Jensen and Jensen
[2015] FCCA 2721
•8 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JENSEN & JENSEN | [2015] FCCA 2721 |
| Catchwords: FAMILY LAW – Costs – indemnity costs – statutory right – right pursuant to costs agreement. |
| Legislation: Family Law Act 1975, s.79 |
| Applicant: | MS JENSEN |
| Respondent: | MR JENSEN |
| Third Party: | MS HOLLAND (Trading as (omitted)) |
| File Number: | BRC 11746 of 2011 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 10 August 2015 |
| Date of Last Submission: | 10 August 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 8 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fisher |
| Solicitors for the Applicant: | (direct brief) |
| The Respondent’s appearance having been excused. |
| Solicitors for the Third Party: | Thomson Greer |
ORDERS
That the respondent pay the third party’s costs on an indemnity basis of:
(a)Their costs;
(b)Costs incurred from Thomson Geer;
(c)Costs of the lodging of the caveat and relevant security interests;
(d)Costs of and incidental to the application in a case filed on 23 July 2015; and
(e)Costs of any releases and discharges under the order of 24 July 2015
to be agreed or otherwise to be assessed.
That within fourteen days of the date of this order, the applicant wife file and serve written submissions in relation to any costs sought.
That the respondent husband file and serve any written submission in response, within a further fourteen days.
That this matter be listed for judgment at 9.30am on 25 November 2015 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Jensen & Jensen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11746 of 2011
| MS JENSEN |
Applicant
And
| MR JENSEN |
Respondent
| MS HOLLAND (Trading as (omitted)) |
Third Party
REASONS FOR JUDGMENT
Introduction
This is an application by the third party for an indemnity costs order. The third party is Ms Holland trading as (omitted). (omitted) were the respondent husband’s former solicitors.
The Material
The husband relied upon the following material:
a)The husband’s affidavit filed on 7 August 2015;
b)The husband’s affidavit filed by leave on 10 August 2015; and
c)The husband’s submissions filed by leave on 10 August 2015.
The third party relied upon the following material:
a)The application in a case filed by the third party on 23 July 2015;
b)The affidavit of Ms H filed on 23 July 2015;
c)The affidavit of Ms H filed on 23 July 2015;
d)The written submissions of the third party filed on 28 July 2015;
e)The affidavit of Ms H filed on 30 July 2015;
f)The affidavit of Ms H filed on 7 August 2015; and
g)The affidavit of Ms H filed by leave on 10 August 2015.
Background
The proceedings in this matter related to an application for an adjustment of property rights under s.79 of the Family Law Act 1975 (Cth) (as amended) (“the Act”) (FLA). The parties to the principal proceedings were the applicant wife, Ms Jensen and the respondent husband, Mr Jensen. It is against Mr Jensen that the third party seeks the indemnity costs order.
The husband and wife obtained a consent order in relation to the property matter on 23 April 2015. The third party had no knowledge of that consent order, because the third party had ceased to act for the husband prior to the consent order.
The resolution of the property matter involved the husband transferring his interest in certain real property to the wife in return for a sum of money ($210,000).
There is no dispute that the husband is indebted to the third party, his former solicitors. This matter was brought before the Court as a matter of urgency on an application in a case, filed on 23 July 2015. The matter was listed on 24 July 2015 and on that occasion the parties resolved the substantive issue in relation to the payment of fees owed to the third party by the husband and that sum was fixed. The only issue that remained for determination was whether the husband should pay the third party indemnity costs in relation to their application filed on 23 July 2015 and other associated costs.
It was not possible to determine the matter on 24 July 2015 and orders were made for the husband to file a response and affidavit. The matter was listed on 10 August 2015 to hear submissions in relation to the costs issue.
The Issues in Dispute
The issues in dispute are as follows:
a)The construction of various clauses in the retainer contract (“the retainer”) signed by the third party and the husband;
b)The service of the prior notice in relation to the application in a case and whether the service by email compromises the third party’s claim;
c)The timing of the application in a case - was it premature; and
d)Should the Court order indemnity costs.
