Ettridge and Somers (No 5)

[2019] FamCA 958

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 5) [2019] FamCA 958

FAMILY LAW – COSTS – where the applicant seeks costs on an indemnity basis from the respondent – where the applicant seeks payment be made directly from the respondent’s share of the proceeds of sale of the parties’ real property – where the respondent opposes that application – where the respondent’s conduct justifies an order as sought by the applicant – order that the respondent pay the applicant’s costs on an indemnity basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
I and I (1995)  FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Ms Ettridge

RESPONDENT: Mr Somers

FILE NUMBER: MLC 11262 of 2015

DATE DELIVERED: 12 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: Written Submissions In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Carew Counsel

THE RESPONDENT: In person

Orders

(1)That the respondent pay the applicant’s costs of and incidental to the Application in a Case filed 12 June 2019 calculated on an indemnity basis and fixed in the sum of $13,947 (“the payment”).

(2)That the payment be made to the applicant from the respondent’s entitlements to the proceeds of sale the property situate at and known as B Street, Suburb C.

(3)That all extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 17 July 2019 this matter came before me in the Judicial Duty List. On that day, I heard the respondent’s oral application for me to recuse myself as well as his Application in a Case filed 25 June 2019 seeking a stay of orders pending the outcome of an appeal against my orders and his application for leave to appeal a range of orders earlier made out of time.

2. On the same day, the applicant pressed paragraph 7 of her Application in a Case filed 12 June 2019, in which she sought a warrant for the possession of the former matrimonial home situate at B Street, Suburb C (“Suburb C property”). This part of her application had been adjourned on 18 June 2019 to a date to be fixed in the event the respondent failed to comply with orders requiring the respondent to provide to her vacant possession of the property.

3. At the conclusion of the hearing, I reserved judgment.

4. On 2 August 2019, I made orders dismissing all of the respondent’s applications before the Court. I also made an order as sought by the applicant and caused to issue a warrant for the respondent to provide vacant possession of the Suburb C property to the applicant.

5. Orders were also made providing for the filing of written submissions in relation to the applicant’s application for costs.

6. The applicant filed her submissions as to costs on 16 August 2019. The applicant seeks an order for costs on an indemnity basis in the sum of $9,247.50.  In addition, the applicant also seeks costs on an indemnity basis with respect to the hearing on 18 June 2019.  The costs sought in relation to that hearing is $9,974.00.  Hence, the applicant seeks indemnity costs in the sum of $19,248.50.

7. The respondent provided his response to the applicant’s submissions by way of e-mail to my Associate on 23 August 2019. The respondent is seeking that each party bear their own costs.

8. These are my Reasons for Judgment with respect to the applicant’s costs application.

Background

1. The de facto wife, Ms Ettridge, is the applicant in these proceedings. She is aged 52 and is currently unemployed.

2. The de facto husband, Mr Somers, is the respondent and is aged 55. The respondent owns his own business, however he has previously indicated to the Court that he is not currently working.

3. This matter has a long procedural history, which has been set out extensively in previous judgments that I have delivered in relation to the disputes between these parties. As a result, I will not traverse the procedural history in its entirety and have limited the background to that which is relevant to the applicant’s costs application.

4. Proceedings were initiated by the applicant in the Family Court of Australia on 1 December 2015, in which she sought final property orders. The respondent disputed the existence of a de facto relationship and therefore, the Court’s jurisdiction to entertain the applicant’s application for financial relief.  On 15 September 2017, Thornton J made a declaration as to the existence of a de facto relationship between the parties. The matter came before Cronin J for a final hearing in relation to the applicant’s application for final property orders and on 29 October 2018, his Honour made orders in relation to the parties’ property dispute (“the Final Orders”). In substance, those orders provided for the sale of the Suburb C property, and a division of the proceeds of sale.

5. Since the Final Orders, the applicant has brought four enforcement applications before the Court in order to effect the sale of the Suburb C property and obtain the fruits of the judgment.

6. On 18 June 2019, the applicant’s Application in Case filed 12 June 2019 came before me. On that day I made orders providing for the applicant to have sole conduct of the sale of the Suburb C property. The following orders were also made:-

   …

   (4)That forthwith the respondent do all such acts and things as may be required to facilitate inspection of the Suburb C property by any valuer acting on behalf of the purchaser’s lending institution within 48 hours of a written request to so inspect.

   (5)That the respondent vacate the Suburb C property within 21 days of the date of these orders and the applicant thereafter have sole use and occupation of the Suburb C property save that in the event of the respondent’s failure to comply with Order 4 hereof, the respondent vacate the Suburb C property within 7 days of the date nominated for inspection by the valuer.

