Hunter and Hunter and Anor

[2016] FamCA 629

FAMILY COURT OF AUSTRALIA

HUNTER & HUNTER AND ANOR [2016] FamCA 629

FAMILY LAW – COSTS – Husband’s application for costs of and incidental to the proceedings against the wife and the second respondent.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Browne & Green (2002) FLC 93-115;
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225;
D & D (Costs) (No 2) (2010) FLC 93-435;
Harris & Harris (1991) FLC 92-254;
JEL & DDF (No 2) (2001) FLC 93-083;
Johnston & Johnston (2004) FLC 93-198;
Kelly & Kelly (No 2) (1981) FLC 91-108; 7 Fam LR 762;
Kohan & Kohan (1993) FLC 92-340;
Limousin & Limousin (Costs) (2007) 38 Fam LR 478;
Mallet & Mallet (1984) 156 CLR 605; FLC 91-507;
Murray & Murray (1990) FLC 92-173;
Pennisi & Pennisi (1997) FLC 92-774;
Prantage & Prantage (2013) FLC 93-544;
Robinson & Higginbotham (1991) FLC 92-209;
Stein & Stein (2000) FLC 93-004; 25 Fam LR 727;
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029.

APPLICANT: Ms Hunter

FIRST RESPONDENT: Mr Hunter

SECOND RESPONDENT: D Pty Ltd

FILE NUMBER: BRC 10255 of 2011

DATE DELIVERED: 5 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATES: 26 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson SC

SOLICITOR FOR THE APPLICANT: Condon Charles

COUNSEL FOR THE FIRST RESPONDENT: Mr Kirk QC

SOLICITOR FOR THE FIRST RESPONDENT: Hartley Healy Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Ms Wheatley

SOLICITOR FOR THE SECOND RESPONDENT: Condon Charles Lawyers

Orders

IT IS ORDERED THAT

1. Save for as it relates to the costs of the application to re-open commenced by Application in a Case filed 24 December 2013, Mr Hunter’s application that Ms Hunter pay his costs of and incidental to the proceedings is dismissed.

2. Ms Hunter pay Mr Hunter’s costs of and incidental to the Application in a Case filed 24 December 2013 (being the application to re-open) on a party/party basis in such amount as agreed between the parties or, failing agreement as to quantum, as is assessed on a party/party basis.

3. D Pty Ltd pay Mr Hunter’s costs of and incidental to that aspect of the proceedings as between Mr Hunter and D Pty Ltd, including those costs which are of and incidental to the Application in a Case filed 28 February 2014 (application to re-open filed on behalf of D Pty Ltd) but excluding the costs of and incidental to any appearance associated with the making of orders to reflect the Reasons for Judgment delivered 3 December 2015, on a party/party basis and such costs shall be paid in an amount as agreed between them or, failing agreement, as is assessed on a party/party basis.

4. All outstanding applications are otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Hunter 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 BRISBANE

FILE NUMBER: BRC 10255 of 2011

Ms Hunter

Applicant

And

Mr Hunter

First Respondent

And

D Pty Ltd
Second Respondent

REASONS FOR JUDGMENT

1. Mr Hunter[1] seeks an order that Ms Hunter and D Pty Ltd pay his costs of the proceedings in which orders were finally made on 26 February 2016. I do not intend to repeat here the findings, as recorded in the Reasons for Judgment delivered on 3 December 2015,[2] made in determining the proceedings. Rather, reference should be had to those Reasons in order properly to appreciate the context within which this application for costs is considered.

   [1]by Application in a Case filed 15 January 2016.

   [2]           as corrected by Corrigendum published on 24 March 2016.

2. It is, however, necessary to record that consideration of the submissions as to costs occurs in the context that:

   a)at trial:

   i)Mr Hunter advanced that it was just and equitable he receive property valued at between 57.5 per cent and 61 per cent of the total value of the property and superannuation interests of the parties; and

   ii)Ms Hunter advanced that it was just and equitable she receive property valued at 55 per cent of the total value of the property and superannuation interests of the parties; and

   iii)D Pty Ltd advanced that it was appropriate that Mr and Ms Hunter bear the responsibility for the CBA loan and the monies owing by the Property Trust,[3] to the Family Trust[4]; and

   iv)there were various disputes about what should be found to constitute the property of the parties and the value to be ascribed to the same; and

   b)as a consequence of the findings, reflected in the Orders subsequently made:

   i)Mr Hunter received property valued at 55 per cent of the property (inclusive of superannuation entitlements) found to have a total  value of $9,922,013.00; and

   ii)Ms Hunter received property valued at 45 per cent of the property (inclusive of superannuation entitlements) found to have a total value of $9,922,013.00; and

   iii)D Pty Ltd was required to act to discharge the CBA loan (by payment of $325,355.00), reimburse the interest repayments to CBA made on behalf of the Property Trust by the Family Trust and repay the loan owing by the Property Trust to the Family Trust (in amounts totalling $278,817.28).

