Hand & Bodilly
[2013] FamCAFC 98
•24 June 2013
FAMILY COURT OF AUSTRALIA
| HAND & BODILLY | [2013] FamCAFC 98 |
| FAMILY LAW – APPEAL - LUMP SUM MAINTENANCE – where the wife had a debilitating illness – where an order for lump sum maintenance was made to allow her to modify her home – where the husband challenged the trial judge’s use of a builder’s quotation and a small contingency allowed – where adequate reasons were given and the order was within the trial judge’s discretion – appeal dismissed. FAMILY LAW – APPEAL - COSTS – where the trial judge assessed the wife’s costs on a solicitor and own client basis relying upon a costs notice – where the husband asserted that his Honour had ordered “indemnity costs” – where the husband asserted that it was impermissible for the trial judge to rely upon the document in the way he did – where the husband asserted he had been denied procedural fairness – where the husband asserted the trial judge had not given proper weight to evidence and had not given adequate reasons – where although the trial judge had ordered a level of indemnity greater than party/party costs, he had not ordered “indemnity costs” - where no ground of appeal was made out – appeal dismissed. |
| Bouras v Grandelis (2005) 65 NSWLR 214 |
| APPELLANT: | Mr Hand |
| RESPONDENT: | Ms Bodilly |
| FILE NUMBER: | MLC | 10737 | of | 2009 |
| APPEAL NUMBER: | EA | 119 | of | 2012 |
| DATE DELIVERED: | 24 June 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Ryan and Watts JJ |
| HEARING DATE: | 14 May 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 734 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ackman QC with Ms Hannan |
| SOLICITOR FOR THE APPELLANT: | Kenna Teasdale Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr St John SC with Ms Rivers |
| SOLICITOR FOR THE RESPONDENT: | Tolhurst Druce & Emmerson |
Orders
The appeal be dismissed.
The husband pay the wife’s costs on a party/party basis as agreed or assessed.
It is certified that it was reasonable for the wife to engage senior counsel and junior counsel in the preparation and hearing of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hand & Bodilly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 119 of 2012
File Number: MLC 10737 of 2009
| Mr Hand |
Appellant
And
| Ms Bodilly |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Hand (“the husband”) against orders made by Loughnan J in August 2012. Ms Bodilly (“the wife”) is the respondent to the appeal. She seeks to maintain the orders made by the trial judge.
After 15 years of marriage, the parties separated in 1998 and subsequently divorced. As will be discussed further, the wife has multiple sclerosis which, over the years, has increased in severity. After the wife became unable to continue to work as a health care professional, or at all, she applied to increase the amount of periodic spousal maintenance payable by the husband pursuant to orders made in 2000 and for lump sum maintenance. The lump sum maintenance primarily related to renovation costs that the wife needed to her home, because she is wheelchair bound.
The husband is wealthy and on an annual salary package of $1.7 million (plus other entitlements). It took him a surprisingly long time to meet his obligation to fully disclose his financial circumstances and to concede that he had the capacity to pay spousal maintenance in whatever amount the Court determined was proper.
In summary, the trial judge ordered that the husband pay periodic spousal maintenance in the amount of $3,323 per week, periodic spousal maintenance which was backdated for nine months, lump sum maintenance in the amount of $120,000 and the wife’s costs in the amount of $331,188.25.
It is against the order for costs and the quantum of lump sum maintenance that the husband appeals.
Background facts
So as to provide context to the appeal, it is necessary to record some of the facts set out in his Honour’s reasons.
The wife had multiple sclerosis at the time the parties married.
On 19 December 2000, an agreement, made between the parties on
24 November 2000, was approved pursuant to s 87 of the Family Law Act 1975 (Cth) (“the Act”). The parties altered their property interests in a way that gave the wife the majority of their assets (approximately $500,000 out of $506,868) and left the husband with more than twice that amount in superannuation. His income and earning capacity greatly exceeded the wife’s. Overall, the wife received about 32 per cent of the assets and financial resources of the parties.
As part of the settlement of their financial affairs, the husband agreed to pay the wife an amount of $500 per week (not indexed) on a continuing basis. Thus, on 19 December 2000, a periodic spousal maintenance order was made to that effect (“the 2000 order”). At the time of the 2000 order, the wife worked part time as a health care professional earning $35,000 per annum.
The wife’s medical condition has progressively deteriorated as a consequence of which, since March 2007, she has been unable to work.
In 2007, the wife sought to negotiate an increase in her spousal maintenance and asked the husband to disclose his financial circumstances. The husband refused to increase the payments or reveal his financial position.
The husband’s financial fortunes greatly improved after separation.
In March 2009, he was made redundant and received a total payment in excess of $5 million and superannuation benefits of approximately $4.7 million. By then he had remarried and has two children of that marriage. He diverted a substantial component of his redundancy to his wife.
By November 2009, the wife was housebound.
The wife filed an Initiating Application in December 2009. She sought an increase in spousal maintenance in such amount that “the court deems appropriate” and that she be excused from particularising the amount until the husband disclosed his financial circumstances.
In February 2010, the husband filed a Response in which he sought that the 2000 order be discharged or, in the alternative, that it be suspended until further order. The husband, who was then unemployed, proposed that he advise the wife should he obtain employment or consultancy work. It is common ground that the financial statement that the husband filed with his response failed to adequately disclose his financial circumstances.
In January and February 2010, significant properties were purchased in the name of the husband’s wife.
On 1 April 2010, the husband commenced new employment with an annual salary package of approximately $1.7 million plus an entitlement to shares.
In May 2010, the parties attended a conciliation conference, at which both parties made offers of settlement.
In October 2010, a Senior Registrar heard the wife’s interim application to increase the weekly amount to $2,500 and for $115,000 by way of lump sum spousal maintenance.
The husband’s position was that (until the final hearing) the weekly amount be increased to $750. He opposed payment of any lump sum maintenance.
Although at the hearing before the Senior Registrar the husband conceded his capacity to pay the amount sought by the wife, it is common ground that the further financial statement he filed for that hearing remained deficient. Before us, senior counsel for the husband observed in relation to this financial statement that at least the husband disclosed his level of income. However, in that financial statement the husband said he had an average gross weekly income of $19,640 (an annual gross income of $1,021,280). His Honour found that that as at 1 April 2010 the husband had commenced new employment with a salary package of approximately $1.7 million plus an entitlement to shares. The husband does not challenge that finding.
The Senior Registrar made interim spousal maintenance orders that the husband pay the wife $1,500 per week and a lump sum of $25,000. With these orders the husband complied.
During the interim hearing there was a discussion about the possibility of a two day final hearing before the end of 2010. It was at this hearing that the wife informed the Court and the husband that her final application would at least be in the same terms as her interim application. Subject to adequate disclosure by the husband and her health needs, it was understood that the wife might ultimately increase the amount sought, which she did.
The husband’s position at the interim hearing that the wife should liquidate her modest assets and invest the proceeds so that she could make a contribution towards meeting her periodic needs was adhered to in the hearing before the
trial judge. However, even if this approach was adopted, the wife would be left with a shortfall in the amount of $2,638. Before his Honour, the husband acknowledged that an order in that amount should be made.
