Hejiz & Hejiz (No. 2)
[2018] FamCA 776
•28 September 2018
FAMILY COURT OF AUSTRALIA
| HEJIZ & HEJIZ (NO. 2) | [2018] FamCA 776 |
| FAMILY LAW – COSTS – Where application for costs made by the wife – Where husband wholly unsuccessful – Where circumstances justify order for costs – Where husband wholly unsuccessful – Where submitted that husband had wilful disregard for the facts and the law – Where consideration of relevant principles - Where not appropriate to order indemnity costs – Where such costs assessed in a specific sum. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.18 |
| Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Harris & Dewell & Harris (Costs)[2018] FamCAFC 180 |
| APPLICANT: | Mr Hejiz |
| RESPONDENT: | Ms Hejiz |
| FILE NUMBER: | PAC | 2891 | of | 2014 |
| DATE DELIVERED: | 28 September 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received on 10 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Coleman SC |
| SOLICITOR FOR THE APPLICANT: | Thornton Storgato Law Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Mr West of Coleman Greig Lawyers |
Orders
That the husband pay the wife’s costs of and incidental to the applications determined by orders made 13 August 2018 in the sum of $20,000.00 within 28 days from this date.
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 Hejiz & Hejiz (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).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2891 of 2014
| Mr Hejiz |
Applicant
And
| Ms Hejiz |
Respondent
REASONS FOR JUDGMENT
On 16 March 2018 final orders adjusting the property interests between the parties were made by consent.
Those property orders were as follows:
2.That by way of property settlement the Husband shall pay to the Wife the sum of One Million Five Hundred Thousand Dollars $1,500,000.00 (“the Capital Sum”) in the following manner:
2.1.Forthwith upon the making of the Orders the Husband shall deliver up to the solicitors for the Wife a bank cheque in favour of “Thornton Storgato Law Practice Trust Account” in the sum of $100,000.00 (the “First Instalment”);
2.2.On or before 15 July 2018 or the date of settlement of the sale of the Husband’s interest in the … business known as [BB Business], whichever should be the earlier, the Husband shall pay directly to the Wife or as she may direct in writing the sum of $800,000.00 (“the Second Instalment”); and
2.3.The Husband shall pay directly to the Wife the sum of $600,000.00 by annual instalments of not less than $120,000.00 each year with such payment to be made on or before each anniversary of these Orders (and for the avoidance of doubt any amount in excess of $120,000.00 paid within each of those years shall not accumulate to be recognised as part satisfaction of the obligation to pay not less than $120,000.00 in the following year) until such time as the $600,000.00 has been paid in full (“the Remaining Instalments”),
Provided always that in the event that the Husband should fail, neglect or refuse to make any or any part of the payments referred to in this Order by the date due and in the event that he should remain in default in respect of any part of such payment for a period of 14 days beyond the due date then such part of the total sum of $1,500,000.00 as remains unpaid shall become due and payable forthwith.
3.That until such time as the Husband has paid all monies payable pursuant to each of Orders 1.1, 1.2 and an aggregate portion of the Remaining Instalments comprising $240,000.00, then he shall pay to the Wife by way of spousal maintenance the following:
3.1The sum of $500.00 per week by direct credit to such bank account as she shall nominate in writing, with the first payment on or before 23 March 2018 and weekly thereafter;
3.2All council rates, water rates and home building insurance in respect of the property situate at and known as [CC Street, Suburb Q] (the “[Suburb Q] Property”) as and when they fall due;
3.3All car registration and insurance expenses in respect of the [motor vehicle] registration number … as and when they fall due;
3.4That pending payment of the Second Instalment the Husband shall pay all instalments of principal and interest as accrue in respect of the loan from the National Australia Bank presently secured by mortgage upon the [Suburb Q] Property, as and when they fall due.
4.That until such time as the Husband has paid all monies payable pursuant to each of Orders 1.1, 1.2 then he shall pay to the Wife by way of spousal maintenance all reasonable fees in respect of pool cleaning and garden maintenance at the [Suburb Q] Property.
