Hill v Hill - [2007] FamCA 1657

FAMILY COURT OF AUSTRALIA

HOME & HOME

[2007] FamCA 1657

FAMILY LAW – COSTS – Service of itemised costs accounts – Extension of time for service – Review of Registrar’s order extending time – Review constitutes original hearing – Time for service of itemised costs accounts extended

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth); Rules 1.14, 18.10, 19.21, 19.23, 19.24

Gallo v Dawson (1990) 93 ALR 479

Harris v Caladine (1991) 172 CLR 84

Morrison v Morrison (1995) FLC 92-573

OP & HM [2002] FamCA 454

Parrott v The Public Trustee of New South Wales (1994) FLC 92-473

Penfold & Penfold (1980) 144 CLR 311

Prowse v Prowse (1995) FLC 92-557

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

APPLICANT:

Ms Home

RESPONDENT:

Mr Home

FILE NUMBER:

BRF

2057

2004

DATE DELIVERED:

1 November 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Justice O’Reilly

HEARING DATE:

1 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Blattman

SOLICITOR FOR THE APPLICANT:

Mc Donald Brown

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr Hoskins

Berck & Associates

Orders

IT IS ORDERED BY CONSENT

To the extent necessary, the time for the wife to file her application for a review of the orders made by Registrar Stevens on 5 September 2007 is extended to 28 September 2007.

AND IT IS ORDERED

The Registrar’s orders made on 5 September 2007 are set aside.
The time for service by the husband on the wife of three itemised costs accounts in relation to the costs order made by Coleman J on 14 December 2006 (the three itemised costs accounts being for the husband’s costs of and incidental to proceedings on 5 and 6 December 2005, 26 May 2006 and 8 June 2006) is extended to 1 November 2007.
The husband pay the wife's costs, including Counsel's fees, of and incidental to the husband's application filed on 26 July 2007 before Registrar Stevens, to be assessed if not agreed, to be set off against the costs the wife is to pay the husband pursuant to Coleman J’s costs order made on 14 December 2006.
There be no order as to costs of or relating to the wife's review application.

NOTATION:

The intent of paragraph 3 of these orders is that for the purpose of Rule 19.23 of the Family Law Rules 2004 all 3 itemised costs accounts (although already delivered on 27 September 2007 as to the first and 2 October 2007 as to the second and third) be regarded as served on 1 November 2007 so that the time for the service of notices disputing the itemised costs accounts will run from 1 November 2007 and, if the parties are unable to resolve the dispute, the time pursuant to Rule 19.24(3) for either party to ask the Court to determine the dispute, by filing in the Registry the itemised costs accounts and the notices disputing the itemised costs accounts, will run from 28 November 2007.

IT IS NOTED that publication of this judgment under the pseudonym Home & Home is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2057 of 2004