In March 2011, Ms O, an occupational therapist, became the wife’s case manager.
The wife filed an Amended Initiating Application on 10 October 2011. That application sought $3,000 per week and $100,000 by way of lump sum maintenance.
The wife filed a Further Amended Initiating Application in June 2012. That application sought $3,000 per week until 31 January 2012 and $4,000 per week from 1 February 2012 (indexed). She continued her claim for lump sum maintenance in the amount of $120,000. The wife also applied for an order that the husband pays her costs. Because the proposed costs order did not specify how any awarded amount would be quantified; it follows that an order made as sought would result in party/party costs.
The husband filed a Further Amended Response in July 2012 in which he sought the 2000 order be discharged and that he pay the wife indexed periodic maintenance in the sum of $1,500 per week.
At the hearing before the trial judge, the husband said that his income was $12,150 per week and he owned $4.396 million net assets and financial resources. He disclosed that he supported his wife and children and that his wife owned property worth $6.3 million net. His Honour recorded that the husband’s taxable income for 2010-2011 financial year was $5,836,247.
Importantly, in respect to the question of costs, the wife produced a costs notice dated 2 August 2012 and a second costs notice dated 14 August 2012.
The husband filed a Further Amended Notice of Appeal in May 2013 which effectively contains six grounds of appeal against the order for lump sum maintenance and nine grounds of appeal against the order for costs. For convenience these will be discussed under the rubric of the order to which they are directed.
Appellate principles
This is an appeal against the exercise of discretion.
The principles relating to appellate review of discretionary judgments are well established and provide that appellate courts should be reluctant to interfere unless it can be demonstrated that the decision was plainly wrong, unreasonable or unjust. In House v The King (1936) 55 CLR 499 the High Court said (at 504 – 505):
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said (at 519 – 520)
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Lump sum spousal maintenance
As no error is alleged concerning his Honour’s analysis of the applicable law, we will refer only to his findings and the reasons he gave for his decision. Suffice to say his Honour applied ss 72, 74, 75(2), 80(1)(l), 80(2) and s 83 of the Act.
Of particular relevance in this appeal is paragraph 8 of the joint statement of the occupational therapists which is as follows (Joint Report of Ms O and Ms R dated 25 July 2012 as set out in his Honour’s reasons for judgment at [99]):
8.HOME MODIFICATIONS
8.1As [the wife's] medical condition deteriorates it is likely that she will require further home modifications if she is to remain living within the current property. [The wife] now has a financial interest in the property as she is now part owner. Recommendations for major home modifications have been detailed in Ms [R's] initial [occupational therapy] report dated 29 November 2011, the Joint Experts Conference Report dated 27 January 2012 and Ms [O's] progress report dated 16 April 2012.
8.2Ms [O] in her report dated 16 April 2012 details a written quote provided by [H] Construction which estimates major modifications will total $57 700.00. This estimation was later verbally revised to $63 700.00 however Ms [O] continues to await written confirmation of the verbal quote. Both experts agree that further quotes should be obtained to ensure competitive pricing.
8.3Following discussions led by Ms [O], and when considering [the wife] now has financial interest in the property; it can be anticipated that [the wife] will remain living at her current address indefinitely. Given the limited knowledge Ms [O] has of [the wife's mother’s] health, that is having no life threatening medical conditions to reduce her life expectancy; it is reasonable to suggest that they will continue to cohabit for an unknown period of time. Ms [R] acknowledged that the option of the wife relocating to use the existing lounge room as her bedroom was proposed as a short term option or if [the wife] was living alone. Given the above factors, both experts agree that the major modifications as detailed in past reports are reasonably required.
8.4Both parties understand that there have been no changes to State Health and HACC Services funding (for home modifications) to suggest a change of funding rules and regulations. Once applied for, it is difficult to determine timeframes for assessment, approval and completion of required work. Based [the wife's] previous experience as detailed in past reports by Ms [O], it is likely there will be an extended delay in completion of required works if applied for through State Health and HACC Services.
When quantifying the wife’s proper needs, his Honour observed that her claim for lump sum maintenance would be entirely expended upon identified improvements to her property and other capital items. In addition, his Honour concluded that if she obtained some indemnity in relation to her costs this would result in a capital sum which would generate income.
His Honour then anticipated the lump sum orders he intended to make for backdated periodic maintenance, lump sum maintenance and costs to reach an unchallenged conclusion that the uncommitted part of the wife’s capital, if invested, would produce a return of $365 per week. His Honour found that after income is taken into account, the wife needed periodic maintenance in the amount of $3,323 per week.
His Honour noted the overwhelming disparity in the financial circumstances of the parties, describing the husband as having a “vastly more robust” financial position.
His Honour set out his conclusions about periodic maintenance and backdated maintenance. These conclusions and consequential orders are not the subject of challenge.
It is convenient to set out in full his Honour’s reasons for making the lump sum spousal maintenance order:
181.The wife seeks $120,000 by way of lump sum maintenance.
182.From an aide-memoire prepared by her senior counsel comes the following schedule:
Major Equipment/Home Modifications already spent by Wife
$10,035 Bathroom renovation (balance after government funding)
$18,920 Concreting
$5,280 Power wheelchair
$2,072 Garage modification for wheelchair etc
$3,400 Hi-Lo flex bed
$750 Traymobile x 2
$20,000 Awnings, venetians
Subtotal $60,457
Prospective Proposed Purchases
$39,953* Bathroom/toilet modification
$7,293* Installation of ramp to front door
$15,000* Leveling of outdoor rear side parthway [sic]
$6,424* Installation of new rear sliding door
$3,000** Bed hoist
$3,500** Pressure relieving mattress
$900** Wheeled commode chair
$2000** Electric reclining chair
$220** Emergency alarm
N/K* Storage cupboard above bathroom sink
N/K* Block platform to raise height of, [sic] dryer
Subtotal $78,290 TOTAL
$138,747
Less amount paid by Husband $25,000 Pursuant to interim orders
$113,747
*as quoted in February 2012
**as recommended by Ms [R] and/or Ms [O] in their reports.
183.The husband opposes the wife’s claim. As to the future, he does not dispute that capital costs will be incurred, nor that they are likely to be warranted but complains that there are no quotes or no adequate quotes so as to enable him to consider the claim. It is noted in his case that the Occupational Therapists said they could not assist with that issue without competitive quotes.
184.In support of the claim it was said that the expenditure included in the first sub-total has been incurred. As to the prospective claims the estimates are in evidence by way of a builder’s quotation. As to the need for further quotations, it is noted that Ms [R] herself was unable to obtain a further quote.
185.It is important to observe that there has been a considerable deterioration in the wife’s capital position over the life of the proceedings. But for the orders I am asked to make in relation to past maintenance, lump sum maintenance and costs, it is estimated that, apart from her interest in [Property V], and a modest superannuation interest, the wife’s capital will be reduced to $93,000. Therefore she has little scope to address the exigencies of life and sadly, she can confidently expect them to arise.