5.That simultaneously upon receipt of the Second Instalment the Wife shall pay all monies and do all acts and things necessary to discharge the loan from the National Australia Bank secured by mortgage upon the [Suburb Q] Property but nothing herein shall excuse the Husband from his obligation pursuant to Order 2.4 and in the event that there be any arrears of payments due pursuant to Order 2.4 at the time the Wife discharges the said mortgage then she shall be entitled to recover such amount as a debt from the Husband to her.
6.That forthwith upon payment of the first instalment the wife shall sign an authority if presented by the husband addressed to Mr E solicitor authorising him to release any funds in his trust account subject of direction of the parties to the husband.
7.That by way of property settlement, within 7 days the Husband shall sign all documents and do all acts and things necessary to transfer and assign to the Wife, unencumbered, all of his right, title and interest in the motor vehicle registration number …;
8.That the Husband’s obligation to pay the Capital Sum and Spousal maintenance payable pursuant to Order 1, 2 and 3 herein shall be charged in favour of the Wife upon his interest in the property situate at and known as [DD Street, Suburb EE] in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifiers … and … (“the [Suburb EE] Property”) and such charge shall be secured by mortgage and the Husband shall as mortgagor forthwith upon the making of these Orders deliver up to the Wife a duly executed mortgage in the form annexed hereto and marked with the letter “A” in registrable form and he shall forthwith make any application directed by the Wife to the first mortgagee of the property to permit the registration of the second mortgage, but in any event the Wife shall be entitled and the Husband shall so consent to her registering a caveat upon the title of the [Suburb EE] Property recording her interest as an unregistered mortgagee in the event that the said mortgage is not registered, and the wife shall remove the caveat and discharge the said mortgage upon the husband’s compliance with Orders 1 and 2 and 3.
9.Notwithstanding any earlier provisions of these orders, in the event of the sale of the [Suburb EE] Property then such part of the Capital Sum that has not been paid at that time shall be due and payable to the Wife forthwith in reduction of any outstanding part of the capital sum together with any interest accrued thereon, until paid in full and in any event any part of the capital sum that remains outstanding thereafter, together with any interest thereon shall remain outstanding to the wife to be paid as required by order 1.
10.The Husband shall pay as and when due all stamp duty, if any, as may arise in respect of the mortgage granted to the Wife over the [Suburb EE] Property pursuant to these Orders.
11.The court notes that the wife will consent whether as a mortgagee or caveator to permit the husband to refinance or borrow further funds secured by first mortgage upon the [Suburb EE] property provided always that the totality of the additional funds to be raised over and above the indebtedness secured by the first mortgage at the time that her consent is sought shall be utilised only for the sole purpose of applying those monies towards meeting the husband’s obligations to pay the capital sum of part thereof.
12.In the event that the Husband should sell the motor vehicle 2 registration number …, or become entitled to the proceeds of any comprehensive insurance policy covering the same, then any proceeds of sale (or insurance payment) beyond the amount required to discharge finance secured upon the vehicle shall be paid to the Wife in reduction of the Capital Sum.
13.Declaration that as between the Husband and the Wife, the Wife is solely entitled at law and equity to the Suburb Q Property being that property comprised in Folio Identifier … subject to compliance with Order 4.
14.That the Contravention Application filed by the Husband against the Wife on 23 December 2016 which is presently part heard shall be dismissed and the costs order made against the Wife in those proceedings on 24 January 2018 shall be discharged.
15.That the Husband shall indemnify the Wife in respect of any application for costs made against her by [Mr S], [C Pty Ltd], [T Pty Ltd] and/or [Ms J] arising in respect of any subpoena issued to either of them on the application of the Wife.
16.That all interim financial orders made in these proceedings be discharged as at the date to which they stand paid.
17.The court notes the undertaking to the court of the solicitor for the husband, Adam West, who is noted to be present in court when this undertaking is given that:
17.1He assures the court that he has the authority of CG Solicitors Pty Ltd trading as Coleman Greig Lawyers to provide this undertaking in respect of the company and himself;
17.2CG Solicitors Pty Ltd will forthwith upon the making of these Orders provide to the wife an executed and registrable Withdrawal of Caveat in respect of caveat registered number …1 presently registered upon the title of the [Suburb EE] property and they shall not lodge another caveat;
17.3CG Solicitors Pty Ltd hereby concedes priority to the wife in respect of the charge and mortgage to be taken over the [Suburb EE] property such that the interest created by the document described as an irrevocable authority and charge dated 22 February 2018 between Coleman Greig Lawyers and the husband contended to constitute a caveatable interest in registered caveat number … shall rank in priority behind any mortgage or charge registered by the wife pursuant to these Orders.
