONSIDERATION
Should an order for costs be made?
As the matter constituted a “proceeding”[2] under the Act, there is no doubt that the power to award costs is controlled by s 117 of the Act. Accordingly, unless the Court is of the opinion that there are circumstances justifying the making of an order for costs, the power to award costs is not engaged. Once the Court forms the requisite opinion, that power is engaged. When the power is engaged, the general rule as expressed in s 117(1) must yield to the power conferred by s 117(2).[3] The power so conferred is to be applied, subject to the applicable rules of Court and the matters addressed by s 117(2A). The discretionary power so conferred is wide. It is not the case that the power to award costs may only be exercised in a clear case or that exceptional circumstances must be shown.[4]
[2] Family Law Act 1975 (Cth), s 4.
[3] Penfold v Penfold (1980) 144 CLR 311, 315.
[4] Mallett v Mallett (1984) 156 CLR 605, 631-632.
For the reasons below, I am of the opinion that the circumstances of this case justify that I consider whether an order for costs should be made.
These circumstances are principally the conduct of the husband in relation to the proceedings and the husband’s failure to comply with orders of the Court.
I should state at the outset that while I accept that there is financial disparity between the parties that reflects the greater capacity of the husband to generate income from his employment at M Company it is also the case that the disparity has been at least partly recognised and ameliorated by the Final Orders so that this consideration does not operate with much force in this case.
Instead, the conduct of the husband is a matter that lies at the heart of the enforcement application, and which is relevant to the question of costs.
In the Enforcement Judgment at paragraph 13, I set out in some detail the various examples of the husband’s conduct relied upon by the wife as justifying and explaining her decision to approach the Court for assistance in the enforcement of the Final Orders. While it is not necessary to repeat them here, it was this catalogue of acts and omissions that I found provided a proper basis to make an order that the wife be solely responsible for engaging and dealing with the selling agent to market and then obtain a sale of the Property.
In a related but distinct category, as far as the statutory costs provision is concerned, the conduct of the husband – especially the lack of responsiveness to communications from the wife (who prior to late February 2024 was self-represented) involved conduct that breached paragraph 6 of the Final Orders and was designed to stymie or at least protract the default sale of the Property.
The husband says, in his defence, that by the time the matter came before the Court for the hearing of the enforcement application, aspects of the default sale had been agreed. While this may be so, the chronology of events that preceded this agreement is telling. As was recorded (also at paragraph 13 of the Enforcement Judgment) the wife spent a period of approximately six weeks attempting to progress a default sale with the husband before finally taking on the expense of engaging lawyers and making the enforcement application on 19 April 2024. Some almost two months later, the matter came before Judicial Registrar McGee who noted, in orders made that day, that there was agreement as to the identity of the selling agent and (not surprisingly) that a sale of the Property was required to meet the payment to the wife. However, despite these limited concessions, the necessity for the Court’s intervention remained and some of the orders sought by the wife (especially around the sale of the Property) were subsequently made.
This brings me to the submission of the husband that because the wife did not enjoy complete (or even substantial) success on her enforcement application she is precluded from making an application for her costs. With respect, this approach involves a misapplication of ss 117(2) and 117(2A(e) of the Act.
It is settled (a matter raised in the wife’s submissions) that when considering what order (if any) should be made pursuant to s 117(2), the Court shall have regard to the matters listed in s 117(2A). However, no factor in this subsection prevails over any other and any one of the factors in s 117(2A) can justify an order for costs.[5] Here, on balance, I have found that the factors identified in subparagraphs (c) and (d) justify the making of a costs order.
[5] Fitzgerald v Fish and Anor [2005] FamCA 158, [41].
Further, while it might be tempting to extrapolate from the language of s 117(2A)(e) – whether any party to the proceedings has been wholly unsuccessful – that something less than the corollary, wholesale success, will disqualify a party from making a costs application, this is plainly not what was intended. Instead, the emphasis is on the position of the unsuccessful party and the quality or extent of that defeat. It says nothing about the position of the party who enjoyed relative success.
In any case, while I accept that the wife was unsuccessful in her application for a number of orders sought by her in her enforcement application (for reasons that I explained in the Enforcement Judgment), she succeeded in obtaining orders which gave her control over the principal default sale mechanism identified in the Final Orders.