186.There is no challenge to the fact that the past capital costs and the cost of equipment were incurred. The builder’s quote for future work was dated February 2012. There is a concern as to the future house modifications that they might be affected at a lesser sum but the experts support the contention that modifications are needed. The experts support the claim that quotes are difficult to obtain. Doing the best I can, it seems to me that the wife has made out her case for lump sum maintenance. The estimates of future costs could be subject to change and it is proper for there to be a margin allowed over the precise estimate.
187.I will order that the husband pay $120,000. [our emphasis]
GROUNDS OF APPEAL IN RELATION TO LUMP SUM SPOUSAL MAINTENANCE
The appellant relied upon grounds of appeal as set out in the Further Amended Notice of Appeal filed on 9 May 2013.
Ground 1 and Ground 8
The Learned Trial Judge’s order that the husband should pay the wife by way of lump sum maintenance $120,000 was contrary to the evidence and/or the weight of the evidence.
In all the circumstances, the total amount ordered by His Honour for lump sum maintenance of $120,000 should be reduced to $45,077 being:
(a) $138,747 as found by His Honour at paragraph 182 of his Judgment;
(b) less ($68,670) for prospective proposed purchases as “quoted” by the builder (paragraph 182 of the said judgment);
(c) less ($25,000) paid by the husband pursuant to paragraph 2, Orders of 27 October 2010;
Total $45,077
There was agreement, at trial, that the amount of $138,747 should be reduced by the sum of $25,000, already paid pursuant to interim orders made by a Senior Registrar, to a sum of $113,747. His Honour rounded that figure up to $120,000. This $6,253 increase is challenged on appeal. The husband also contends that the builder’s quotation of $68,670 should not be included. According to the husband, the effect of this is that his Honour erred by making a lump sum order greater than $45,077 ($120,000 - $6,253 - $68,670).
Ground 1 is not specific and must only be considered as an overarching provision in relation to a number of grounds which follow. Its success as a ground of appeal depends on the success of the grounds over which it arches.
Senior counsel for the husband conceded that, considered in isolation, ground 8 could not vitiate his Honour’s judgment.
Ground 2, Grounds 4(a), (b), (c) and (d), Ground 5 and Ground 6
The Learned Trial Judge relied on the quotation of [H] Constructions Pty Ltd as to a total for four items of future renovation to the wife’s home totalling $68,670 (paragraph 182 of the Judgment and Annexure A of the wife’s affidavit 9 July 2012)
The Learned Trial Judge failed to give any or any sufficient weight to the evidence:
(a)that the quote for concreting had been orally revised from $9,000 to $15,000 and that Ms [O] had not received written confirmation of the verbal quote (page 7 of the affidavit of Ms [O] 16 April 2012);
(b)from Ms [O] (page 7, Ms [O’s] report 16 April 2012) … wherein she states: “Further discussion with Mr [K] who visited the site with a concreter after providing this initial quote indicated that the original $9,000 estimated for concreting the side path was insufficient. He noted that an engineer’s report would be required to address the effect of additional concreting on a nearby retaining wall and that more concrete than initially estimated would be required. He verbally advised that $15,000 would be a nearer estimation of the cost required for this part of the job. This would increase the estimated building cost to $63,700 plus GST. A formal updated quote from Mr [K] including this additional cost is still awaited at the time of this report”;
(c)that no engineer’s report was ever received, and that no formal update of the builder’s “estimate” was ever provided by the builder;
(d) that both experts agreed that further quotes should be obtained to ensure competitive pricing, yet no other quotes were obtained by the Applicant by the date of the hearing (see 8.2 Joint Report of Experts dated 27 July 2012);
The Learned Trial Judge fell into judicial error in relying upon the said “quotation” which had subsequently been orally varied by way of estimate, but never formally confirmed in writing by way of an updated quotation (as anticipated by Ms [O]).
The Learned Trial Judge failed to give any or any sufficient weight in all the circumstances to the facts that:
(a)the wife was unable to be cross-examined about the reasonableness and/or requirement of her prospective proposed purchases;
(b)the wife failed to provide any alternative quotes;
(c)that the wife’s experts and occupational therapists were unable and/or unqualified to assist with the assessment of the cost of the wife’s prospective proposed purchase needs because of the absence of:
(i) a formal quote from the builder;
(ii) competitive quotes from other builders;
(d)that the wife failed to provide any reason for her failure to provide evidence of:
(i) a formal quote from the builder;
(ii) competitive quotes from other sources [errors in original]
We have set out above the aide-mémoire which his Honour adopted at [182] of his reasons. Part of the aide-mémoire arises from a quotation dated
13 February 2012 from H Constructions Pty Ltd which was annexure A to the wife’s affidavit sworn 9 July 2012.
The original quotation was for $57,700 plus GST. The itemised amounts actually totalled $62,670 with the difference being caused by a slight miscalculation of GST. The original quotation allocated a provisional sum of $9,000 for concreting to enable the wife to use her wheelchair outside.
Ms O said (in her report dated 16 April 2012), that she had a subsequent conversation with the builder. The full text of her evidence is set out in ground 4(b). With that verbal variation, the quotation was revised by the builder to be $68,670.
It is common ground that the builder did not confirm that verbal estimation in writing. The husband complains that no explanation was given on behalf of the wife as to why no new tender document was obtained. The husband notes that the wife could not be cross examined about it. However, senior counsel for the wife correctly makes the point that Ms O was not asked any questions about the part of her report of 16 April 2012 that is set out in ground 4(b).
The husband next complains that both Ms O and [Ms R] (the occupational therapists retained by each party) agreed that further quotes should be obtained to ensure competitive pricing, yet no other quotes were obtained for or on behalf of the wife by the date of the hearing. That assertion relies upon paragraph 8.1 of the joint statement of the two occupational therapists quoted above which states, “however, Ms [O] continues to await written confirmation of the verbal quote. Both experts agree that further quotes should be obtained to ensure competitive pricing”.
At the end of the hearing the only evidence that his Honour had in respect of the cost of the concreting was the tender document from H Constructions Pty Ltd and the oral evidence of Ms O of her subsequent conversation with the builder.
Not only did senior counsel for the husband not challenge Ms O in relation to her evidence about her conversation with the builder, he did not during submissions to his Honour, assert that his Honour should not rely upon the report as a whole or that he should not rely on that part of the report relating to the concreting. Having failed to do so before his Honour, the challenge cannot succeed here. (Metwally (No 2) v University of Wollongong (1985) 60 ALR 68).
His Honour has made no error that would attract appellate intervention.
Ground 3
The Learned Trial Judge, relying on that quotation, found:
(a)“As to her need for further quotations it is noted that Ms [R] herself was unable to obtain a further quote” (paragraph 184 Judgment); and
(b) “The experts support the claim that quotes are difficult to obtain” (paragraph 186 Judgment).
These findings were contrary to the evidence and the weight of the evidence.
Senior counsel for the husband asserted that neither of the occupational therapists gave evidence to that or similar effect and that the trial judge was in error in finding that they had.
As to his Honour’s statement at [184], it was incorrect to say “Ms [R] herself was unable to obtain a further quote”, it would have been correct to say that Ms R herself did not provide any further quote.