18.Declaration that other than as dealt with specifically in this order, as between the husband and the wife, they are each declared solely entitled to all property in their respective names and possessions.
19.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give validity and effect to these orders then the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Subsequent to those orders being made the husband, by way of an Application in a Case filed on 25 July 2018, sought orders ostensibly by way of enforcement of the primary obligations imposed by the consent property settlement orders.
The husband’s Application in a Case was supported by his affidavit filed 9 August 2018.
The wife, for her part, filed on 7 August 2018 a Response to the husband’s Application in a Case seeking a raft of orders by way of enforcement and otherwise and also on 7 August 2018 filed her own Application in a Case seeking injunctive orders and an enforcement hearing as to enforcement of the primary obligations imposed on the husband by reason of the final property orders.
The various applications of the parties did not proceed to hearing and were resolved by consent subject to the later determination of the issue of costs.
On 13 August 2018 orders were made by consent in respect to the various applications as follows:
BY CONSENT IT IS ORDERED THAT
(1)On or before 3.00 pm on Friday 24 August 2018:
a.the applicant pay to the trust account of the solicitor for the cross-applicant:
i.the sum of $800,000.00 together with;
ii.the sum of $4,601.00 being interest payable on the sum of $800,000.00 from 16 July 2018 to the date of these orders; and
iii.the sum of $165.00 per day for each day from the date of these orders to the date of settlement;
b.upon receipt of the sums referred to in order (1)a. the cross-applicant hand to the applicant’s nominee, duly executed withdrawal of caveat number …, noting that such withdrawal of caveat will be provided at settlement pursuant to these orders;
c.upon receipt of the withdrawal of caveat referred to in order (1)b. hereof the applicant deliver up to the solicitor for the cross-applicant or Westpac Bank for lodgement, a replacement caveat in the terms of the caveat attached to these minutes as annexure “A”.
(2)Note that, in accordance with the orders of 16 March 2018, the caveat referred to in order (1)c. hereof shall be lodged immediately upon the proposed mortgage to Westpac bank being registered by the LTO.
(3)Within 48 hours of order (1) the cross-applicant’s solicitors provide a copy of the duly executed withdrawal of caveat referred to in order (2)b. hereof to the solicitors for the applicant.
IT IS FURTHER ORDERED THAT
(4)The wife file and serve short written submissions as to costs by no later than Monday 27 August 2018.
(5)The husband file and serve short written submissions in response by no later than Monday 10 September 2018.
(6)Thereafter judgment be reserved to chambers.
Costs
The question now for determination is the question of costs of either of the parties in respect to those applications.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party has legal aid and the terms of any grant of aid;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the Court considers relevant.
In Collins & Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy & Greedy (1982) FLC 91-250 and Luadaka & Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
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 (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(footnotes omitted)
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:
Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:
If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
Indemnity Costs
The application before the Court is an application for the husband to pay the wife’s costs on an indemnity basis, or such other order as the Court thinks fit.
It is usual for the Court to make an order for costs on a party/party basis if an order for costs is made at all.
Rule 19.18(3) further provides that:
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings.
The category of cases in which an award of an indemnity costs order may be appropriate are not closed and the Full Court of the Family Court observed in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at [31]:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such order is sought. …
More recently, the Full Court has considered indemnity costs in Joyce & Fante [2013] FamCAFC 141, Limousin & Limousin [2007] FamCAFC 1178, Fennessy & Gregorian [2009] FamCAFC 44 and D & D (Costs) (No. 2) [2010] FamCAFC 64.
