Harris & Dewell (No 2)
[2018] FamCAFC 180
•20 September 2018
FAMILY COURT OF AUSTRALIA
| HARRIS & DEWELL AND ANOR (NO. 2) | [2018] FamCAFC 180 |
| FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the husband and wife were unsuccessful in their appeal and cross-appeal – Where the husband’s father was a party to the trial and appeal proceedings – Whether the wife should pay the father’s costs of the appeal and the father’s application for costs – Where the circumstances justified the making of party and party costs orders in favour of the father and against the wife – Where the circumstances did not justify the making of a costs order in favour of the husband – Where the wife agreed to pay half the costs of acquiring the transcripts of proceedings. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 Family Law Rules 2004 (Cth) rr 1.04, 1.12, 19.08, 19.50, 22.53(3) |
| Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406; [2001] HCA 26 Bhatnagar & Riju [2018] FamCAFC 144 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536 Harris & Dewell & Harris (2018) FLC 93-839; [2018] FamCAFC 94 Kohan and Kohan (1993) FLC 92-340 Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Munday v Bowman (1997) FLC 92-784 NMFM Property Pty Ltd v Citibank Ltd(No 2) (2001) 109 FCR 77; [2001] FCA 480 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Saintclaire & Saintclaire (2015) FLC 93-684; [2015] FamCAFC 245 Trask & Westlake [2015] FamCAFC 214 |
| APPELLANT / FIRST CROSS‑RESPONDENT: | Mr Harris |
| RESPONDENT / CROSS‑APPELLANT: | Ms Dewell |
| SECOND CROSS-RESPONDENT: | Mr Harris Snr |
| FILE NUMBER: | SYC | 5809 | of | 2011 |
| APPEAL NUMBER: | EA | 194 | of | 2016 |
| DATE DELIVERED: | 20 September 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Strickland, Murphy and Johnston JJ |
| HEARING DATE: | Written submissions filed on 22 June 2018 by the husband and second cross‑respondent; and on 3 July 2018 by the wife. |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 November 2016 |
| LOWER COURT MNC: | [2016] FamCA 938 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT / FIRST CROSS-RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT / FIRST CROSS-RESPONDENT | Horton Rhodes Legal |
| COUNSEL FOR THE RESPONDENT / CROSS-APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT / CROSS-APPELLANT: | Karras Partners Lawyers |
| SOLICITOR FOR THE SECOND CROSS‑RESPONDENT: | Barry.Nilsson.Lawyers |
Orders
The wife shall pay to the second cross‑respondent his costs of and incidental to the appeal on a party and party basis up to and including the first day of the appeal in such amount as is agreed in writing or, failing agreement, as assessed.
The wife shall pay to the second cross-respondent his costs of and incidental to the application for costs of the appeal on a party and party basis in such amount as is agreed in writing or, failing agreement, as assessed.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that it was reasonable for each of the parties to engage Senior Counsel to appear.
The total amount of costs payable by the wife to the second cross‑respondent as agreed or assessed shall be paid within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
The wife shall pay to the husband the sum of $5,807.31, being one-half of the costs borne by the husband in the preparation of the appeal books and the obtaining of the transcript.
The amount in paragraph 5 of these Orders shall be payable by the wife within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
Otherwise, each of the husband and the wife shall bear their own costs of and incidental to the appeal, including their respective costs of and incidental to the application for costs.
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 Harris & Dewell and Anor (No. 2) 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 194 of 2016
File Number: SYC 5809 of 2011
| Mr Harris Appellant / First Cross-Respondent |
And
| Ms Dewell Respondent / Cross-Appellant |
And
Mr Harris Snr
Second Cross-Respondent
REASONS FOR JUDGMENT
On 25 May 2018 this Court made orders and delivered Reasons for Judgment dismissing the husband’s appeal against orders for settlement of property made by Rees J. We also dismissed the wife’s cross-appeal against those orders. The husband’s father (“the father”) was a respondent to the wife’s unsuccessful cross‑appeal.
We ordered the parties to file and serve any applications and written submissions in relation to the costs of and incidental to the appeal and the cross-appeal. Each did so. In the case of the father the application is brought through his daughter who is his case guardian. She swears the affidavit in support of his application.
The parties seek the following orders:
a)The husband seeks an order that the wife pay 75 per cent of the husband’s costs of and incidental to the appeal. If no order for costs is made pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), the husband seeks a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
b)The father seeks an order that the wife pay his costs assessed on an indemnity basis, or alternatively, on a party and party basis and an order that the wife pay his costs in relation to the costs application on a party and party basis. He, too, seeks a costs certificate if no order for costs is made.
c)The wife opposes the orders for costs sought by each of the husband and the father. If, however, the Court determines that a costs order is appropriate with respect to the father, the wife seeks that each of the wife and the husband pay half of the father’s costs.