The Construction of Various Clauses in the Retainer Contract
The third party and the husband entered into a written costs agreement on 14 June 2012. The third party at paragraph 9 of their written submissions filed on 28 July 2015 note:
“The Third Party represented the Respondent in the within proceedings under a written Costs Agreement dated 14 June 2012 (called “the Agreement”), the material terms of which provide:-
a) Clause 5- the Respondent would pay the Third Party fees for its services at the rates set out in that Clause;
b) Clauses 13-15 and Clause 2 of Schedule 2- the Respondent would pay and/or reimburse the Third Party for all expenses and disbursements incurred as a necessary incident of the retainer including barrister’s fee;
c) Clauses 31-34 and Clause 3 of Schedule 2- the Third Party was granted a lien, (inter alia, to secure the obligations owed by the Respondent to the Third Party in respect of the Third Party’s costs and disbursements), over money recovered through the settlement of litigation, trust moneys and money which is in Court.
d) Clause 35- the Third Party was granted, inter alia, a charge over all real and personal property, including after acquired property, in which the Respondent has or shall acquire an interest, to secure the payment of the obligations owed by the Respondent to the Third Party under the Agreement.
e) Clause 1 of Schedule 2- save as otherwise provided, the Third Party will defer its full entitlement to be paid its professional fees until the proceeding is earlier compromised.
f) Clause 3 of Schedule 2- if the Agreement was terminated by the Respondent or by the Firm prior to finalisation of this matter, all legal services provided to that date and expenses and disbursements would be paid in full at that time;
g) Clause 9 of Schedule 2- inter alia, if legal action is required to recover unpaid obligations, the Respondent will indemnify the Third Party of any costs incurred by it in recovering those fees; and
h) There was no reference, or implied term, that section 18(5) PPSA did not apply[1].
The Lien
[1] Section 18(5) PPSA: “A security interest is taken to secure reasonable expenses in relation to the enforcement of the security interest, unless the parties agree otherwise.”
“Lien over Proceeds
31. Without limiting the Firm’s other rights, the Client grants the Firm a lien in respect of the Firm’s costs and disbursements over money recovered through obtaining judgment in litigation; over money recovered through the settlement of litigation; over the amount of any order for costs in favour of the client; over money which is in the possession of the firm, including trust moneys; and over money which is Court.
32. This lien remains effective after termination (for any reason) of the retainer.
33. In the absence of any lien, the Firm will, on completion of the work, return any paperwork to which you are entitled upon your written request of same, and keep the file in its possession (except documents deposited into the Firm’s safe custody) for no more than 6 years, and on your Authority hereby given that the Firm is at liberty to destroy your file 6 years after the date of the final bill rendered to you by the Firm in this matter”
34. You may however request that upon the completion of your matter, or prior to the expiration of 6 years after the date the final bill is rendered to you by the Firm, that your file be returned to you and in that instance the Firm is at liberty to charge you photocopying fees in accordance with clause 11 herein.”
The counsel for the husband submits that clauses 31 and 32 apply only to the fruits of litigation where the third party is the lawyer responsible for getting the judgment in the litigation. In the present case the retainer was terminated by Mr Jensen on 11 March 2013. I do not accept that submission by counsel for the Husband. Clause 32 on its face clearly indicates that the lien remains effective after termination (for any reason) of the retainer. Therefore, I am satisfied that the third party has a lien over the husband’s property. However, there is a much broader charge that the third party also has over all real and personal property, including after-acquired property that is set out in clause 35:
“Charge
35. The Client hereby grants to the Firm a charge over all real and personal property, including after-acquired property, in which the client has or shall have an interest to secure the payment of any account not paid within the time set out in clause 23.”