Otherwise, the principles underlying an award for indemnity costs have been classically summarised by Sheppard J in Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536 where his Honour, in summary, said at [24]:
…
1. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on a party and party basis. …
2. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. …
3 In consequence of the settled practice which exists, the Court ought not usually make an order for payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. …
Sheppard J made observations as to some of the circumstances which may warrant the exercise of the discretion to award indemnity costs and they included:
a)false and irrelevant allegations of fraud;
b)misconduct that causes a loss of time to the Court and other parties;
c)where the proceedings were commenced or continued for an ulterior motive;
d)the undue prolongation of a case on groundless contentions; and
e)wilful disregard of known facts and clearly established law.
In Harris & Dewell & Harris (Costs) [2018] FamCAFC 180 (20 September 2018) the Full Court said (footnotes omitted):
23.In Kohan and Kohan, 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”. In the later decision of the Full Court in Prantage & Prantage, 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.
24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. 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”.
25.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), 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.”
26.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.
Relevant considerations
The financial circumstances of the parties are not asserted to be a relevant consideration by reason of the nature of the property orders made by consent.
Neither party is in receipt of a grant of legal aid.
The wife contends that the present applications were precipitated by the husband’s failure to comply with the final consent orders as to property. In this regard it is contended that:
a)The husband, without any right to do so, insisted on the wife delivering up a duly executed withdrawal of a caveat prior to the finalisation of his refinance for the purposes of making a payment to her. The wife’s caveat secured her position in relation to ultimate enforcement of property orders in the event that the husband failed in a timely manner to make payments required by him under final property orders. It is trite to say that the wife’s position that she would provide a duly executed withdrawal of caveat concurrently with the husband completing his refinance such that would facilitate the capital payment required to be made to the wife. As rightly contended on behalf of the wife this is a common conveyancing practice.
b)The husband for reasons only known to him required that the proceeds of his refinance be paid into his bank account notwithstanding that the refinance was for the purposes of payout to the wife and the refinance would have required the wife to provide a withdrawal of her caveat to facilitate the refinance completing. The wife rightly contends that once funds were in the husband’s bank account there was no guarantee that she would be paid in accordance with the orders.
c)Notwithstanding his primary default in complying with the final orders for property the husband persisted in his demands set out above notwithstanding that the wife had herself commenced proceedings by way of her Response and Application in a Case to enforce the terms of final property orders. The husband did not resile from his position until the matter was before the Court.
The husband was wholly unsuccessful in terms of the orders sought by him. Such in itself, of course, would enliven the question of costs. Indeed, by reason of the consent orders that finalised these further applications, he was required to pay the primary capital payment that was overdue together with interest to date of payment with the wife required, in consideration of the capital payment and interest to date of settlement, to provide at that time a duly executed withdrawal of caveat. Such was her entitlement at all times.
Indemnity Costs
Clearly, the general rule as to each party paying their own costs has been displaced and in the circumstances it is just that there be an order that the husband pay the wife’s costs of and incidental to the application as determined by orders made on 13 August 2018.
The wife seeks an order that such costs be on an indemnity basis. The circumstances that enliven the question of indemnity costs as referred to above include the circumstances envisaged in Colgate-Palmolive (supra) but as the Full Court has said:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such order is sought. …
The husband at all times maintained an untenable position with regard to the final property orders made by consent. In addition, he sought to renegotiate the implementation of the bargain between the parties reflected in their agreement in the consent orders. His position was in effect a wilful disregard for the facts and the law.
The wife has provided a copy of her Costs Agreement as between herself and her solicitors and Counsel in compliance with Rule 19.08(3). Failure to do so would have been fatal to her application for indemnity costs.
In all of the circumstances and having regard to the reality that such an order is a very great departure from the norm as to costs the Court is not satisfied that it is appropriate that there be an order that the husband pay the wife’s costs on an indemnity basis. However, there should be an order for costs assessed on the usual basis.
The purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In submissions the wife has provided a detailed statement of costs and disbursements including counsel’s fees calculated at the Family Law Scale of Costs pursuant to Schedule 3. Those costs on a solicitor/client basis total $33,229.90. Costs on a party/party basis would be expected to be less.
In doing the best on the material available it is appropriate that the husband be ordered to pay the wife’s costs in the sum of $20,000.00 within 28 days.
An order will be made accordingly.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 September 2018.
Associate:
Date: 28 September 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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