The father’s application
Should there be an order for costs?
The submissions on behalf of the father seeking costs address each of the provisions of s 117(2A) of the Act in attempting to satisfy the Court that there are circumstances justifying departure from s 117(1).
Reference is also made to s 117(2A)(f) (“whether either party … has made an offer in writing to the other party to the proceedings to settle the proceedings”). Somewhat disingenuously as it seems to us, it is said that the wife has made no such offer whereas “[t]hroughout the proceedings, [the father’s] application was that [the wife’s cross-appeal] be dismissed”. The fact is, neither party made any such offer. The sub-paragraph has no application.
It is also contended, by reference to s 117(2A)(g), that the wife’s cross-appeal was doomed to fail because the “factual circumstances” in the instant case were different to that applicable in the decided authorities upon which the wife sought to rely. The arguments advanced by the wife were unsuccessful but we do not consider them to have been fanciful or wholly lacking in ostensible merit. We do not consider her appeal was doomed to fail whether by reference to the asserted difference in the “factual circumstances” or otherwise.
Particular reliance is placed upon the financial circumstances of the parties (s 117(2A)(a)) and the wife being “wholly unsuccessful” (s 117(2A)(e)). It is pointed out that the wife has assets within her control valued at approximately $8.8 million and income from both her part-time employment and a substantial share portfolio. It cannot be said that there is any particular financial difficulty on the part of the wife in meeting a costs order.
It should be accepted that the wife was “wholly unsuccessful” in so far as the appeal impacted upon the father. The Full Court held in Trask & Westlake (Costs):[1]
4.While costs do not “follow the event” any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the “fruits of their judgment”, can be of great significance…
[1] [2015] FamCAFC 214. See also, Saintclaire & Saintclaire (2015) FLC 93-684 at 80,618 [95]; Limousin & Limousin (Costs) (2007) 38 Fam LR 478 at [60].
We consider that factor to be of great significance here. Its importance is exacerbated by the fact that the father is not a party to the marriage and is, thus, a third party to proceedings emanating from the marriage.
We are persuaded that the circumstances here justify departure from s 117(1) and that the wife should be ordered to pay the father’s costs. In that event two further arguments are advanced by the wife.
Should the costs payable by the wife be confined to one day of the appeal?
The wife contends that any costs awarded against her be confined to day one of the appeal, the hearing of which extended into a second day. She argues that the matter could have been concluded on the first day but for the father’s desire that it be adjourned.
The father was aged 99 years at the hearing of the appeal. Considerations relevant to his state of health and general well-being saw the appeal being adjourned at his request. It is clear that in order to be concluded within the first day, the Court would have needed to sit beyond ordinary court hours. We indicated our preparedness to do so. The appeal could have been concluded on the first day but for the Court’s accommodation of the father’s circumstances.
We suggest no ‘blame’ being attributed to the father; it was entirely understandable that a litigant of his age and state of health should not wish to participate in an extended hearing day and the Court accommodated that wish accordingly. However, the question is whether the wife should pay his costs arising from that second day. We do not consider that the circumstances of this case warrant her doing so.
The consequence is that we consider the wife should pay the father’s costs of and incidental to the appeal up to and including the first day of the appeal.
Certification for Senior Counsel is not opposed and should be granted.
Should the father’s costs be shared equally between the wife and the husband?
The second argument raised by the wife consequent upon our determination that she should pay the father’s costs is that she and the husband should share equally those costs. The argument is not responded to directly in written submissions, but the wife’s argument assumes the husband would oppose that proposed order on the basis that “by implication … the Father would have no interest in the Appeal and would be unaffected by the outcome if only the Husband’s Appeal was alive”.[2]
[2] Wife’s submissions in response in relation to costs filed 3 July 2018 at paragraph 24 and the footnotes therein.
The wife argues that the father was a necessary party to the husband’s appeal because, contrary to the position in the husband’s amended Notice of Appeal, the husband sought a remitter in the event that his appeal was successful and, thus it is said, “[the father] is to be properly regarded as a necessary party to the Husband’s Appeal which, like the Wife’s, was wholly unsuccessful.”[3]
[3] Wife’s submissions in response in relation to costs filed 3 July 2018 at paragraph 25.