MS HOME

Applicant

And

MR HOME

Respondent

REASONS FOR JUDGMENT

This is a review of a Registrar's orders made on 5 September 2007 to extend time for the husband to serve on the wife three itemised costs accounts, ancillary orders and a costs order.
On 14 December 2006 Coleman J had ordered (amongst other orders):
(1)That the wife pay the husband's costs of and incidental to proceedings before the Court on 5 and 6 December 2005; 26 May and 8 June 2006, on a party and party basis as agreed or taxed.
Pursuant to Rule 19.21 of the Family Law Rules 2004 (the Rules) the husband, as a person entitled to costs, was required to serve an itemised costs account (or in this case three itemised costs accounts) within 28 days after the order requiring payment of the costs was made, namely 14 December 2006, the 28 days thus expiring on 11 January 2007.
The terms of the Registrar’s orders included (relevantly) that:
(a)the time for the husband to serve an itemised costs account for the 5 and 6 December 2005 costs be extended to 28 September 2007; and
(b)the time for the husband to serve itemised costs accounts for the 26 May 2006 and 8 June 2006 costs be extended to 2 October 2007.
Pursuant to those orders:
(a)on 27 September 2007 the husband caused to be served on the wife an itemised costs account for the first set of costs ordered (5 and 6 December 2005); and
(b)on 2 October 2007 the husband caused to be served on the wife itemised costs accounts for the second and third sets of costs ordered (26 May 2006 and 8 June 2006).
The husband had earlier, on 21 May 2007, caused to be served on the wife an itemised costs account in relation to the first set of costs ordered (5 and 6 December 2005). The itemised costs account served on 27 September 2007 was the same account, but with minor variations.
The power to review is contained in s 37A(9) of the Family Law Act 1975 (Cth) (the Act), s 37A(10) providing that upon a review the Court may make such order or orders as it considers appropriate “with respect to the matter with respect to which the power was exercised”.
The Court on review proceeds by way of an original hearing. See Rule 18.10. See also Harris v Caladine (1991) 172 CLR 84 per Mason CJ and Deane J at 95-6; per Brennan J at 106; per Dawson J at 125-6; and per McHugh J at 164; cf however per Gaudron J at 154, referred to by the Full Court in Parrott v The Public Trustee of New South Wales (1994) FLC 92-473 at 80,904-5.
Rule 1.14 of the Rules provides that a party may apply to the Court to shorten or extend a time that is fixed under the Rules and that a party may make an application to extend time even though the time fixed by a rule has passed.
The discretion to extend time ought be exercised only upon proof that strict compliance with the Rules would work an injustice upon the applicant. In order to determine whether the Rules would work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application. See Gallo v Dawson (1990) 93 ALR 479 per McHugh J at 480-1; Prowse v Prowse (1995) FLC 92-557 at 81,568-81,573 but in particular at 81,572-3; Morrison v Morrison (1995) FLC 92-573 at 81,674; and more recently OP & HM [2002] FamCA 454 (27 June 2002) at [19].
In OP & HM at [19] the Full Court said:
19.The principles to be applied in determining an application for an extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the Court to do justice between the parties. This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise. (citations omitted)
Fundamentally, therefore, the exercise of the discretion must be based upon a consideration of whether strict compliance with the Rules would cause an injustice to the applicant, and whether an extension of time would enable the Court to do justice between the parties.
It is necessary that this be understood so that, for example, the matters set out in OP & HM at [19], third sentence, not be seen as fettering the broad discretion, but rather, as the Full Court said, as matters which are “normally shown” by a successful applicant for an extension of time.
Rules of Court are developed by Judges for the management and despatch of the cases in their courts, but “case management is not an end in itself”, the ultimate aim being “the attainment of justice”. This was made plain by the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 per Dawson, Gaudron and McHugh JJ at 154:
… Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Rule 1.04 of the Rules, consistently with that aim, provides that the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.
Rule 1.14, to which I have referred, takes its place in the Rules in this context.
I will now turn to consider the matters set out by the Full Court in OP & HM, as part of the exercise of considering where the justice of the case now lies.