   c)given the above, neither Mr nor Ms Hunter  achieved all that they sought at trial and D Pty Ltd failed completely in its claim that the Hunters be solely responsible for the CBA loan and the Property Trust’s loan from the Family Trust.

   [3]          a trust controlled by D Pty Ltd.

   [4]          a trust controlled by the husband and wife.

   Principles

3. In these proceedings, as in all under the Family Law Act1975 (Cth), the starting point in respect of costs is that each party shall bear his or her own costs.[5]

   [5] s 117(1) Family Law Act 1975 (Cth).

4. Mr Hunter submits that the Court would be satisfied there are circumstances which justify the making of an order which departs from this position and, further, that it would be satisfied that an order against each of Ms Hunter and D Pty Ltd, in the terms he seeks, is just.[6]

   [6] s 117(2) Family Law Act 1975 (Cth).

5. In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act. A number of these are of less relevance in the circumstances of this case given that:

   a)it is accepted that both Mr Hunter and Ms Hunter are in fortunate financial circumstances – even after the determination of the dispute between them; and

   b)even after paying those amounts required to be paid by the Orders, D Pty Ltd has the capacity to meet an order for costs if one is made; and

   c)none of the parties were legally aided during the proceeding and each privately funded the legal representation engaged; and

   d)it is accepted that the conduct of the parties in the proceedings had, at most, only marginal relevance to a consideration of the application for an order for costs; and

   e)it is accepted that the proceedings were not necessitated by the failure of any party to comply with previous orders of the Court.[7]

   [7] s 117(2A) Family Law Act (1975) (Cth).

6. The real focus of Mr Hunter’s application against both Ms Hunter and D Pty Ltd is on whether Ms Hunter and D Pty Ltd have been wholly unsuccessful in the proceedings, the terms of two offers made by Mr Hunter in writing to settle the proceedings and whether the circumstances attendant on these two considerations are such as to persuade the Court that the circumstances justify the making of orders for costs as sought. [8]

   [8] s 117(2A)(e) and (f), Family Law Act (1975) (Cth).

The Application against Ms Hunter

1. Mr Hunter seeks that Ms Hunter is ordered to pay:

   a)his costs of the proceedings[9] between them on a party/party basis from 27 May 2013 until the conclusion of the proceedings; and

   b)together with D Pty Ltd: his costs of the “third party proceedings” on an indemnity basis from 17 June 2013 (when the Second Respondent was joined to the proceedings) or, alternatively, on a party/party basis from that date; and that

   c)the Court assess the quantum of costs to be paid or, alternatively, order costs be paid in an amount agreed or, failing agreement, as assessed.

   [9]including the Application relating to the making of the orders to reflect the Reasons for Judgment.

   Was Ms Hunter wholly unsuccessful?

2. Ms Hunter disputes any assertion that she was wholly unsuccessful in the proceedings. It was submitted that, whilst she sought orders which would have seen her receive property with a combined value representing 55 per cent of the property and superannuation interest of the parties, Mr Hunter sought orders which would have seen him receive between 57.5 and 61 per cent of the same: given that the orders ultimately made resulted in Mr Hunter receiving property valued at 55 per cent of the property and superannuation interest of the parties, both parties were unsuccessful.

3. I am not persuaded that Ms Hunter could be thought to have been ‘wholly unsuccessful.’ As is obvious from the matters outlined above, neither Mr Hunter nor Ms Hunter succeeded in persuading me that it was just and equitable to make orders in the terms they respectively proposed. Neither achieved the totality of what was sought. Each received some of that which they sought; neither was wholly unsuccessful.