At paragraph 43 of the wife’s affidavit of 9 July 2012, the wife said:
43. I have relied upon Ms [O] to obtain quotations for work to be undertaken. A builder from [H] Constructions Pty Ltd attended my home with Ms [O] in early February 2012. Ms [O] and I discussed with him the modifications he considered appropriate to best cater for my needs both presently and in the longer term. I was delighted with his helpful suggestions. He provided a quotation to remodel my bedroom, study and toilet area suitable for my needs. A quotation was also provided to remove the rear door and install a new door flush to the floor avoiding the present trip hazard and to raise the front entry and install a ramp to the front door making it suitable for me to use. Annexed hereto and marked “A” is a true copy of the quotation dated 13 February 2012.
On 13 July 2012, the husband served a request to the wife to answer specific questions. The husband referred the wife to paragraph 43 of her affidavit dated 9 July 2012, and asked that she provide evidence of each quote obtained with respect to the works to be undertaken.
The wife, by way of affidavit sworn 26 July 2012 at paragraph 15, answered the question asked in the following terms:
…these particulars have previously been supplied. I refer to paragraphs 44 and 45 of my fifth affidavit and annexure “A” attached to that affidavit and the report of Ms [O] annexed to her affidavit sworn 5th July 2012. I have not been able to obtain any other quotations. [our emphasis]
It is clear that his Honour had evidence from the wife that she had not been able to obtain any other quotations and had delegated that task to Ms O. By inference, Ms O had not been able to obtain any further quotations. The asserted error of fact made by the trial judge is that the husband’s expert had not been able to obtain any further quotations. It is not an error of fact that infects his Honour’s reasoning.
The husband further contends that the statement by his Honour that “the experts support the claim that quotes are difficult to obtain” is an error of fact. It is clear from what is set out above that the wife and Ms O had difficulty obtaining further quotes. It is true that Ms R did not say that further quotes had been difficult to obtain. Again, any error of fact made by his Honour about Ms R’s support of a claim that quotes were difficult to obtain, has no significant weight.
There was only one quote available to his Honour. The weighty matters were that he did have a written tender which had been amended verbally and that the wife had not been able to obtain any other quotations.
We do not find this ground made out.
Ground 4(e)
The Learned Trial Judge failed to give any or any sufficient weight to the evidence:
(e)that the Applicant failed to provide to the Court any evidence as to what steps if any had been taken to have the faulty work of the previous tradesman corrected by him free of charge (see paragraphs [44] Wife’s affidavit 9 July 2012 and Ms [O’s] report being Annexure “JO-1 to her affidavit sworn 5 July 2012);
At paragraph 44 of the wife’s affidavit of 9 July 2012 the wife said:
Unfortunately the work undertaken at the rear of my home last year to provide an area for me to go outside is sloped and a trip hazard. As I am less steady since the attacks I am no longer able to access the backyard in case I fall. The [H] Constructions quotation includes the cost to re-level this area. I am informed by Ms [O] and verily believe a firmer price for these works has been supplied to her. I am eager to get out into the backyard again especially when the weather improves. …
In his request to the wife for answers to specific questions, the husband asked, inter alia:
With respect to paragraph 44 of your affidavit sworn 9 July 2012 please:
(a)Advise the steps you have taken to have the works completed in 2011 (namely the work to the rear of the home) repaired by the tradesmen who originally completed the work, free of charge;
The wife answered that question at paragraph 16 of her affidavit of 26 July 2012 in the following way:
…The question incorrectly assumes the original work was defective. The work complied with what I understood my requirements were at the time but unfortunately my condition subsequently declined and now the further work is required to meet my needs. I do not believe I have an entitlement to seek that the further work be done at no charge to me…
Given that was the evidence before his Honour, there can be no basis for this ground of appeal nor does the transcript disclose this matter being raised with
his Honour during submissions. This ground of appeal is misconceived.
Ground 4(f)
The Learned Trial Judge failed to give any or any sufficient weight to the evidence:
(f)that the Applicant had not provided any evidence as to whether or not State Health and HACC Servicing Funding for home modifications was available to the Applicant to pay for and/or subsidise the cost of future home modifications (see generally paragraph 8.4 Joint Statement Experts 27 July 2012 and paragraphs 30 and 34 of the Wife’s affidavit 6 October 2011);
The husband submitted that the wife’s failure to apply for any available subsidy from the government was a significant issue which the trial judge did not address.
Senior counsel for the husband submitted that the wife had deposed in paragraphs 30 and 32 of her affidavit of 6 October 2011 that the previous works required by her had cost $30,175.90 of which she paid $10,035. The balance of $20,140.90 was paid by the government; that is, the government paid 67 per cent of the total bill.
In section 8.4 of their joint statement, the occupational therapists said, “it is likely there will be an extended delay in completion of required works if applied for through State Health and HACC Services”.
There was no issue that the work had to be done. It was conceded by senior counsel for the husband that the husband had not applied for an order to the effect that he would fund the renovations on the basis that the wife made an application for government assistance which would eventually be refunded to him.
More fundamentally, however, this matter was not raised with the trial judge during the hearing. Had this matter been raised with his Honour, it would have been open to his Honour to conclude that it would have been inappropriate for the wife to have been subjected to an extended delay in the completion of the required works. His Honour did not reach that conclusion because the matter was not raised with him. Again, the principles set out in Metwally (No 2) v University of Wollongong stand in the way of this matter being successfully agitated before us.
The fact that this matter was not explored at trial is important for another reason. The husband argues that the wife should have applied for a government benefit. Section 75(3) of the Act provides that a court shall disregard any entitlement of a party whose maintenance is under consideration to an income tested benefit. Because the matter was not raised at trial, there was no exploration as to whether or not the asserted benefit the wife would receive fell within the definition of an income tested benefit in s 4 of the Act and reg 12A of the Family Law Regulations 1984 (Cth).
Given the nature of any possible funding was not explored at hearing, it cannot be that his Honour made an error by not taking it into account.
Ground 7
The Learned Trial Judge, having accepted that $113,747 was the figure required to provide for the wife’s future needs (see judgment, paragraph 182) increased that sum by $6,253 to a total of $120,000 as “the estimate of future cost could be subject to change and it is proper for there to be a margin allowed over the precise estimate” (see judgment, paragraph 186)
This finding was:
(a) contrary to the evidence and/or the weight of the evidence; and/or
(b)an incorrect exercise of His Honour’s judicial discretion. [errors in original]
His Honour’s conclusion that the estimates of future costs of works could be subject to change and that it was proper to allow a margin over the estimate is supported by reference to the list of prospective proposed purchases in the aide-mémoire at [182] of the reasons (set out above). Two of those items are in the following terms:
N/K * Storage cupboard above bathroom sink
N/K * Block platform to raise height of, [sic] dryer
Consequently, it is clear from the calculation that his Honour undertook that led to him reaching the figure of $113,747 that there were at least two items on the list for which no amount had been allowed.
The trial judge rounded up because he said that there could be future change and there should be an additional contingency for work yet to be costed. We find no error in that finding.