I have considered but given no or little weight to the offer made by the wife to settle the costs application and the matters raised under the auspices of “other matters as the court considers relevant”. As to the former, I accept the husband’s submission that to be relevant under s 117(2A)(f), an offer in writing must be one to settle the substantive application and not the subsequent costs application. As far as “other matters” are concerned, the relevant conduct of the husband has been picked up and considered under subparagraph (c). Both parties take issue with the conduct of the other party following the entry of the Enforcement Orders. That conduct is the subject of the wife’s application for orders for the removal of a caveat lodged by the husband over the Property and the husband’s application in a proceeding that was accepted for filing on 18 November 2024 and which will be heard on 13 December 2024. While I accept that I can have regard to conduct that led up to and explained the necessity for the enforcement application it seems to me that to examine and have regard to conduct that occurred following the making of the Enforcement Orders would go further than is warranted.
In particular, where it is trite that an order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature,[6] conduct occurring following the costs “event” is of contextual significance only.
[6] Stephens v Stephens and Anor (2010) 44 Fam LR 117 at [67].
On what basis should the costs order be made?
As noted earlier, the wife’s primary position is that she be awarded costs on an indemnity basis in the amount of $45,883.80 comprising:
(a)Billed professional fees: $35,989.80 (inclusive of GST);
(b)Billed disbursements: $6,250 (inclusive of GST); and
(c)Unbilled disbursements: $3,645 (inclusive of GST).
In accordance with r 12.13(4) of the Rules, the wife annexed to her affidavit a retainer letter and Legal Services Agreement with Nicholes Family Lawyers dated 26 February 2024[7] and emails communicating a variation to the notification of costs dated 3 July 2024 and 23 July 2024.[8]
[7] Annexure MSE-1.
[8] Annexure MSE-2.
In addition to, or in repetition of, the matters identified earlier by reference to s 117(2A) of the Act, the wife submits that an order for indemnity costs is justified because the husband ought to have attended to his obligations under the Final Orders without the need for an enforcement application, especially where the Final Orders were made by consent and where the husband was represented by counsel who continues to represent him in this current round of litigation.
The wife submits it to be relevant to an award of indemnity costs that there is a serious disparity in the parties’ financial circumstances. The impact on the wife of the husband’s non-compliance with orders is that she is deprived of funds and financial independence and continues to accrue significant legal fees which eat away at her property settlement. The husband’s disregard for the Final Orders is further reinforced by the decision taken by him to lodge a caveat on the title to the Property. According to the wife, this act can be designed only to further frustrate its sale. The wife submits that it is necessary in this case to make an order that appropriately reflects the husband’s misconduct.
In Roydon & Roydon [2024] FedCFamC1A 105, a decision of Justice Riethmuller sitting in the appellate jurisdiction of Division 1, to which both parties referred, his Honour observed the following (at [104]-[107]):
104.The Full Court has repeatedly emphasised that an indemnity costs order should only made in “exceptional” cases: see Withers & Russell (No 2) [2022] FedCFamC1A 197 at [13]; Kohan & Kohan (1993) FLC 92-340; Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; Galbadon & Galbadon [2015] FamCAFC 59; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; and Badawi & Badawi (Costs) [2017] FamCAFC 196. Importantly, as identified in Worth & Worth (No. 2) (2019) FLC 93-910, some circumstances are not sufficient to justify indemnity costs:
10. The wife submitted that indemnity costs were warranted…because:
a) The wife ought not be “out of pocket”.
b) “…an award of costs against the Husband in a sum any less than the actual monetary cost to the Wife would work an extraordinary injustice”.
c) The property settlement order “is a once off opportunity for [the wife] to provide for her future and the future of two young and needy children”, and her entitlement should “not be depleted by having to pay any legal fees incurred in responding to this Appeal”
d) The “circumstances in this case, in addition to the extraordinary conduct of the Husband as a litigant”…justify not only that he pay costs, but that they be assessed on an indemnity basis.
11.We do not consider that any of those circumstances can be categorised as “exceptional circumstances” such as would warrant indemnity costs. For example, to say that the wife should not be “out of pocket” begs the question, as does the suggestion that an amount less than all of the actual costs incurred would work an injustice, and likewise the plea that the wife’s property settlement entitlement should not be depleted by having to pay any legal fees.