There is, though, a fundamental difference which in our view puts paid to the argument. If the husband’s appeal were the only appeal, the father had the option of abiding the order of the Full Court as success in that appeal would not of itself affect his substantive rights. His position with regard to the wife’s appeal is quite different; his substantive rights were potentially directly affected by an appeal that was ultimately unsuccessful in, in effect, challenging those rights.
The wife’s argument should be rejected.
Should the ordered costs be assessed on an indemnity basis?
The father seeks an order that the wife pay his indemnity costs of the appeal fixed in the sum of $106,356.17 or, alternatively, his indemnity costs in an amount to be assessed or agreed. In the further alternative, he seeks an order for assessed or agreed party and party costs.
The arguments in support of an order for indemnity costs rest on the proposition that the father:[4]
…should never have been involved in the proceedings [because] [a]t no time did [the husband] have any legal right to benefit from the assets of the [relevant trust] nor was it established that [the husband] controlled [the father]. The ultimate control has at all times rested with, and currently rests with, [the father]
(Footnotes omitted)
[4] The father’s submissions in support of application for costs filed 22 June 2018 at paragraph 14.
The argument attributes to Holden CJ in Munday v Bowman[5] the identification of “the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions” as a circumstance where indemnity costs might be awarded. In fact, the identification of that example was made by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd,[6] before his Honour went on, in that case, to hold that “there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice”.[7]
[5] (1997) FLC 92-784 at 84,660.
[6] (1993) 46 FCR 225 (“Colgate-Palmolive”).
[7] Colgate-Palmolive at 233.
In Kohan and Kohan,[8] the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”.[9] In the later decision of the Full Court in Prantage & Prantage,[10] Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
[8] (1993) FLC 92-340 (“Kohan”).
[9]Kohan at 79,611.
[10] (2013) FLC 93-544 (“Prantage”).
That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation.[11]His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.[12]
[11] (2001) 179 ALR 406 (“Arundel Chiropractic”).
[12]Arundel Chiropractic at [40].
The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd(No 2),[13] referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”[14]
[13] (2001) 109 FCR 77 (“NMFM Property”).
[14]NMFM Property at 92 [56].
Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater.
We are not persuaded that there is anything exceptional or unusual in the father’s involvement in the appeal. We reiterate our view that the arguments made against the father, while ultimately unsuccessful, could not be described as fanciful or wholly lacking in ostensible merit. We also reiterate that we do not accept the contention that the appeal was “doomed to fail”. There is no suggestion of improper motive or abuse of process involved in the challenges to the trial judge’s decision in respect of control of the trust.
Those factors gain weight because, as was conceded by Senior Counsel for the father on appeal, the husband exercised a significant ostensible level of control over the relevant trust,[15] and the wife’s assertions on appeal were made in the light of undisturbed findings of the trial judge as to the husband’s dishonesty and his attempts to obscure his control over the trust and its property.[16]
[15] Harris & Dewell & Harris (2018) FLC 93-839 at [30] – [31].
[16] Harris & Dewell & Harris (2018) FLC 93-839 at [35].
The father’s claim for indemnity costs should be dismissed.
For completeness it should also be mentioned that the wife asserts in written submissions opposing the appeal that the evidence said to meet the requirements of r 19.08 of the Family Law Rules 2004 (Cth) (“the Rules”) in respect of an application for indemnity costs is inadmissible and in any event inadequate. In fact, the relevant rule is r 22.53(3) (albeit that it is in identical terms to r 19.08).
The affidavit in support of the father’s application is sworn by the father’s case guardian. At paragraph 11, an ‘understanding’ is deposed to that the costs agreement between the father and his solicitors “was accepted”, but there is no specification as to the source of knowledge or basis of belief. The costs agreement annexed to the affidavit is signed only by the solicitor and not the father. In the written costs submissions of the wife, it is contended in that respect that:[17]
…these documents do not even constitute offers, let alone agreements and there is no evidence to satisfy the Court that they would, on assessment, engage sections 179 and 180 [of the] Legal Profession Uniform Law (NSW) so as to be binding upon the Father.
[17] Wife’s submissions in response in relation to costs filed 3 July 2018 at paragraph 19.
The obligation imposed by r 22.53(3) is to “inform” the Court if a party is bound by a costs agreement and, if so, to “inform” the Court of “the terms of the costs agreement”. There is no obligation cast by r 22.53(3) to put into evidence a copy of the relevant costs agreement, although in practice that is very frequently the means by which the Court is informed of its relevant terms.