   The relevance of the offers

4. Section 117 of the Act is framed in such a way as to make it clear that offers to settle, if made seriously, should be considered seriously so as to ensure that, amongst other things, the cost of litigation is avoided.[10]

   [10]         Robinson & Higginbotham (1991) FLC 92-209 per Nygh J at p 78,417.

5. Further, the fact that an offer to settle proceedings is marginally less than the result determined by a Court does not mean that the making of such an offer is not a factor to be taken into account in determining whether to make an order for costs: this is so because the terms of s 117(2A)(f) do no limit the Court’s attention to offers which are greater than the amount awarded.[11]

   [11]         Pennisi & Pennisi (1997) FLC 92-774.

6. I accept that, whilst not applied rigidly, the closer an offer is to the award determined by the Court, (when the offer is less than the amount awarded by the Court) the more weight should be given to it in the consideration of whether the circumstances justify making an order which departs from the statutory starting point in s 117(1) of the Act. I also accept, however, that the mere fact that an offer was made of greater or equivalent value to that which results from the Court does not mandate the making of an order for costs in favour of the offeror.[12]

   [12]         Harris and Harris (1991) FLC ¶ 92-254.

7. I also accept that:

   a)it is very important for the Court to give proper consideration to written offers to settle proceedings; and

   b)in circumstances where the recipient of the offer has, at the time the offer is made, adequate knowledge to enable the offer to be given proper consideration, a failure to heed a reasonable offer is something to which very significant weight ought normally be given;[13] and

   c)a party should not reject or ignore a reasonable offer, seriously made, except as to peril as to costs.[14]

   [13]         Browne & Green (2002) FLC 93-115 at [57].

   [14]         Murray (1990) FLC 92 –173 at 78, 178.

8. I further accept that it is authoritatively established[15] that the terms of an offer to settle proceedings - which should be explicit - should also be:

   a)expressed in terms which are objectively capable of being clearly understood; and

   b)stated clearly, precisely and with reasonable certainty; and

   c)framed in plain English terms that are easy to perceive or understand and that leave no doubt as to the terms of the offer.

   [15]see, for example, Harris& Harris (1991) FLC 92-254; Johnston & Johnston (2004) FLC 93-198.

9. Of course, common sense also dictates that whether these factors are, in fact, present in any particular case needs to be considered within the context of the previous interactions between parties: after all, what may be obscure in one set of circumstances may be entirely transparent in another; what may be unclear to one person may be obvious to another, depending on the knowledge each person had at the relevant time.

10. In the present case, it is clear Ms Hunter had a significant grasp of the parties’ financial arrangements.  It is also clear that, whilst these arrangements were, to some extent at least, complex, some of the complexity arose out of decisions made by the parties’ daughters in their capacity as directors of D Pty Ltd.

11. It is also clear however, that the parties were in dispute about the value of certain items of property, such that the contents of the offers made were themselves the subject of disputed values: regard to the tables in the earlier published Reasons for Judgment demonstrates the various values contended for at various times by the husband in particular.[16]

    [16] see for example Reasons for Judgment at [46].

12. I accept that matters like these and other features of the context in which the offers were made must be taken into account when considering the reasonableness of Ms Hunter’s conduct in declining to accept either of the offers made by Mr Hunter in an attempt to resolve the proceedings without the necessity of a trial.

    The May 2013 offer

13. The first offer – made in writing by correspondence dated 27 May 2013 - proposed that Ms Hunter receive property asserted to be valued at 48 per cent of the total value of the property of the parties (reduced by notional tax and sale costs of $1,420,320.00). At trial, the value of the property of the parties was not reduced by the notional costs associated with a sale of real property.

14. On Mr Hunter’s calculations, acceptance of his proposal would have seen Ms Hunter receive property valued at $3,825,763.00.[17] She in fact received property found to have a value of $4,464,905.85. 

    [17]         Written submissions as to costs filed 15 January 2016.

15. This offer also contained the proposition that Mr Hunter have the right to farm the real property owned by D Pty Ltd until his death or sale of the same. At this time, D Pty Ltd had not been joined to the proceedings. Further, this relief was abandoned by Mr Hunter on the first morning of the trial.

    The June 2013 offer

16. Mr Hunter made a further offer in writing, by no later than 26 June 2013, to resolve the proceedings. This offer proposed that the real property owned by D Pty Ltd be sold, the sale proceeds of the same be used to repay the CBA borrowings and the Family Trust loan and that Ms Hunter receive property valued at 45 per cent of the value of the property outlined in the May 2013 offer.