   …

7. At paragraph 7 of the applicant’s Application in a Case filed 12 June 2019, she sought an order for a warrant for possession of the Suburb C property pursuant to r 20.54 of the Family Law Rules 2004 (Cth) (“the Rules”). On 18 June 2019 I declined to make that order due to the absence of an extant order requiring the respondent to provide vacant possession of the property. Instead, I made the following orders:-

   …

   (11)That paragraph 7 of the applicant’s Application in a Case filed 12 June 2019 be adjourned to a date to be fixed.

   (12)That the applicant have liberty to apply to have paragraph 7 of her Application in a Case filed 12 June 2019 listed on short notice upon the filing of an affidavit evidencing the respondent’s non-compliance with Order 5 hereof and notification of the filing of that affidavit to the Associate of the Honourable Justice Johns.

   …

8. The respondent did not comply with the orders made on 18 June 2019 requiring him to provide vacant possession of the Suburb C property to the applicant. As a result, on 15 July 2019 the applicant filed an affidavit seeking to press paragraph 7 of her Application in a Case filed 12 June 2019.

9. In addition, on 25 June 2019 the respondent filed an Application in a Case seeking a stay of the following orders:-

   ·    Orders made by Johns J on 18 June 2019.

   ·    All extant orders made by Cronin J on 29 October 2018, save for orders 12, 13(a), 13(b), 13(c), 13(d), 14 and 15.

   ·    Paragraph 1 of the orders made by Thornton J on 15 September 2017.

10. Both of those applications were listed before me for hearing on 17 July 2019. On the day of the hearing, the respondent pressed an oral application seeking that I recuse myself from hearing the proceedings. I dismissed that application and gave ex-tempore reasons for judgment that day.

11. The hearing continued and the two substantive applications were ventilated before the Court. At the conclusion of the hearing, I reserved my judgment.

12. On 2 August 2019 I made the following orders:-

    (1)The Marshal and all officers of the Australian Federal Police, for the purpose of giving effect to the Order of this Court made on 18 June 2019, requiring MR SOMERS to vacate the property situate at and known as B Street, Suburb C Victoria (“the property”) ARE DIRECTED with such assistance as they may require and if necessary by force to enter upon the property and cause MR SOMERS to vacate the property and give vacant possession of the land to MS ETTRIDGE.

    (2)That the Application in a Case filed 25 June 2019, Response to Application in a Case filed 15 July 2019, Application in a Case filed 12 June 2019 and Response to Application in a Case filed 14 June 2019 be otherwise dismissed.

    …

13. Additionally, orders were made for the filing of written submissions in relation to the applicant’s costs application, which provided as follows:-

    (3)That any application for costs arising out of these proceedings be by way of written submission filed as follows:-

    (a)within 14 days of the date of these orders the applicant file and serve written submissions in support of the application for costs;

    (b)within 7 days of the filing of submissions pursuant to sub-paragraph (a) hereof the respondent file and serve any submissions in response to the application for costs.

Documents relied upon

1. The applicant relies upon her costs submissions filed 28 June 2019 and 16 August 2019.  In addition, those submissions refer to and rely upon the following documents :-

   ·    Affidavit of the applicant filed 12 June 2019;

   ·    Costs Agreement and Disclosure Statement between the applicant and Carew Counsel dated 1 December 2015 annexed to the affidavit of Ms E filed 9 November 2018 ; and

   ·    Reasons for Judgment of Cronin J dated 22 March 2019.

2. The respondent relies upon his costs submissions e-mailed 23 August 2019.

Legal principles

1. The question of costs is governed by section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) which provides:-

   Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.

2. That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.

3. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.

4. Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2), the Court must have regard to the following:-

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

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

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

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

5. Costs are not awarded as punishment of the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.

6. The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).

7. The Rules provide that the court may make an order for costs on a number of different bases and Rule 19.18 sets out the method of calculation of costs, providing that:-

   (c)In making an order under subrule (1), the court may consider:

   (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.

The applicant’s application for costs

1. In support of her application for costs, the applicant principally relies upon the following considerations:-

   ·    The financial circumstances of the parties;

   ·    The conduct of the parties in relation to the proceedings;

   ·    Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   ·    Whether any party to the proceedings has been wholly unsuccessful; and

   ·    Any other matters the court considers relevant.