Senior counsel for the husband submitted that if none of the grounds raised in relation to lump sum maintenance were sufficient by themselves to warrant appellate intervention, considered cumulatively, they were sufficient to vitiate the exercise of discretion. We do not accept this submission.
Accordingly the appeal in relation to the lump sum spousal maintenance order will fail.
Costs
Again, as no error is alleged concerning his Honour’s analysis of the applicable law, we will refer only to his findings and the reasons he gave for his decision. Suffice to say his Honour applied s 117 of the Act.
There is no challenge to his Honour’s summary of the wife’s application for costs which was opposed by the husband. His Honour said:
188. The wife seeks an order that the husband pay her costs of these proceedings and that the costs be assessed on a solicitor and client basis. The wife seeks that the Court make an assessment of the costs rather than requiring a formal taxation process. The husband opposes a costs order and in any event, opposes the assessment of any costs other than on a party and party basis.
The wife’s costs notice dated 14 August 2012 revealed that she had incurred costs in the amount of $361,188.25.
When applying the provisions of s 117(2A) of the Act, his Honour again referred to the husband’s vastly superior financial circumstances. This factor was afforded significant weight.
The other important matter referred to by his Honour was the conduct of the parties, and the positions each had taken throughout the proceedings.
His Honour described the misleading evidence in the husband’s first financial statement and his prevarication when challenged about it. His misstatements involved non-disclosure of millions of dollars. There is no challenge to his Honour’s findings and conclusions that:
·the foundation of financial proceedings is the requirement of full financial disclosure.
·the husband made no real effort to properly disclose his financial position at the commencement of the proceedings.
·although the husband in his Response filed in February 2010, proposed an order that he notify the wife when he obtained employment, he did not do so because he assumed that she would know of his new appointment from articles that appeared in the business press.
·the husband is obviously intelligent and was legally represented at all times. The trial judge described the husband’s attempt to justify his sworn February 2010 financial statement as “laughable”.
When contrasting the wife’s conduct of the litigation, his Honour found that any inaction or delay by her was caused by the exigencies of her circumstances. It was noted by his Honour that the wife waited two years after she ceased paid employment to commence these proceedings, albeit she had unsuccessfully approached the husband for an increase.
His Honour dealt with the husband’s complaint that the wife had initially failed to particularise her claim. His Honour observed in the husband’s earlier affidavits that he did not raise as a relevant matter the unquantified nature of the wife’s claim and said (at [212] of his Honour’s reasons):
Ultimately the husband accepted much of the wife’s claim. That he came to that acceptance late is evidenced in the difference between the arguments made in the Case Outline prepared before the hearing and the oral submission of his learned senior counsel at the conclusion of the trial.
As to other factors referred to in s 117(2A), his Honour observed that neither party was wholly unsuccessful and said at [214] “[r]emarkably, there were no written offers of settlement.” (emphasis removed)
His Honour then dealt with the basis upon which the wife sought an assessment of costs and correctly recorded that the level of indemnity that the wife sought was on “a solicitor and own client basis”.
His Honour commenced his discussion of the authorities in relation to the different methods for the assessment of costs, with reference to r 19.18 of the Family Law Rules 2004 (“the Rules”). This rule provides that the court may order that a party is entitled to costs:
(1) (a) of a specific amount;
(b) as assessed on a particular basis (eg lawyer and client, party/party or indemnity) …
At [223], his Honour quoted from A. G. Saddington, Taxation of Costs Between Parties (at page 68), where the author explained the difference in the level of indemnity between party/party costs and solicitor/client costs in the following terms:
It appears, therefore, that on a taxation between parties on a solicitor and client basis, the unsuccessful party has to pay all the costs incurred by his opponent excepting in respect of (1) costs and expenses incurred prior to the institution of the action; (2) journeys and expenses of which the party liable could have no knowledge, and which would not ordinarily be performed or incurred; (3) the employment of more counsel, or the payment to them of larger fees than the circumstances of the case warrant, including the giving of special retainers.
His Honour correctly set out that the general position under the Act in relation to costs is that the parties bear their own costs subject to the provision that if there are circumstances that justify an order for costs, the resultant order must be just.
His Honour referred to his earlier discussion of s 117(2A) of the Act and concluded:
228. …By reference to the remarkable disparity in their financial circumstances, in particular the fact that the wife can ill-afford the costs of the proceedings and because of the way in which the husband conducted the proceedings, the wife is entitled to an award on a basis greater than the usual party and party basis.
229. I flagged with learned senior counsel the option of me making an assessment of the costs rather than ordering that the costs, on whatever basis, be as agreed or assessed. The former approach was supported on behalf of the wife and I have recorded no opposition to it on behalf of the husband. No doubt, by Rule 19.18 (1)(a), the Rules of court do no more than state the inherent position but I am able to make such an assessment. After their efforts over nearly 3 years of litigation about what is more usually the summary relief of spouse maintenance, I am not confident that the parties would be able to efficiently navigate the processes of either achieving an agreement about the quantum of costs or of assessment proceedings before a taxing officer. I will make an assessment.
…
231.In my view the wife should be left with some obligation for costs. By not quantifying her claim, the wife made it difficult for the husband to make a meaningful response. Although no fault of the wife, the fact that the wife was not available for cross-examination was also through no fault of the husband. In my view the proper impost on the wife for the legal costs of these proceedings would be $30,000. It follows that the husband should pay the wife $331,188.25.
232.As to their being no opportunity for the Court or the husband to be satisfied about the justification for the quantum of the award, I am comforted by the fact that albeit out of all proportion to the matter ultimately in issue, the wife’s costs bear some relation to those incurred by the husband in these proceedings. As at 2 August 2012 the husband had paid $235,799.34 and had been advised of further costs at an estimated $65,000 for each day of the trial. I assume that not all of those costs were incurred. For example the doctors were not required for cross-examination. Nevertheless, it appears that the husband’s costs will be more than those of the wife.
233.The husband’s lawyers did not have the problem of taking instructions from a client who was virtually house-bound, living in another state, nor had their client suffered any cognitive impairment. In those circumstances, one would expect the wife’s costs to be greater than those of the husband. That suggests that the wife’s costs are not inflated or exaggerated.
234.In summary, the wife has made out a case for an award of costs giving her a greater indemnity than she would receive on a party and party basis. Without putting the parties to a formal assessment process but as a check against the reliability of the wife’s solicitor client claim, her costs appear to be of the order of those also incurred by the husband. My assessment is tempered by those elements of the case that were beyond the husband’s control and therefore the wife is left with responsibility for $30,000 of her costs.
235.I will order that the husband pay to the wife costs assessed in the sum of $331,188.25. Those costs will be payable within 28 days.
[footnotes omitted]
Principles in relation to an appeal against an order for costs
In Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited (1993) 46 FCR 225 , Sheppard J said at 232-234:
24. It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
…
6. It remains to say that the existence of particular facts and
circumstances capable of warranting the making of an order for
payment of costs, for instance, on the indemnity basis, does
not mean that judges are necessarily obliged to exercise their
discretion to make such an order. The costs are always in the
discretion of the trial judge. Provided that discretion is
exercised having regard to the applicable principles and the
particular circumstances of the instant case its exercise will
not be found to have miscarried unless it appears that the
order which has been made involves a manifest error or
injustice.In Harris & Harris (1991) FLC 92-254), the Full Court said at 78,711:
…Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.