Delay

Mr Hoskins of Counsel, for the husband, relied on the affidavit of Ms Kathleen Berck, the husband’s current solicitor, who explained that the husband's former solicitors, Jones Mitchell, had ceased to act. It is common ground that this occurred on 16 February 2007, and that Ms Berck commenced to act in February 2007.
On 21 May 2007, Ms Berck caused the first itemised costs account to be served on the wife’s solicitors, McDonald Brown. This account had been prepared by Jones Mitchell. (See the letter annexure C referred to below).
On 19 June 2007, the wife’s solicitors served a notice disputing that itemised costs account.
On 27 June 2007, as Ms Berck did not have the husband's files in the matter, she wrote to Jones Mitchell to request them. The files were substantial, the matter involving, it is common ground, some $6 million value in property. Ms Berck said that although she attempted to contact Jones Mitchell on several occasions, she finally resorted, on 26 July 2007, to filing the husband’s application for an extension of time to serve the “two additional” itemised costs accounts having, by that time, twice asked the wife's solicitors to consent to an extension of time, namely 19 July 2007 and 23 July 2007, which consent was refused. The basis of asking the wife's solicitors to consent to an extension of time, as Ms Berck explained in her affidavit (par 11), was that it had been impossible for her or for her firm to complete the two additional itemised costs accounts (the first, as I have mentioned, having been served on 21 May 2007) without possession of the files. As at the date of swearing her affidavit, 26 July 2007, Ms Berck still did not have the files.
Ms Blattman of Counsel, for the wife, referred to the circumstance that when the 28 days under Rule 19.21 expired on 11 January 2007, Jones Mitchell were still on the record (until 16 February 2007), and submitted that there has been no explanation by that firm of solicitors then or since as to why the time was permitted to pass without delivery of the itemised costs accounts. It is common ground that there had been apparently some level of negotiations for settlement of the costs matters in December 2006 and apparently through to early February 2007, there being offers made on 22 December 2006 and 1 February 2007. It may be, although there is no evidence on the point, that the husband's then solicitors considered, having regard to the cost of the preparation of itemised costs accounts (which, I may say, is self-evident from the voluminous three itemised costs accounts now in evidence) that they would avoid those costs whilst the negotiations were ensuing. However, as I have said there is no evidence as to that and, in the absence of such evidence, I accept the submission of Ms Blattman that whilst parties are always encouraged to have negotiations to resolve matters if that is possible, it is incumbent upon legal advisers to protect a party’s position in the meantime so that despite the negotiations the husband's former solicitors ought to have protected the husband's position by, in that 28 day period between 14 December 2006 and 11 January 2007, having the itemised costs accounts prepared and served. However, for whatever reason, they did not so protect the husband, and there is no evidentiary explanation for their not doing so. There is evidence however as to the fact of the negotiations. It is plain also that the 28 day period commenced and expired in the “festive” season. Thus, whilst there is no overt evidentiary explanation for the expiry of the 28 day period, it admits of at least some explanation by these underlying factual circumstances.
Ms Blattman then submitted that there is no explanation, on the evidence, for the delay between 11 January 2007 (the expiry of time date) and 21 May 2007 (when the first itemised costs account was served); and no explanation, on the evidence, for the delay between 11 January 2007 and 27 June 2007 (in relation to the second and third itemised costs accounts), 27 June 2007 being the date on which Ms Berck said she first contacted Jones Mitchell to obtain the husband’s files, but Ms Berck having acted for the husband since February 2007.
Ms Blattman submitted further that there is no explanation, on the evidence, for the delay between 27 June 2007, when Ms Berck first requested the files from Jones Mitchell, and 26 July 2007, when the husband's application for an extension of time was filed. However, in my view, Ms Berck did explain the delay in this period, in that she attempted on several occasions to contact Jones Mitchell to request the husband’s files, but was unable to contact him (apparently until 25 July 2007, when he said he would provide the files) and was unable to prepare the accounts without the files.
Ms Blattman submitted that, in effect, in addition to the expiry of the initial 28 day period, without explanation, there was then the further period of about 6½ months delay between 11 January 2007 and 26 July 2007, all or most of which is unexplained.
This submission however overlooks the explanation provided in Ms Berck’s letter 19 July 2007 to the wife’s solicitors (annexure C to her affidavit). The letter first referred to the wife’s notice disputing the first itemised costs account, and then said:
… It has now come to our attention that the account, which was prepared by Jones Mitchell, did not include itemised costs accounts for the last two dates in Justice Coleman’s order.
We note that we will be filing a further two itemised costs accounts for these two dates and seek your consent for an extension of time to have this matter listed for directions and in order for you to file any notice disputing costs in relation to these subsequent accounts. (emphasis added)
Thus, there is explanation by Ms Berck in relation to the period February 2007 until 27 June 2007 that it had recently (which I would infer by her use of the word “now” in the letter dated 19 July 2007) come to her attention that the itemised costs account delivered on 21 May 2007 did not include the second and third sets of costs included in Coleman J’s order.
Notice was given by that letter by Ms Berck that on the husband’s behalf she would prepare the “further two” itemised costs accounts.
By letter dated 23 July 2007 (annexure D to Ms Berck’s affidavit) the wife’s solicitors advised that the wife did not consent to an extension of time for the service of itemised costs accounts for 28 May 2006 and 6 June 2006.
By return letter 23 July 2007 (annexure E to her affidavit) Ms Berck noted the refusal of consent to the request to extend time for serving itemised costs accounts for 28 May 2006 and 6 June 2006 and in my view squarely provided a reason for not having drawn up the itemised costs accounts for those dates:
We advise that we are not in possession of the previous solicitor’s complete file. It would therefore be impossible for us to draw up itemised accounts for costs awarded to our client on these two dates. (emphasis added)
By the same letter Ms Berck gave notice of the application for extension of time:
We ask that you reconsider your response to our request in light of these circumstances. If your client still does not consent to an extension of time, we will have no choice but to make an application to the Court for such an extension and seek costs on an indemnity basis.
By letter dated 25 July 2007 the wife’s solicitors notified the husband’s solicitors that they would oppose any application for an extension of time to serve itemised costs accounts for 28 May 2006 and 6 June 2006.
This correspondence was not specifically referred to me during argument and thus not referred to by me in the ex tempore reasons given in the course of the busy duty list. I have however, in the process of editing these reasons, included reference to the correspondence because of its importance in serving to explain what was submitted by Ms Blattman to be unexplained.