2. The respondent’s written submissions failed to directly address the criteria pursuant to section 117(2A) of the Act.

Section 117(2A)(a) The financial circumstances of the parties

1. It is submitted on behalf of the applicant that the only significant asset between the parties is the Suburb C property, which is registered in the sole name of the respondent.

2. The applicant relies upon her affidavit filed 17 June 2019, in which she deposes to her financial circumstances as follows:-

   ·    She is unemployed;

   ·    Her legal fees in relation to these proceedings amount to approximately $270,000; and

   ·    She has debts of approximately $145,000.

3. In his written submissions, the respondent submits that the “contents of the Affidavits submitted in the proceedings before Johns J are unsubstantiated and have no basis in fact”. Notwithstanding the broad assertions contained in that submission the respondent did not seek to directly challenge the applicant’s evidence as to her financial circumstances and made no submission as to his own financial circumstances in his written submissions.

4. Having regard to those matters, I am satisfied that the payment of the applicant’s legal costs has been a significant financial burden for her. Further, I am satisfied that the applicant is currently unemployed and has been awaiting the disbursement of her share of the sale proceeds from the Suburb C property since the Final Orders were made in October 2018.

5. In determining the question of costs, I have taken into account the parties’ financial circumstances generally.

Section 117(2A)(b) Whether either party is in receipt of legal aid

1. Neither of the parties are in receipt of legal aid.

Section 117(2A)(c) The conduct of the parties in relation to the proceedings

1. The applicant’s submissions relied heavily upon the conduct of the respondent in support of her application for costs. In particular, she relies upon the following matters:-

   ·    That she has had to file four separate enforcement applications in relation to the husband’s failure to comply with the Final Orders.  The application relevant to this costs application was the fourth occasion on which she had filed applications to enforce the Final Orders;

   ·    The respondent’s attitude notwithstanding the declaration and orders made by the Court, including that he still does not accept the parties were in a de facto relationship, he continues to assert the Suburb C property is his and the applicant has no claim to it, he does not agree to sell the property and that he should not have to comply with Court orders for its sale.

   ·    The respondent’s submissions at the hearing on 17 July 2019 were unnecessarily lengthy, argumentative, disrespectful and repetitive. This coupled with his lack of preparation prolonged the hearing and increased the costs incurred by the applicant.

2. The respondent submits that throughout the course of the proceedings the applicant has “engaged in vexatious behaviour inclusive of the contents of affidavit put before Justice Johns and heard on 18 June 2019 and 17 July 2019 respectively”. The respondent also alleges that the applicant seeks to frustrate the appeals process through non-compliance with the “uniform law” and the “Guidelines published by the Full Court of the Family court of Australia”.  Notwithstanding those bold assertions, the respondent does not particularise the conduct of the applicant said to be vexatious or non-compliant.

3. I accept the applicant’s contentions with respect to the respondent’s conduct at the hearing on 17 July 2019. The respondent was argumentative, raised his voice at times and his submissions were repetitive. Additionally, the respondent at times launched into protracted speeches, which included allegations of misconduct and bias by the Court, the applicant and the solicitors for the applicant. Similar allegations were also made in the respondent’s written submissions, in which he states “A gross miscarriage of Justice has occurred in these proceedings to date”.

4. In addition to the manner in which the respondent conducted himself at the hearing, the respondent failed to comply with Court orders of 18 June 2019 which required him to co-operate with the expert appointed to value the Suburb C property and to vacate that property.  As a result, the proceedings have been unduly prolonged.  Accordingly, I am satisfied that the conduct of the respondent in relation to the application filed 12 June 2019 and heard on 18 June 2019 and 17 July 2019, is a matter relevant to the question of the applicant’s costs application. 

Section 117(2A)(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. The applicant submits that the respondent’s failure to comply with orders of this Court is “blatant and persistent” and it was that failure that necessitated her filing her fourth enforcement application on 12 June 2019.

2. The respondent did not address in his submissions his failure to comply with orders of this Court.

3. The applicant submits and I accept that the original application filed on 12 June 2019 was necessitated as a result of the respondent’s failure to comply with the Final Orders regarding the sale of the Suburb C property.  It was submitted by the applicant and I accept that the respondent did not co-operate with the selling agent and valuer of the Suburb C property. As a result of that application, I appointed the applicant as trustee to have the sole conduct of the sale of the Suburb C property.

4. Due to the failure of the respondent to co-operate with the valuer and to vacate the Suburb C property pursuant to orders made 18 June 2019, the application was listed for further hearing before me on 17 July 2019.  On that occasion, the applicant sought and obtained a warrant for possession of the Suburb C property.  I am satisfied that that application was brought wholly as a result of the respondent’s non-compliance with the orders made on 18 June 2019 to vacate the Suburb C property.