Although this may state the proposition “at its highest” (Browne v Green (2002) FLC 93-115, at [50]), it is well settled that the Full Court should be reluctant to interfere with decisions of a trial judge relating to costs (Robinson & Higginbotham (1991) FLC 92-209, Stephens & Stephens and Anor (Enforcement) (Costs) (2010) 44 Fam LR 117).
The High Court in Penfold v Penfold (1980) 144 CLR 311, when referring to s 117(2) of the Act, said at 315:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised ... [citations omitted]
Although these comments must now be read subject to the subsequently inserted s 117(2A) of the Act, they remain pertinent to the role and adequacy of reasons when costs orders are made. These remarks were applied by the Full Court in Stephens & Stephens and Anor (Enforcement) (Costs) and are quoted by the trial judge.
GROUNDS OF APPEAL IN RELATION TO COSTS
Ground 9 and Ground 10
The Learned Trial Judge’s finding that the husband should pay costs of $331,188.25 or any costs at all, was contrary to the evidence, and the weight of the evidence.
The Learned Trial Judge’s discretion miscarried in ordering that the husband pay to the wife the sum of $331,188.25 by way of costs or any costs at all.
Senior counsel for the husband did not specifically refer to these general grounds in the husband’s amended summary of argument. The trial judge exercised a broad discretion. As is clear from our discussion of his Honour’s reasons, in relation to the order for costs made in favour of the wife, his Honour placed greatest weight upon the disparate financial resources of the parties and the manner in which the husband conducted the litigation.
Absent any more specific complaint, these general grounds must fail.
Ground 17 and Ground 18
The Learned Trial Judge erred in law and/or his discretion miscarried in finding that the wife’s application that costs be assessed on a solicitor and own client basis did not constitute an application that her costs be assessed on an indemnity basis (paragraph 219);
The Learned Trial Judge’s discretion miscarried and/or erred in law in then ordering that the wife be indemnified as to her total costs (i.e. indemnity costs).
As we explained earlier, his Honour at [223] described the difference in the level of indemnity between party/party costs and solicitor/client costs. That said, it is possible that an order for solicitor/client costs may, in some circumstances, provide a complete indemnity.
His Honour did not give the wife a full indemnity. As the reasons make clear, the wife’s actual costs were $30,000 more than the husband was ordered to pay.
Costs on a “solicitor and client basis” have had different shades of meaning over the decades. Sometimes that discussion equates “solicitor and client” costs with “indemnity” costs but as Santow JA said in Bouras v Grandelis (2005) 65 NSWLR 214:
125. The weight of authority is that solicitor and client costs and indemnity costs are distinct, though the difference between them has been eroded by practice and by inconsistent amendments to the various legislative instruments that make up the costs assessment regime.
126. An order for solicitor and client costs will allow all reasonable costs or all costs as fair justice to the other party will allow. The onus of proving that the costs are reasonable falls on the receiving party.
127. Historically, solicitor and client costs were somewhat more generous than party/party costs. …
It is clear from the trial judge’s reasons that he was aware that the wife bore the onus of proving that her claim for costs was reasonable.
It follows this ground must fail.
Ground 11 and Ground 16
The Learned Trial Judge erred in law in ordering that the husband should pay the costs of $331,188.25 or any costs at all to the wife.
The Learned Trial Judge’s finding that the Wife sought an order that her costs should be assessed on a solicitor and own client basis was contrary to the evidence (paragraph [216] of the Judgment);
The wife’s application filed 26 June 2012, paragraph [5], did not seek any such order.
The wife’s Amended Initiating Application filed 26 June 2012 included an application that the husband pay her costs and disbursements without specifying whether the costs were sought on a party/party, solicitor/client or indemnity basis. Without more, it would be fair to treat this application as an application for party/party costs. However, senior counsel for the wife in final submissions made it clear that the wife sought solicitor and own client costs. It was not unreasonable to wait to the end of the evidence to formulate the precise nature of the costs application (if any) that would be made by the wife.
The trial judge based his decision on the evidence contained in the wife’s costs notices, which we will next discuss.
These grounds are not made out.
Ground 12, Grounds 14(a), (b), (c)
The Learned Trial Judge relied solely upon the Wife’s Order 19.04 Family Law Rules in determining the Wife’s costs (see paragraph [189] of the said Judgment);
That the Learned Trial Judge fell into judicial error:
(a)by relying upon an unsworn document being the Order 19.04 Statement of Costs provided to the Court by the Wife as the basis of assessing the proper costs of the Wife;
(b)by not giving any or any proper weight to the fact that the document was unsworn and thus was not in evidence;
(c)by not requiring the said document to be scrutinised by the Court and/or the Husband and in particular:
(i) how the costs were calculated; and/or
(ii) the reasonableness of such costs;
(iii) the purpose for which the costs were expended by the wife.
in determining whether all such costs should be totally borne by the husband.
As already mentioned, the trial judge relied upon the wife’s costs notices dated 2 August 2012 and dated 14 August 2012.
Although r 19.04(6) of the Rules provides:
(6)At the end of a court event, the court must return the copy of the notice or statement given under this rule to the person who gave it
it was clear that his Honour intended to use the documents for the purpose that he did and inferentially dispensed with compliance with the rule.
It is reasonable to conclude that in the circumstances in which these documents were provided to the Court (and in particular the second of the two costs notices), that the documents were not intended to be aide-mémoires. The context in which the documents were provided to his Honour make it clear that
his Honour intended to rely upon those documents, particularly in circumstances where his Honour was being asked to, and in fact did, conclude that the appropriate basis for assessment of costs was a solicitor/client basis.
The trial judge also relied upon the husband’s costs notices, when assessing the reasonableness of the costs the wife had incurred. The point being, that the two were comparable, albeit that the husband’s costs were greater than the wife’s.
Given that his Honour was entitled to rely upon these documents in the way he did, these grounds are not made out.
Ground 15
The Learned Trial Judge denied the Respondent Husband judicial fairness and/or natural justice by relying on a document that was not in evidence or subject to the scrutiny of the Court and/or the Husband.
Senior counsel for the husband submitted that the circumstances in which the trial judge came to rely upon the wife’s costs notices denied the husband “judicial” fairness and/or natural justice.
In order to explore that contention, it is necessary to examine the way in which his Honour’s approach to how the cost application would be considered evolved during submissions.
Initially, his Honour contemplated that consideration of the question of costs might await the final determination of the substantive matter and be dealt with on another day.