Substantial issue to be raised

The matter at stake between the parties is undoubtedly substantial, being the value of three sets of Court proceedings, involving four hearing dates, each apparently with Senior and Junior Counsel, in the course of a matter which, on any view, appears to have had complex features.
The husband has been awarded his costs.
The matter in issue is whether he should be permitted to pursue that award, or be shut out from it.
The costs are likely to be substantial and the matter at issue therefore is substantial as between the parties.

Hardship/injustice

Mr Hoskins submitted that unless time is extended, the husband will suffer injustice by being deprived of the benefit of the costs order which a judge of this Court already substantively has determined in the husband's favour, that injustice being that for the want of a procedural step the judge's order forever will be unable to be carried into effect, unless time is extended, and the fruits of the costs order forever lost.
Against that Ms Blattman submitted, in addition to the matters in her written submissions, which are comprehensively set out and which I would incorporate by reference without further setting out, that in this particular case, hardship or injustice would occur “either way”, to the husband if time is not extended and to the wife if time is extended; but that in the proper exercise of the discretion as to which party “should bear the brunt of the hardship”, it ought not be the wife, because she is not the party which has “caused the predicament” that the husband is in, by his failure to comply with the Rules of Court, adding that Rule 19.21 is mandatorily expressed, by the use of the word "must".
Plainly, if the discretion is exercised in the husband’s favour, the wife will suffer the burden of the carrying out of Coleman J’s costs orders. However, it must be borne in mind that, substantively, this was a matter already adjudged against her by Coleman J.

Conduct of the parties in the history of the proceedings

Ms Blattman relied heavily on the conduct of the husband in the course of the proceedings, in particular, as set out in her written submissions at page 3, again which I would incorporate by reference without setting out, as conduct disentitling the husband from the benefit of the exercise of the discretion. In this regard I would refer, in particular, to par 19 of Ms Blattman's written submissions.

Analysis and conclusion

I have carefully considered all of the matters raised in the authorities which I am required to consider, all of the evidence and all of the submissions by Counsel.
In my view, the case is one in which I ought to exercise the discretion in the husband's favour, principally for the reason that, if I do not, then this would be a classic case of strict compliance with the Rules working an injustice to the husband as the applicant for an extension of time.
As to delay, the husband at all times was entitled to rely on his solicitors to take necessary steps to protect his interests. The husband himself is not shown to be at fault in any way. Although, as has been said in many cases in these matters, solicitors are the agent of a party such that steps that they fail to take are visited home to the litigant, I am not able to see, in this particular case, that the period of delay either by the husband's former solicitors or by the husband's present solicitors is so inordinate as to warrant, of itself, refusal of the exercise of the discretion in the husband’s favour.