1. I accept the applicant’s submissions that her application was necessitated as a result of the respondent’s non-compliance with previous orders of the Court.

Section 117(2A)(e) Whether a party to the proceedings was wholly unsuccessful

1. It is submitted by the applicant that the respondent was wholly unsuccessful in his oral application for me to recuse myself as well as his Application in a Case filed 25 June 2019 seeking a stay of orders. On 2 August 2019 I dismissed that application.

2. Further, the respondent was also wholly unsuccessful in opposing the orders sought by the applicant in her application filed 12 June 2019, that she be appointed as trustee for the sale of the Suburb C property and that a warrant of possession issue with respect to that property.

3. Having regard to those matters, I am satisfied that the respondent was wholly unsuccessful in relation to his applications before me on 18 June 2019 and 17 July 2019.

Section 117(2A)(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings and the terms of that offer

1. This factor is not relevant to the current application.

Section 117(2A)(g) Any other matters the court considers relevant

1. The applicant submits that the respondent was on notice that she would be making an application for costs in respect of her enforcement application, as paragraph 10 of the application seeks the following order:-

   That the Respondent pay the Applicant’s costs of and incidental to this application on an indemnity basis.

2. Further, it is submitted and I accept that the respondent was well aware of the Court’s power to make costs orders as he has already had two costs orders made against him, one arising from the final hearing and the other made on 7 December 2018 in relation to an earlier enforcement application brought by the applicant.

Conclusion

1. As a result, after consideration of the factors contained in s 117(2A) of the Act, I am satisfied that an order for costs against the respondent is warranted in the circumstances of this matter.

2. I am satisfied that the respondent did not comply with the Final Orders, necessitating the application made by the applicant to enforce the orders for sale of the Suburb C property. 

3. I am further satisfied that the conduct of the respondent in refusing to admit the valuer to inspect the property or to vacate the property was conduct the effect of which was to frustrate the operation of the Final Orders.

Quantum

1. The applicant seeks an order that the costs payable by the respondent be assessed on an indemnity basis.  She seeks the sum of $9,974 in respect of the hearing on 18 June 2019 and $9,247.50 in respect of the hearing on 17 July 2019.

2. In support of her application the applicant refers to and relies upon the Costs Agreement and Disclosure Statement between the applicant and her lawyer dated 1 December 2015, which was attached to the affidavit of Ms E filed 9 November 2018. As such, the applicant has satisfied the requirement that the Court be informed of such agreement pursuant to Rule 19.08(3) of the Rules.

3. Rule 19.18 of the Rules provides that the Court may make an order for costs:-

   (a)Of a specific amount;

   (b)As assessed on a particular basis (eg Lawyer and client, party/party or indemnity);

   (c)To be calculated in accordance with the methods stated in the order; or

   (d)For part of the case, or part of an amount, assessed in accordance with Schedule 3.

4. The law with respect to indemnity costs is well settled and as the Full Court said in Kohan & Kohan (1993) FLC 92-340, the Court should not depart lightly from the ordinary rules with respect to costs. In the decision of Prantage & Prantage [2013] FamCAFC 105, the Full Court confirmed that indemnity costs should only be awarded if the case has some special or unusual feature.

5. The principles enunciated in Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 where Sheppard J gave examples as to what might meet the test of there being some special or unusual feature so as to justify an award of indemnity costs have generally been applied in this Court. Those examples include:-

   (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 in the wilful disregard of known facts or clearly established law;

   (b)The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

   (c)Misconduct that causes 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; and

   (f)An award of costs on an indemnity basis against a contemnor.

6. It is submitted on the applicant’s behalf that sub-paragraphs (a) – (e) above are relevant to the assessment of costs in this case.

7. This was the fourth enforcement application the applicant has been required to bring before the Court to enforce the Final Orders. The respondent has continued to deny the existence of a de facto relationship, despite such declaration being made by Thornton J in September 2017. The applicant referred to and relied upon the observations of Cronin J in his judgment on 22 March 2019 where his Honour stated:-

   [42]…I have little confidence that the respondent has the will to sell the property.  His position consistently has been that the property belonged to him and it was only in the last stages of the trial that he conceded that it had to be sold.  He still maintains that he and the applicant were not in a de facto relationship.  A very strong impression that he gives, and which I accept to be his position, is that the applicant can wait for her money.