    Summary of submissions made on behalf of Mr Hunter

17. It was submitted that, given Mr Hunter had previously offered to resolve the proceedings with Ms Hunter on the basis that she receive property to the value of $4,199,795.00 (the June 2013 offer) and she, in fact, was ordered to receive property to the value of $4,283,067.00, Mr Hunter’s offers should be regarded as being almost identical to that which was ultimately determined.

18. It was further submitted that, if Ms Hunter had accepted either of these offers, the need to incur the significant legal costs (said to be more than $500,000.00 each since the offers were made) expended in the prosecution of this matter would have been obviated. Additionally, earlier settlement would have enabled Ms Hunter to receive the dividends from E Pty Ltd over the last two years. The combination of these events would, it is submitted, have meant that Ms Hunter would have been substantially better off financially if she had accepted either offer.

    Summary of Submissions made on behalf of Ms Hunter

19. The following submissions were made on Ms Hunter’s behalf in opposing an order that she pay Mr Hunter’s costs of the proceedings from 27 May 2013 onwards:

    a)the Court should not deviate from the general position that parties each bear their own costs; and

    b)whilst she and Mr Hunter are each in very fortunate financial positions, her financial position is comparatively weaker to that of Mr Hunter;

    c)the position adopted by Mr Hunter at the trial in relation to the matters involving D Pty Ltd was vastly different to that adopted by him during the course of the proceedings: that is, until shortly before the commencement of the trial, he continued to seek a life interest in real property owned by D Pty Ltd – a claim which was only abandoned on the first morning of the hearing.

20. It was also submitted that, in considering whether the terms of the May 2013 are such as to persuade that the circumstances justify the making of an order that she pay Mr Hunter’s costs of the proceedings in the manner he seeks, the Court should particularly note that:

    a)the proposition that Mr Hunter be granted a life interest in the real property owned by D Pty Ltd presupposed, in essence, that it was her alter ego – a matter not pursued at trial, nor something in respect of which findings were made; and

    b)because the offer ascribed no value to the life interest Mr Hunter proposed he obtain, she was unable properly to assess and consider the impact of this aspect of it on the overall proposition for resolution; and

    c)the offer did not amount to one capable of acceptance by her but, rather, involved a proposal (the grant of the life interest to Mr Hunter) only capable of acceptance by D Pty Ltd – which was not then a party to the proceedings; and

    d)the offer also included a term that Mr Hunter receive the family dog – an aspect of the proceedings in respect of which he was ultimately unsuccessful.

21. It was also submitted that the terms of the May 2013 offer were so ambiguous – in that, for example, it did not identify the matrimonial property (which was in dispute) - as to be meaningless. This was said to be particularly significant given that offers need to be clearly framed and set out in terms capable of acceptance if they are to be given weight in determining applications for costs.

The Application against the D Pty Ltd

1. Mr Hunter seeks an order that D Pty Ltd pay his costs of the proceedings in so far as they arise out of his application that it be responsible for discharging the CBA loan, reimbursing the Family Trust for interest repayments made on behalf of the Property Trust in this respect and for repaying the monies owing by the Property Trust to the Family Trust.

2. As noted earlier, D Pty Ltd was wholly unsuccessful in its defence of these claims.

   Summary of submissions made on behalf of Mr Hunter

3. It was submitted on behalf of Mr Hunter that, by virtue of the existence of the offers referred to earlier, the Court would be persuaded that the circumstances justify the making of an order that D Pty Ltd pay his costs of this aspect of the proceedings and that the same be paid on an indemnity basis.

4. Mr Kirk QC submitted that D Pty Ltd has resources from which any costs order can be met.

5. The evidence is that, after the June 2013 offer was made, Mr Hunter incurred costs in an amount of $644,642.03.[18] Of these, his solicitor opines that 50 per cent related to the “third party” proceedings: that is, those aspects of the proceedings involving D Pty Ltd. She further opines that, if calculated on a party/party basis, the costs would be around 50 per cent of the costs actually incurred (that is, in the vicinity of $321,000.00).

   [18]         Affidavit of Ms V filed 15 January 2016 at [30]

   Summary of submissions made on behalf of D Pty Ltd

1. In seeking to resist an order for costs, Counsel for D Pty Ltd submitted that Mr Hunter is in a much stronger financial position than it and that the making of a costs order, as sought by him, would mean that the value left to the Property Trust (after meeting obligations under the orders) would be halved. This, it was said, was a matter of particular significance.