I accept, as put by Ms Blattman, that the evidence does not overtly explain all of the delay. However, the correspondence to which I have referred, added to these reasons in editing them, in my considered view now, serves as adequate explanation.
The period of delay is not great (expiry of the 28 days then about 6½ months) when measured against the background of the parties’ lengthy litigation (dating back at least to 2005), and the underlying circumstances which I have mentioned, including a change of solicitors for the husband.
There is no evidence by the wife that the period of delay caused her to be lulled into the belief that the husband did not intend to pursue the costs order in his favour. If that had been the case, I would have expected that to have been sworn and, in the absence of it being sworn, it seems to me that at all times the wife must be taken to have been aware that the husband would be unlikely not to pursue the fruits of his costs order against her. Indeed, as early as 21 May 2007 the wife, by her solicitors, received the first itemised costs account. There is no evidence of any implied representation by that circumstance on which the wife relied or acted to her detriment that the second and third itemised costs accounts would not be forthcoming in due course.
Within two short months after 21 May 2007, namely 19 July 2007, the wife's solicitors were met then with a request by Ms Berck for an extension of time to serve the second and third itemised costs accounts. In the meantime, the wife on 19 June 2007 had filed a notice disputing the first itemised costs account served on 21 May 2007, without any apparent demur to its having been served out of time. The wife's solicitors twice were asked for an extension of time in relation to the second and third itemised costs accounts, and twice refused. They were on notice, by 19 July 2007 at the latest, that the husband intended to pursue his rights under the costs order relating to the second and third sets of costs.
Fundamentally, even if I were to find that the delay had not been adequately explained, to not exercise the discretion would work an injustice upon the husband because he has won substantively the benefit of a judicial order for costs in his favour. If time is not extended then he would suffer the injustice of forfeiting the benefit of that costs order forever, and correspondingly, the wife, unjustly in my view, would have the benefit of a windfall by escaping the burden of the costs order already substantively determined against her, all caused by a matter, in my view, not the husband’s own fault, as explained.
I am thus unable to see that injustice would be caused to the wife, the matter at issue between the parties already having been determined substantively against her; and there being no evidence of her being lulled into a belief, by the passage of time, that the husband would not pursue the full benefit of the costs order.
I have taken into account that the matter is a substantial one between the parties, the aspects of conduct of the husband relied upon by Ms Blattman and all of the submissions. However, in my view, as explained, this is a matter in which strict compliance with the Rules would work an injustice to the husband.
The question then arises as to what orders now should be made. Since the Registrar's orders were made on 5 September 2007 the first itemised costs account, initially served on 21 May 2007, has been re-served on 27 September 2007 and the second and third itemised costs accounts have been served on 2 October 2007.
It seems to me to be appropriate in those circumstances simply to order that the time for the service on the wife of those three itemised costs accounts be extended until today, 1 November 2007, to allow time to run from then as a fixed date.
The effect of that will be that under the Rule 19.23 the time for the wife to serve notices disputing the three itemised costs accounts will run from today, the wife having 28 days from today to do that. So, I suppose, that will be 28 November 2007. Then, of course, Rule 19.24 will come into play. Under Rule 19.24(3) either party, within 42 days after that, may ask the Court to determine the dispute by filing in the Registry both the itemised costs accounts and the notices disputing the itemised costs accounts. So, whatever is 42 days after 28 November 2007 is the date by which that must be done.