8. The concerns expressed by Cronin J as to the respondent’s attitude to the Final Orders for sale of the property were prescient given his conduct in the aftermath of those orders.  I am satisfied that the respondent’s non-compliance with the Final Orders has resulted in:-

   ·    delay in the applicant receiving the fruits of the judgment;

   ·    a significant amount in legal costs incurred by the applicant in enforcing her rights pursuant to the Final Orders;  and

   ·    caused a loss of time to the Court.

9. The applicant has had to file four applications to enforce the Final Orders, resulting in hearings as follows:-

   ·    First on 7 December 2018 to seek the appointment of a selling agent;

   ·    Second, on 20 March 2019 to seek orders regarding the method of sale and to fix a reserve price for sale;

   ·    Third, on 18 June 2019 to be appointed as trustee for the sale of the property; and

   ·    Fourth, on 17 July 2019 to seek a warrant for vacant possession of the property.

10. I am satisfied, having regard to that history, that the respondent has shown a wilful disregard of his obligations pursuant to the Final Orders.  The applicant’s application for indemnity costs relates to the third and fourth hearings referred to above.

11. I am satisfied that the manner in which the respondent conducted himself during the hearings on 18 June and 17 July 2019 was intended to frustrate and delay the operation of the Final Orders.  The respondent made sweeping and baseless allegations that there had been fraud and corruption in the conduct of the proceedings, that the Court was biased and that he had not been afforded procedural fairness.  When invited to particularise those complaints, the respondent was unable to do so.  At times the respondent was disrespectful, raising his voice whilst making submissions, as a result of which I cautioned him in relation to that conduct. The respondent’s conduct served only to prolong the hearing, increasing the time and cost to the Court and the applicant.

12. Having regard to the totality of the respondent’s conduct at the hearings before me on 18 June and 17 July 2019, and in circumstances where this is the fourth enforcement application with respect to the Final Orders, I am satisfied that there are “special or unusual” features which warrant a departure from the ordinary rule with respect to costs.

13. The applicant seeks that any award of costs be paid by the respondent out of his share of the sale proceeds of the Suburb C property. The respondent’s submissions were silent with respect to both quantum and manner of payment.

14. It was submitted on behalf of the applicant that without an order in those terms, the applicant has no way of securing the costs awarded to her by the Court, and little prospect of being paid, in light of the respondent’s conduct and attitude throughout the entirety of these proceedings. Having regard to the respondent’s conduct over the totality of the proceedings, I accept that submission.

15. I am satisfied that the amount sought by the applicant in her submissions dated 28 June 2019 is reasonable and appropriate having regard to the terms of the Costs Agreement between her and her lawyers.  The work undertaken on her behalf by her lawyer in relation to that hearing includes the drawing of an Application in a Case and affidavit in support, the briefing of Counsel for the hearing on 18 June 2019 and the attendance of an instructing solicitor at that hearing.  Accordingly, I will order that the respondent pay the amount sought, being the sum of $9,947 with respect to that hearing.

16. As to the application with respect to the hearing on 17 July 2019, I am satisfied that the amount claimed for Counsel is appropriate.  However, there would appear to be some double counting in the applicant’s submissions with respect to the amounts sought in relation to preparation for that hearing.  For example, the submissions refer to the drawing of the Application in a Case which amount has already been claimed in the first submissions.  The only additional material filed on behalf of the applicant with respect to the hearing on 17 July 2019 was a Response to the respondent’s Application in a Case filed 25 June 2019 and her affidavit filed 15 July, 2019.  Accordingly, I propose to allow the sum of $4,000 in respect of that hearing at which the applicant incurred costs in relation to counsel, instructing solicitor and the filing of the response and further affidavit.

17. Given the history of the matter, I am satisfied that it is preferable to fix the amount payable by the respondent rather than make an order for such costs to be as agreed or assessed.  In my view, to make an order in those terms would inevitably lead to further dispute between the parties as to the quantum of costs. Hence, the respondent will be required to pay costs of and incidental to the Application in a Case filed 12 June, 2019 on an indemnity basis and fixed in the sum of $13,947.00.

18. Accordingly, the orders I make are as follows:-

    (1)That the respondent pay the applicant’s costs of and incidental to the Application in a Case filed 12 June 2019 calculated on an indemnity basis and fixed in the sum of $13,947 (“the payment”).

    (2)That the payment be made to the applicant from the respondent’s entitlements to the proceeds of sale the property situate at and known as B Street, Suburb C.

    (3)That all extant applications be otherwise dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 December 2019.

Associate: 

Date:  12 December 2019