His Honour’s view about the appropriate time for submissions on costs changed during submissions made by senior counsel for the wife. Senior counsel for the wife told his Honour that there were no “letters of offer” or any other evidence about costs and said the application for costs would turn on known facts (the disparity of financial position and the history of the litigation). Senior counsel for the wife submitted to the trial judge that since the costs sought by the wife were substantial, if awarded, they would impact upon the income that would be available to the wife and be relevant to the consideration of the spousal maintenance application. Significantly, senior counsel for the husband put the following to his Honour (at page 286 of the transcript of proceedings on 8 August 2012):
[SENIOR COUNSEL FOR THE HUSBAND]: Your Honour, might I be bold enough to suggest that your Honour, in the course of giving judgment will understand the impact of your Honour’s own orders. That seems a much more appropriate thing to do, with respect, than to try and prejudge your Honour’s own judgment. Your Honour will be aware that if you order x thousand dollars costs, then that’s x thousand dollars costs less the wife has to pay. But it seems to me, with the greatest respect, that the only person who can do this adjustment is your Honour because only your Honour will eventually know what the figure is.
HIS HONOUR: Sure. As long as you’re comfortable
After this exchange, senior counsel for the wife started to take his Honour through the wife’s costs notice dated 2 August 2012 (part of exhibit 5) (at pages 322-323 of the transcript of proceedings on 8 August 2012):
[SENIOR COUNSEL FOR THE WIFE]: In the circumstance, of course, your Honour has the power to fix costs. If your Honour has a detailed accounting of the costs that have been incurred, your Honour would perhaps be in that position were your Honour so minded and in that circumstance, it certainly would be the preference of my instructors – those who instruct me that – and perhaps certainly would reduce the costs to the parties generally were your Honour prepared to fix it on the basis of that
HIS HONOUR: Okay. All right.
[SENIOR COUNSEL FOR THE WIFE]: Yes. My instructor would also have me say he’s concerned about the ongoing stress of the proceedings on my client and would like to have it concluded as soon as possible.
HIS HONOUR: Okay. [Senior counsel for the husband], can I ask you about that first?
[SENIOR COUNSEL FOR THE HUSBAND]: Well, yes, your Honour can ask me whatever you like first and I was about to address you on that first anyway, your Honour.
HIS HONOUR: Okay. I’m just wondering, if I feel that it’s appropriate for that level of indemnity, is there a process short of an assessment that your client would abide in relation to costs? [our emphasis]
It should be noted that it does not appear that senior counsel for the husband ever directly and unambiguously addressed the emphasised question at any point prior to the end of the hearing.
His Honour expressed the view that if he determined the substantive proceedings in the wife’s favour he wished to then be in a position to make an order as to costs (at pages 323-324 of the transcript of proceedings on 8 August 2012):
HIS HONOUR: No, I think – no, to be fair, I think what we’re doing is we’re doing a what if and I accept that. [Senior counsel for the wife] is saying there’s – whatever you make of the case, there is the financial circumstances of the parties, there is the other matters in section 17(2)(a) [sic] that he has – 117(2)(a) [sic] that he has raised and I will, without costing the parties any more money, turn my mind to those things once I’ve decided what the case should be – the substantive matter should be. So
[SENIOR COUNSEL FOR THE HUSBAND]: But your Honour still
HIS HONOUR: I don’t think there’s any problem with that.
[SENIOR COUNSEL FOR THE HUSBAND]: Well, I wasn’t entirely confident of what my learned friend was inviting your Honour to do, but if your Honour
HIS HONOUR: It’s like an appeal – addresses on an appeal – on the costs of the appeal. If the appeal is successful, you would say this. If the appeal is unsuccessful, you would say that. It’s more nuanced with an application like this, but I think that’s what we’re doing, if you don’t mind. If you’re aggrieved about that and you would like me to hand down a judgment in relation to the substantive matter and then you would like the parties to embark on another exercise in relation to the costs, I’m happy to hear you about that.
The following exchange then took place (at page 324 of the transcript of proceedings on 8 August 2012):
[SENIOR COUNSEL FOR THE HUSBAND]: Well, your Honour, I’m not trying to impose more financial burden on anybody, including most particularly my client. What I am concerned about, your Honour, is – well, let me continue about the things I’m concerned about. My learned friend’s application seems to be for indemnity costs. What he’s asking
HIS HONOUR: No. He’s asking for costs to be assessed on a solicitor and own client basis and indemnity costs would reverse the onus in relation to the quantification, so they’re a different thing, as I understand it. Are you arguing that we shouldn’t deal with costs now or are you – or you’re dealing with costs now?
[SENIOR COUNSEL FOR THE HUSBAND]: I’m dealing with costs now, but I’m not
HIS HONOUR: Excellent.
[SENIOR COUNSEL FOR THE HUSBAND]: I’m arguing about a quantification on the
HIS HONOUR: Excellent. …
Senior counsel for the husband then submitted that ( at page 324 of the transcript of proceedings on 8 August 2012,) “[i]t would be wrong to in any way constrain your Honour by the fact that – the suggestion is that these parties will never agree about anything and therefore I assume that I’m putting them into a new fight if I don’t fix the figure…” This oblique statement by senior counsel for the husband would appear to be the closest senior counsel for the husband came to making a submission that his Honour should not quantify costs.
Senior counsel for the husband went on to make some submissions on costs. He then, again in a reasonably oblique way, enquired of his Honour as to whether he was considering quantifying the wife’s costs and said that if this was not within his Honour’s contemplation, he would “leave it”. Having indicated that it was within his contemplation, his Honour invited senior counsel to address him on this point. Senior counsel for the husband then referred his Honour to well known authorities regarding the conduct of parties and the basis for indemnity costs.
His Honour then reminded senior counsel for the wife that the wife was to provide the court with a document as to costs calculated as at the end of the trial. His Honour also gave the husband the opportunity to make further written submissions.
It is apparent that on 7 August 2012, senior counsel for the husband handed to his Honour two costs notices relevant to the husband’s costs. The wife had already, prior to the final hearing, filed her costs notice dated 2 August 2012. His Honour made those three documents exhibit 5.
On two occasions during submissions on 8 August 2012, senior counsel for the wife referred his Honour to the detail of the wife’s first costs notice.
On the second of those occasions his Honour asked whether any other costs had been incurred that were not recorded on exhibit 5. Senior counsel for the wife went on to tell his Honour that based upon the wife’s costs notice dated
2 August 2012 a mathematical calculation needed to be undertaken to reach the final figure. The following exchange then occurred (at page 321 of the transcript of proceedings on 8 August 2012):
HIS HONOUR: I think the shot would be, this is a way of calculating what the costs would be and I would prefer to have a document that said what the costs are.
[SENIOR COUNSEL FOR THE WIFE]: Certainly, your Honour.
HIS HONOUR: So could you, say within a week, provide to myself and to [senior counsel for the husband’s] instructing attorney
[SENIOR COUNSEL FOR THE WIFE]: Certainly, your Honour.
HIS HONOUR: a document that sets out what the costs are?
[SENIOR COUNSEL FOR THE WIFE]: Certainly, your Honour.
HIS HONOUR: That would be of assistance to me. Thanks.
Towards the conclusion of submissions, the following exchange between
his Honour and senior counsel for the husband occurred (at page 328 of the transcript of proceedings on 8 August 2012):
HIS HONOUR: Thank you. Okay. So in a week you’re going to write something to me and [senior counsel for the wife] and within a week I’m going to get a calculation of [senior counsel for the wife’s] client’s costs?