Registrar’s costs order

The next aspect of the matter is that I am asked to review also the costs order made by the Registrar on 5 September 2007 that the husband pay half of the wife's costs including Counsel's fees to be assessed unless agreed by 19 October 2007 with the amount of the wife's entitlement to be deducted from the husband's entitlement to costs ordered on 14 December 2006.
The competing arguments are these.
Mr Hoskins of Counsel, for the husband, urged that the costs order not be set aside or varied because the wife, acting reasonably, should have consented to an extension of time when twice asked by Ms Berck so that the costs occasioned on 5 September 2007 thus could have been avoided.
Ms Blattman of Counsel, for the wife, urged that the order should be set aside and the order made instead that the husband pay the whole of the wife's costs of and relating to the hearing before the Registrar on the basis that the husband is the party in default of compliance with the Rules; exercise of the Registrar’s discretion to extend time was not a given matter; thus it was incumbent upon the husband to bring the application for an extension of time; and for good reason the wife was entitled to decline her consent to the extension of time, although ultimately it was ordered.
For my part, I accept Ms Blattman's submissions and would add that whilst proper concessions in this Court are encouraged in the course of the litigation process, the costs ordered by Coleman J in the husband's favour are likely to be considerable and it seems to me to have been quite reasonable conduct thus for the wife to refuse to consent to the extension of time sought which, plainly enough, was very much against her interests. I accept therefore that the husband properly was put by the wife to the risk of bringing the application to extend time, her incurrence of costs effectively being caused by his default, amounting to a justifying circumstance for the husband to pay the wife's costs of and relating to the husband’s application before the Registrar. (Whether the husband has remedy against his former or current solicitors, in relation to the husband’s default, is a matter between them).
The costs of the review application
Application is made by the husband for the wife to pay his costs of and incidental to the wife's application for review on the basis that, basically, the review has not resulted in the dismissal of his application for extension of time filed on 26 July 2007 but the grant of that application.
As is well understood, on costs' applications the matters in s 117 of the Act must be taken into account, s 117(1) providing that, subject to s 117(2), and other matters, each party to proceedings is to bear his and her own costs, s 117(2) providing to the effect that if a justifying circumstance is made out then the Court may order such costs as it considers just, and s 117(2A) providing that in considering what order if any should be made under s 117(2) the Court must have regard to the several factors set out in s 117(2A).
In Penfold & Penfold (1980) 144 CLR 311 the High Court said at 315:
It is an accurate description of s.117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s.117(2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
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. …
In respect of the s 117(2A) matters, it is not suggested by either party that each of them does not have the capacity to pay a costs order, their assets of about $6 million having recently been divided.
It is common ground that neither party is in receipt of assistance by Legal Aid.
Principally, Mr Hoskins relies on the husband’s success in relation to the wife’s review application, rather than the other factors set out in s 117(2A).
Ms Blattman, for the wife, resists the husband's costs application and submits that on the review application there should be no order as to costs for three reasons. First, the review application related not just to the extension of time order but also the Registrar’s costs order, so that the husband and the wife each have had partial success and, in particular, the wife thus is not without success in at least one aspect of the review application. Secondly, it was put, with no criticism of the Registrar for not having given reasons which in the course of a Registrar's busy day is not usually done, nonetheless there is the fact that the wife did not have the benefit of any reasons to consider for the grant of the extension of time by the Registrar and in such an important matter was entitled, at least, to an adjudication to which necessarily would attach some reasons for judgment. Thirdly, it was put, although this is a matter of dispute, the Registrar may have given her decision before receiving submissions in reply from the wife's Counsel, which the Registrar ordered be given. However, I indicated to Counsel that I am not prepared to adjudicate on that third aspect of the matter.
In the exercise of my discretion, I refuse to make a costs order in the matter and will order that there be no order as to costs, principally for the reasons advanced by Ms Blattman (except the third matter). I acknowledge that the wife's failure in her challenge, by way of review, of the Registrar's extension of time order is the more important aspect of the matter, rather than the wife's success in achieving the result that the husband pay the whole of her costs of the proceedings before the Registrar rather than just half. However, s 117(2A)(e) provides, as a relevant factor, whether a party to the proceedings has been wholly unsuccessful in the proceedings, and certainly, in these particular proceedings today, the wife has not been wholly unsuccessful in that, plainly, she has had partial success. I am unable to be satisfied therefore that there is a justifying circumstance to order the wife to pay the husband’s costs of the review application.

HER HONOUR: Anything further?

MR HOSKINS: There's just one point of clarification, your Honour. Your Honour, with regards to the Registrar's order, you said that you'd modify it with regards to costs, the husband pay the wife's costs, not half but all?

HER HONOUR: Yes.

MR HOSKINS: Am I to understand that that is still to be - - -

HER HONOUR: 19 October? No, it's gone.

MR HOSKINS: No, no, it's still to come out of - - -

HER HONOUR: Yes. Look, thank you very, very much. Sorry I will include this in the reasons. In the order that I will make I will preserve the set off provision put in place by the Registrar. These then will be the orders:

(1)On the wife's application for a review of the orders made by Registrar Stevens on 5 September 2007 - - -

HER HONOUR: I think I should set aside all of those orders, should I not, because the time limits are gone now?

MR HOSKINS: It's most probably easier, your Honour, yes.

HER HONOUR: Yes I will. Those orders be set aside. The time for the husband to serve the itemised costs accounts will be extended until today. I will have to add a notation that they have been actually served on 27 September 2007 for the first itemised costs account and 2 October 2007 for the second and third itemised costs accounts. I will make clear therefore to everybody, so there is no mistake, they do not have to be re-served. They are served already.

I will order that the husband pay the wife's costs, including Counsel's fees, of and incidental to the husband's application filed on 26 July 2007 before the Registrar, to be assessed if not agreed, to be set off against the costs the wife must pay the husband as ordered on 14 December 2006; and that there be no order as to costs of and incidental to the wife's review application.

I publish my reasons.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly.

Associate

Date: 1 November 2007