The Full Court’s practice, wherever possible, is to call for submissions as to costs that embrace the possible permutations of result ahead of the orders and reasons being known. In those circumstances, in light of the quintessentially discretionary decision as to an award of costs and so as to save the parties further time and expense, the Full Court has adopted the practice in non-contentious cases of receiving evidence from the bar table in respect of the relevant s 117(2A) “justifying circumstances”.
It would be extremely unfortunate to say the very least if, at the end of a lengthy and costly litigation path, applications for costs subsequent to an appeal were to be the subject of yet further voluminous evidence and arguments about the admissibility of that evidence. The situation might be different if, with proper cause, there were allegations that claimed costs had not been, or would not be, actually incurred or where other fraudulent or improper behaviour was involved. The necessity for cogent admissible evidence in those types of allegations founded in fraudulent or unethical behaviour, is self-evident.
The word “inform” used in the Rules can be seen to embrace the notion that, save in cases of the type just described, and whether or not there is to be a dispute about the payment of costs and the manner of their assessment, intelligence and common sense can and should be used in the means by which the Court is informed of the requisite pre-conditions to awarding indemnity costs. In that respect, we reiterate our repeated encouragement for parties to seek to fix costs and for parties to assert, and reach agreement upon the quantum of costs (whether or not an argument as to whether costs should be awarded and the basis for their calculation, is to be advanced before the Court).
It may, then, be open to argue that the word “inform” as used in the Rules contemplates the Court being informed other than by means of strictly admissible evidence — at least where, as here, no allegations of impropriety of the type referred to above are made. That might be thought to be all the more so in light of the Court’s power to dispense with compliance with the Rules (r 1.12) and the matters to which the Court must have reference in so deciding, which includes taking account of the main purpose of the Rules expressed at r 1.04.
Were the evidentiary objections to be the only basis upon which the claim for indemnity costs was opposed, we would be inclined to invite submissions about the matters just described. However, as we have made clear, the claim must otherwise be rejected and it is not necessary for us to do so.
When should the costs be paid?
We were informed that there is pending, an application for costs in respect of the five-day trial. The potential sums involved are likely to be substantial.
We reiterate what we have earlier said about the undisturbed findings by the trial judge as to the husband’s dishonesty and his degree of control of the relevant trust and its property, including findings that the husband has been able to utilise the assets of the trust effectively at his whim. The father is very elderly and is represented in these proceedings by a case guardian. There is no suggestion that the ordered costs are necessary for his support; he has access to substantial assets within the relevant trust.
We consider it just that the payment of the costs by the wife occur as part of the totality of payments being met in implementing the trial judge’s orders for settlement of property and any orders for the costs of trial made by her Honour (or as might be the subject of consent orders following agreement between the parties).
The father’s costs of the application for costs
The father applies for his costs of and incidental to his application for costs in the appeal.
In our view, the same considerations we have earlier outlined apply equally to that application and he should have his costs of that application.
The husband’s application
Should there be an order for costs?
The basis for the application by the husband that the wife pay 75 per cent of his costs, as opposed to the total of them, is not explained. No application is made for indemnity costs.
The husband’s claim that the circumstances justify an order for costs has five bases.
First, it is said that the financial circumstances of each of the parties indicate plainly that they can meet an order for costs and, conversely, that no such circumstances militate against any such order being made. That contention should be accepted.
Secondly, it is said that “at both levels” (that is, at trial and appeal), the wife was unsuccessful. Respectfully, we are not persuaded that lack of success at trial is a relevant consideration unless it is also contended (which it is not) that the trial findings rendered agitation of error in respect of the same issues as doomed to fail or as having no ostensible merit. That is not the case here. As is conceded, in respect of the appeal proceedings, each of the parties was “wholly unsuccessful”.
Thirdly, it is contended that the “majority of the hearing” and the “majority of the submissions” on behalf of all parties “both in writing and during the course of the two days of hearing, centred around the Wife’s contentions in relation to the [relevant] trust”.[18] We are not persuaded that this contention amounts to anything more than a submission that the wife was wholly unsuccessful, at least in the absence of a contention that the pursuit of those matters unreasonably contributed to the length of the appeal. No argument of the latter type is raised or, in our view, is available in this case.
[18] Husband’s submissions on costs filed 22 June 2018 at paragraph 4.5.
Fourthly, it is contended that:[19]
At the hearing of the Appeal, the Wife sought to raise issues that were not raised by her learned Senior Counsel during the course of the substantive hearing [i.e. the trial] thereby having an impact on the issues … argued on Appeal and increasing the hearing time for the Appeal resulting in the parties all incurring further costs.
[19] Husband’s submissions on costs filed 22 June 2018 at paragraph 4.14.