[SENIOR COUNSEL FOR THE HUSBAND]: Well, it may be, your Honour, that you won’t get anything more from me, but I will inform your Honour so you won’t be sitting by the phone waiting, your Honour.
HIS HONOUR: Okay.
[SENIOR COUNSEL FOR THE HUSBAND]: It will only be if I feel I haven’t done justice to the case by what I’ve just said.
Senior counsel for the wife provided an updated costs letter to his Honour on 14 August 2012. On 16 August 2012, senior counsel for the husband emailed his Honour’s associate with a list of authorities relied upon in relation to the question of costs. That document from the husband did not raise any issue in relation to the wife’s document which was dated 14 August 2012.
There was a concession made by senior counsel for the husband before us that nothing in the wife’s updated costs letter took him by surprise. A fair reading of the submissions made to his Honour, the wife’s letter dated 14 August 2012 and the husband’s letter of 16 August 2012 leads us to comfortably conclude that the husband was given a proper opportunity to consider and make submissions about the quantum of the wife’s costs.
Although senior counsel for the husband indicated that he wished to make submissions about “quantification”, he did not make any submissions about the detail contained in the wife’s cost notices. By the end of submissions, the
trial judge had clearly foreshadowed the approach he was going to take.
We do not find this ground of appeal made out.
Ground 13
The Learned Trial Judge fell into judicial error in including in his finding that, as per the said Order 19.04, the Wife’s Statement of Cost included $14,400 costs paid directly to Mr [F] by the Wife (paragraph 189 of Judgment, 1.2(b)) when the Learned Trial Judge had already accounted for the costs of Mr [F’s] work “associated with these proceedings” in calculating the arrears of the Wife’s weekly spousal maintenance (paragraph 121 of the Judgment); [errors in original]
This ground asserts his Honour double counted the wife’s accounting fees.
In the wife’s costs notice dated 14 August 2012 there is an item of $14,400 which relates to costs paid to her accountant, Mr F.
His Honour made an order in favour of the wife by way of backdated periodic maintenance. That order, as previously noted, is unchallenged. As part of that order, his Honour allowed $200 per week by way of accountant expenses for the period between 6 October 2011 and 8 July 2012. At [121], his Honour described what work the accountant did for that payment. It primarily related to the preparation of the wife’s income tax returns; work associated with steps she would take to secure accommodation and the work associated with adjusting her affairs to realise capital. Because of the wife’s poor health, the accountant saw the wife at her home. His Honour also indicated that part (unspecified) of the accountant’s engagement related to work associated with these proceedings.
When calculating the ongoing weekly amount, his Honour made an allowance for accounting fees which could not be related to this litigation, in the sum of $145 per week.
This ground of appeal fails on two bases. First, it is far from clear that his Honour made an error by double counting. Second, putting the husband’s claim, at its highest, even if his Honour did double count, that error would be one relating to a period of nine months at a rate of $55 per week, which is $1,755. That amount would be de minimus and would not attract appellate intervention. (De Winter & De Winter (1979) FLC 90-605)
Ground 19
The Learned Trial Judge failed to give any or any sufficient reasons:
(a) for reducing the wife’s indemnity costs by only $30,000 (paragraph 231 Judgment);
(b) as to how that sum was calculated.
The trial judge had a wide discretion when considering the issue of the costs order against the husband. His Honour at [231] and [234] (set out above), gave sufficient reasons as to his approach in relation to the level of indemnity that he ordered in relation to the wife’s costs.
Ground 20
The Learned Trial Judge’s findings that:
(a)the duration of the litigation was likely to have been caused by the husband’s approach to litigation (paragraph 207, Judgement);
(b)by requiring the wife to be examined by his three experts only to find that there was virtually no dispute between either of them and the wife’s own experts was an example of the husband’s approach to litigation (paragraph 207, Judgement);
were contrary to the evidence and/or the weight of the evidence or were given excessive weight by the Learned Trial Judge in all the circumstances.
Although ground 20(a) uses the words “likely to have been caused”, they are not the words used by his Honour. The trial judge used the words “likely to have been partly caused” (our emphasis). An examination of the litigation reveals that the husband’s position from early 2010 onwards comfortably allows the conclusion that his approach was partly responsible for the duration of the litigation. There is little doubt concessions that the husband should have made at an early time were not made until very late in the proceedings.
There is no substance in this ground of appeal.
Ground 21
The Learned Trial Judge failed to give any or any sufficient weight to the following evidence:
(a) that the wife had not made a written offer of settlement;
(b)that the wife’s claim was only finally quantified in her application dated 26 June 2012;
(c) that the wife had not been wholly successful in her claim;
(d)that the wife’s evidence was not able to be tested by cross-examination.
Challenges based on weight are difficult to mount (Gronow v Gronow).
The trial judge noted that neither party provided the other with a written offer of settlement. The trial judge also commented that the wife’s claim was unquantified for two years. It is not the case however that the husband was unaware of the nature of the wife’s claim. It is true that the wife’s claim evolved over time. The wife had attempted in 2007 to engage the husband in discussions about a variation of the 2000 order. Her initial application asked that she be excused from particularising her claim until such time as the husband made full and frank disclosure of his financial position. He did not do so for some considerable time. By October 2010 the husband had been provided an indication of the ambit of the wife’s final claim which she could not properly formalise until the husband had given some meaningful and reliable financial disclosure.
The wife further amended her application for final orders on 10 October 2011 and 26 June 2012. The fact that the wife’s applications increased during the course of the litigation (which lasted three years) so that the husband did not know the wife’s “final position” assumes that, had the husband agreed to any of her earlier applications for final orders, the matter would not have resolved. There is no evidence that the wife would not have settled at an earlier stage for what she was asking for at that particular point in time. There is no basis for the husband to complain that the wife increased what she was seeking during the course of her litigation (during which time her needs increased as a result of the deterioration in her health).
At [80], his Honour discussed the effect of the wife not being able to be tested by cross examination. His Honour acknowledged that placed the husband at a forensic disadvantage. He went on to say that despite adversarial experts being retained by the husband to test much of the wife’s case there was virtually no successful challenge to her case. Finally, his Honour commented that (at [80] of his Honour’s reasons):
…Lest it be thought that the forensic disadvantage only applied to the husband. [sic] It [sic] is common ground that the wife’s health made it difficult for her lawyers to obtain instructions and impracticable on occasions, including for much of the trial, for her to attend on them, especially at Court and to be in a position to provide timely instructions.
It is clear from his Honour’s reasons that his Honour was aware of all the matters raised in this ground. It has not been demonstrated on appeal that his Honour failed to give any or any sufficient weight to any of these matters. This ground is not made out.
Accordingly the appeal against the order for costs will also fail.
Costs
In relation to costs of the appeal, the husband has been wholly unsuccessful. There is nothing in respect of the way the appeal was conducted that would warrant an order for indemnity costs. Costs will be ordered on a party/party basis as agreed or assessed.
We will certify that it was reasonable for the parties to engage senior counsel and junior counsel in the preparation and hearing of the appeal.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Ryan and Watts JJ) delivered on 24 June 2013.
Legal Associate:
Date: 24 June 2013
18
7
0