2. Further, it was submitted that, until the first morning of trial, Mr Hunter’s position was that he sought a life interest in the properties owned by D Pty Ltd. That his position only changed then was, it was submitted, particularly relevant in determining whether it was wholly unsuccessful in the proceedings: that is, his actions in abandoning a significant part of the relief he had previously sought against it should not be overlooked in determining the extent to which it was wholly unsuccessful.

3. Further, it was submitted that Mr Hunter’s reliance upon the May 2013 offer of settlement was misplaced because it was not then a party to the proceedings.

4. Insofar as Mr Hohm relied upon the June 2013 offer of settlement to provide a basis for his position that the circumstances justified the making of a costs order against it, D Pty Ltd submitted that the terms of the same were imprecise and ambiguous; the offer did not specifically address what was to happen to the balance of sale proceeds of the real property and, given the context in which it was made, it was possible to assume the balance of sale proceeds were to be included in the matrimonial property and made available for division between Mr and Ms Hunter. 

5. Such was the ambiguity of the June 2013 offer, it was submitted, that no weight ought be accorded to it in the determination of whether the circumstances justify the making of an order that it pay Mr Hunter’s costs.

   Further discussion and conclusions

6. Other than as is set out below, I am not persuaded that the circumstances justify the making of an order that Ms Hunter pay Mr Hunter’s costs of and incidental to the proceedings.

7. I have arrived at this conclusion because I am not persuaded that Ms Hunter’s refusal to accept the offers was unreasonable in all the circumstances which attended this decision.  Whilst either of the offers made in May and June 2013 would have seen Ms Hunter receive a greater percentage of the property of the parties, it cannot be forgotten that there remained a number of factual disputes about the value of some items comprising this at trial. It also cannot be overlooked that acceptance by Ms Hunter of the May 2013 offer would not have seen her receive the cash payment Mr Hunter was ultimately ordered to pay to her  - the amount of $180,250.85.  Further, Mr Hunter maintained his claim for the declaration of a life interest in specified property until the first day of trial.

8. However, I am persuaded that, other than as is set out below, the circumstances justify the making of an order that D Pty Ltd pay Mr Hunter’s costs of and incidental to that aspect of the proceedings in respect of which he successfully sought and obtained orders against it. I do so because D Pty Ltd was, in fact, wholly unsuccessful in the proceedings and I consider the June 2013 offer sufficiently certain – in all the circumstances of this case as outlined in the Reasons for Judgment I have previously delivered - to enable acceptance of it.

9. I do not accept that the June 2013 offer was so vague as to render it incapable of apprehension by those in control of D Pty Ltd. I also do not accept that because it was silent about who was to retain the balance of the sale proceeds of the real properties (once the CBA loan and the Property Trust’s loan to the Family Trust had been discharged), the controllers could not have concluded that Mr Hunter’s implied proposition was that these funds remain with it.

10. In arriving at this conclusion, I note, also, that D Pty Ltd did not rely on any evidence to seek to establish that its directors were, at the relevant time, uncertain about the terms on which the litigation in which it was involved was proposed by Mr Hunter to be compromised if his June 2013 offer was taken up.

11. I consider that the June 2013 offer made it sufficiently clear that what Mr Hunter was proposing was that the relevant real property be sold, the sale proceeds be used to extinguish the CBA loan and the Property Trust’s indebtedness to the Family Trust and the balance of the funds achieved by the sale be retained by the Property Trust.  That is exactly the consequence of the orders which were ultimately made.

On what basis should an order for costs be made?

1. If a method for calculation of costs is not specified in the order made, costs are to be assessed on a party/party basis. However, the Court may make an order for costs on a number of different bases, included within which is on an indemnity basis.[19]

   [19] Rule 19.18 of the Family Law Rules 2004.

2. Mr Hunter sought that D Pty Ltd pay his costs on an indemnity basis.

3. In Prantage & Prantage[20] the Full Court said, at [17]:

   Although the Explanatory Guide to the Family Law Rules 2004 (“the Rules”) is not formally part of the Rules, we accept as accurate its definition of “indemnity basis” when applied to a costs order as being:

   an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.

   [20] (2013) FLC 93-544.