It is true that arguments raised on appeal on behalf of the wife were rejected on the basis that they had not been first raised at trial. However, no particulars are given as to the asserted “impact on the issues … argued on appeal” — at least insofar as the impact is said to be reflected in costs. Similarly, it is not explained how the hearing time was increased by reason of those issues. In our view, it was not; indeed, as the submissions otherwise contend, the hearing was centred on the primary issue earlier identified.
Finally, it is contended by reference to s 117(2A)(f) of the Act (the making of written offers to settle) that, while neither party made an offer as such, an Application in an Appeal filed by the husband and determined by Ainslie‑Wallace J prior to the hearing of the appeal should be seen as such.[20] It is said:[21]
Whilst it is conceded that the Husband also failed in his Appeal, the Husband had taken steps after the Wife filed a Notice of Cross-Appeal to seek to avoid the need for the hearing of the Appeals by filing an Application in a Case wherein he sought Orders that each Appeal be granted. The Wife opposed the Application and the Appeal hearings proceeded.
[20] Husband’s submissions on costs filed 22 June 2018 at paragraph 4.12.
[21] Husband’s submissions on costs filed 22 June 2018 at paragraph 4.7.
The submission assumes that the consent of the parties would, without more, have resulted in the appeals being allowed and, in accordance with the orders sought in the respective notices of appeal, a single Judge of the Full Court hearing that application could and would exercise the relevant discretion by reference to the materials then before that Judge.
The Full Court has held, consistent with authority of the Full Court of the Federal Court, that the Court must be satisfied of error before making an order consenting to the allowing of an appeal.[22] No assumption can or should be made that the parties’ consent would result in the Court being satisfied of error. Moreover, the argument suffers from what we consider to be the insuperable difficulty that, ultimately, both appeals failed.
[22] See, Bhatnagar & Riju [2018] FamCAFC 144 and the authorities referred to at [3] – [6].
We are not persuaded that the circumstances justify an order for costs being made in favour of the husband. Each of the husband and wife should bear their own costs of and incidental to the appeal.
Although no application is made for costs of the application for costs, we would make it clear that the order is intended to embrace the same such that each of the husband and wife bears their own costs of and incidental to the application for costs.
Should costs certificates issue?
Relevantly, the husband seeks an order as an alternative to the order for costs sought that a costs certificate issue pursuant to s 9 of the Costs Act, which is in these terms:
(1) Subject to this Act, and in particular without limiting section 6, where:
(a) a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b) in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
…
The wife is correct in submitting that the application is “misconceived”. The husband is not the appellant in an appeal that has succeeded.
Equally, and for the sake of completeness, the father is not a respondent to an appeal that has succeeded such that he might avail himself of s 6 of the Costs Act.
The agreed order for costs between husband and wife
It appears that each of the husband and wife determined to institute appeals from the trial judge’s orders. However, the husband had filed his appeal first and the wife became a cross-appellant. As a consequence, the husband bore solely the costs of preparing the appeal books and obtaining the transcript. The wife agrees that the husband should be reimbursed for one-half of those costs in the sum of $5,807.31. An order should be made to that effect.
The wife seeks an order that this sum be set off against the sums owing by the husband by way of settlement of property pursuant to the trial judge’s orders.
We have already indicated our reasons for postponing the payment of costs otherwise ordered to be paid by the wife until the issue of the costs of trial has been determined by the trial judge (or agreed between the parties). A similar order should be made in respect of this agreed sum.
Conclusion
For the reasons we have given, the following orders will be made:
(1)The wife shall pay to the second cross‑respondent his costs of and incidental to the appeal on a party and party basis up to and including the first day of the appeal in such amount as is agreed in writing or, failing agreement, as assessed.
(2)The wife shall pay to the second cross-respondent his costs of and incidental to the application for costs of the appeal on a party and party basis in such amount as is agreed in writing or, failing agreement, as assessed.
(3)Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that it was reasonable for each of the parties to engage Senior Counsel to appear.
(4)The total amount of costs payable by the wife to the second cross‑respondent as agreed or assessed shall be paid within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
(5)The wife shall pay to the husband the sum of $5,807.31, being one-half of the costs borne by the husband in the preparation of the appeal books and the obtaining of the transcript.
(6)The amount in paragraph 5 of these Orders shall be payable by the wife within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
(7)Otherwise, each of the husband and the wife shall bear their own costs of and incidental to the appeal, including their respective costs of and incidental to the application for costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Johnston JJ) delivered on 20 September 2018.
Associate:
Date: 20 September 2018
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