105.Examples of the nature of the conduct required to support an indemnity costs order are set out in the commonly quoted passage from Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 at 256 and 257:
24. …it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud…evidence of particular misconduct that causes loss of time to the court and to other parties…or in wilful disregard of known facts or clearly established law…the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…an imprudent refusal of an offer of compromise..
106.The matters identified by Sheppard J in Colgate Palmolive as justifying indemnity costs all involve significant misconduct in litigation, not simply a party litigating a marginal or speculative case.
107.The remarks of Sheppard J with respect to offers must be seen in context. The proceedings before Sheppard J concerned commercial litigation where, unlike family law proceedings, costs ordinarily follow the event. In family law cases, ordinarily there are no orders for costs. This practical difference between costs rules for commercial litigation compared to family litigation is particularly important when considering whether a failure to accept an offer is “imprudent”, and thereby justifying an indemnity costs order, rather than a situation where it was not reasonable to have rejected an offer (leading to a party and party costs order): Badawi & Badawi (Costs) [2017] FamCAFC 196 at [27]-[29]. As was said by Murphy J in Prantage & Prantage (2013) FLC 93-544 at [152]:
Indemnity costs are confined to “an exceedingly rare situation”…in jurisdictions where “the usual rule” is that a successful party receives an order for costs (i.e. “costs follow the event”). They might, then, be seen to be more so in this jurisdiction where the “usual rule” is that “each party…shall bear his or her own costs” (s 117(1)).
Roydon is a salutary reminder that something exceptional is required to justify an order that would provide a full indemnity to the party seeking compensation for his or her costs. Without in any way wishing to diminish the impact of the husband’s conduct on the prolongation of the proceeding and the ability of the wife to proceed in accordance with what she understood and reasonably anticipated to be a set of final orders, I am not persuaded that indemnity costs are justified in this case.
It is a feature common to most if not all enforcement applications that the responding party has engaged in conduct that involves a departure from the deal reflected in orders made by this Court. This might provide the justification for a costs order but something more is required to warrant an order for costs on an indemnity basis.
To a large extent, the wife identifies the “something more” by reference to conduct that is temporally disconnected to the enforcement application and its lead up and in pursuit of objectives that, as I have observed earlier, sit outside of the cost regime.
In the alternative to an indemnity costs order, the wife seeks an award of costs in the amount of $24,274.79 calculated pursuant to Schedule 1 of the Rules and identified as follows:
(a)Billed professional fees: $16,660.86 (inclusive of GST) in accordance with Item 15;
(b)Billed disbursements: $4,522.51 (inclusive of GST) in accordance with Items 11(a), 13(a), 13(b) and 14; and
(c)Unbilled disbursements: $3,091.43 (inclusive of GST) in accordance with Items 11(a), 13(b) and 14.
The husband is critical of the failure of the wife to provide a further breakdown of the schedule items and amounts identified and foreshadows an application for assessment if a costs order is made reflecting this methodology.
The wife submits that one way to resolve this impasse would be for the Court to fix costs in an amount that sits somewhere between the scale amount and the indemnity amount sought including because she submits that party/party costs are grossly inadequate in the circumstances of this case.
I propose to adopt the approach taken by the Full Court in Warbrick and Warbrick (No. 2) (2021) FLC 94-030 at [13] where the Full Court dealt with a similar situation where party/party costs were not properly quantified. The Full Court observed:
…We do not intend to permit the costs question to become, in effect, satellite litigation. It is appropriate that the wife’s costs are fixed and this issue is brought to a close.
Given the history of this proceeding and indeed its likely future trajectory, these observations apply here with equal force. Although there is some merit to the husband’s contention that the scale costs have not been fully particularised, I do not consider that the total amount sought offends the principle enshrined in rule 12.08 of the Rules that legal costs be fair, reasonable and proportionate. Indeed, having regard to the number of Court events associated with the enforcement application and the work, in fact, undertaken I am satisfied that the wife’s costs should be fixed in the amount of $29,000 and propose to make orders to that effect.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 25 November 2024
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