4. It is well established that:

   a)the fact that it has been determined that the circumstances justify the making of an order for costs does not lead inexorably to the making of an order that such costs be paid on an indemnity basis; and

   b)an order for costs on an indemnity basis is a “very great departure” from the “normal standard” in this and other jurisdictions; and

   c)unless there are exceptional circumstances, an order for costs should be made on a party and party basis. [21]

   [21]Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029; Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435.

5. In Kohan[22] the Full Court acknowledged there is a discretion “in an appropriate case” to make an order for indemnity costs but said, at 79,605:

   It is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s 117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.

   [22]         Kohan & Kohan (1993) FLC 92-340

6. It was submitted on behalf of the D Pty Ltd that indemnity costs should not be ordered because the fees charged by Mr Hunter’s solicitors are significantly more than the scale – and, in some circumstances, nearly double – and that the Court would not accept the assertion that 50 per cent of Mr Hunter’s legal fees related to the issues involving D Pty Ltd when only 25 per cent of the material related to it and the evidence of its directors occupied only approximately 12 pages of a Transcript of 372 pages.

7. Having regard to these submissions and the applicable principles, I am not persuaded that the circumstances here are so exceptional as to justify the very great departure from the norm that the making of an order for costs on an indemnity basis involves.

8. Consequently, costs will be on a party/party basis.  

   Costs fixed or to be agreed or assessed?

9. Whilst it is always preferable that the parties are freed from the further costs likely to attend an attempt to reach agreement about the quantum of costs to be paid or (if agreement cannot be reached) the assessment process, I decline to make an order specifying the amount of the costs to be paid. 

10. I consider it just and appropriate, particularly having regard to the matters summarised briefly in paragraph 50, that, if agreement cannot be reached between Mr Hunter and D Pty Ltd about the quantum of costs payable, this amount be determined by a Registrar in accordance with the applicable Rules which, amongst other things, prescribe that costs payable by one party to another are to be assessed on the basis of ‘whether costs were reasonably incurred, were of a reasonable amount and were proportionate to the matters in issue’.[23]   

    [23] Rule 19.33(j), Family Law Rules (2004).

Costs of the Applications to re-open

1. Mr Kirk QC submitted that, as both Ms Hunter and D Pty Ltd were unsuccessful in their applications to re-open,[24] the Court would be persuaded that the circumstances justify the making of an order that they pay Mr Hunter’s costs of and incidental to the same. He submitted that such applications were doomed to fail and ought never to have been brought.

   [24]Application in a Case filed by D Pty Ltd on 28 February 2014;  Application in a Case filed by the wife on 24 December 2013.

2. In contrast, Ms Hunter asserted that the application was necessary, given Mr Hunter’s continued refusal to account for crops planted by him.

3. I accept the submissions made by Mr Kirk QC.  In so doing I also rely on the Reasons for Judgment I delivered in disposing of the applications to re-open.  For those reasons, I am persuaded that the circumstances justify an order that Ms Hunter and D Pty Ltd jointly pay Mr Hunter’s costs of and incidental to the applications to re-open.  I am not, however, persuaded that the circumstances are exceptional as is required to found an order that they be paid on an indemnity basis and, consequently, consider that these costs should be paid on a party/party basis.

The appearances associated with determining the form of the Order to reflect the Reasons for Judgment

1. I do not accept the submission that the circumstances justify the making of an order that Ms Hunter and/or D Pty Ltd pay Mr Hunter’s costs of and incidental to the appearances associated with the making of orders to reflect the Reasons for Judgment delivered. I consider that all parties had a role to play in the difficulties attendant upon the making of the final orders; all parties were both successful and unsuccessful in advancing various terms in which the orders should be made and all parties finally reached agreement about certain aspects of the same.

Certification as appropriate for the engagement of Senior Counsel

1. Mr Hunter was not represented by Senior Counsel at the trial. He was, however, subsequently represented by Mr Kirk QC at the appearances which attended the delivery of the Reasons for Judgment on 3 December 2015 and the making of Orders on 26 February 2016 to reflect the reasoning outlined within the same.

2. In circumstances where Junior Counsel conducted the five day trial, I decline to certify[25] that it was reasonable to engage Senior Counsel for the appearances which followed the publication of the Reasons for Judgment.

   [25] Rule 19.50, Family Law Rules (2004).

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 August 2016.

Associate: 

Date:              5 August 2016.