Special counsel for the third party submitted that clause 35 is also a security interest, but it is over a much broader category of collateral. It is over all consumer type property and all commercial type property under the Personal Property Securities Act (Cth) 2009 (“PPSA”), which the respondent husband may have either now or in the future. From the time that the retainer agreement was signed that charge was created. It is not conditional upon default. I accept that that is the case.
Section 151 of the PPSA provides:
“A person has a right to lodge a finance statement (that is a registration) when they hold, or reasonably believe, that they will become entitled to hold a security interest.”
I accept the submission as at June 2012, which was after the date of the commencement of the Personal Property Security Registry (30 January 2012) that both clause 31 and clause 35 created security interests for the purpose of the PPSA.
The Deferred Fees
Clause 22 of the retainer relevantly provides:
“22. Clause 7 of Schedule 2 Deferred Fee Terms explains the circumstances in which we will send our account or accounts”
Schedule 2 sets out the terms of the deferred fees. Relevantly clause 1 of schedule to provides:
“1. Save as otherwise provided in this Deferred Costs Agreement, the Firm will defer its full entitlements to be paid its professional fees until:
1.1 final judgment/order has been entered in the proceeding; or
1.2 the proceeding is earlier compromised”
Clause 3 provides:
“3. If our retainer is terminated by you or by the Firm prior to finalisation of this matter, all work done to the date the termination will be paid in full at that time. The Firm is entitled to exercise a lien over any documents in our possession until our fees are paid. We also refer you to paragraphs 30 and 31 of this Deferred Costs Agreement.”
Clause 8 provides:
“8. The Firm will provide invoices for professional fees to the client from time to time. Upon issue, those invoices are due and payable but the Firm will not seek to recover fees in excess of the amount paid by the client under clause 2 of this Schedule until:
8.1 the Firm’s fees become payable under clauses 5 or 6 of this Schedule; or
8.2 for the purposes of determining the quantum of the Firm’s costs under clause 7 of this Schedule; or
8.3 For the purposes of assessment under clause 7 of this Schedule; or
8.4 the client receives property or cash by way of settlement of the family law property dispute.”
Counsel for the husband argued that the present recovery action was premature and in breach of the retainer. Counsel argued that even though the retainer was terminated by the husband on 11 March 2013, there are provisions of the retainer that continued to operate post-termination, including schedule 2, the deferred fee terms. He argues that the right to have the fees differed continues to operate despite Mr Jensen having terminated the retainer. I do not accept that that is the correct interpretation of schedule 2. Clause 3 clearly provides that if the retainer is terminated by the husband prior to the finalisation of the matter all work done to the date of termination will be paid in full at that time.
I am satisfied that the fees became due and owing as at the date of termination of the retainer by the husband.
Conclusion
I am satisfied that the third party had a right pursuant to clause 35 of the retainer to register the security interest under the PPSA, as at the date that the retainer was entered into by the husband and the third party. The lien was also a security interest under the PPSA that remained effective after termination. I am satisfied that all of the fees became due and owing at the time that the retainer was terminated by the husband, as provided in clause 3 of schedule 2 of the retainer. I am satisfied that clause 8 of schedule 2 only operates during the currency of the retainer.
The Service of the Notice of the Application in a Case
I note that the third party forwarded an email to the husband to notify him of their intention to file the application in a case. The affidavit of Ms H filed 23 July 2015 (23 pages) referrers to an email she received from Mr Mills, special counsel of Thomson Geer Lawyers, engaged to undertake the enforcement steps. The email with various documents that Mr Mills sent to Mr Jensen on 20 July 2015, included a letter dated 26 June 2015, notifying Mr Jensen that unless he contacts Thomson Geer within seven days instructions would be sought to commence the appropriate enforcement action without further notice. The email address Thomson Geer allegedly sent the email to on 26 June 2015 and 20 July 2015 was: (omitted)
Counsel for the husband argues that clause 50 of the retainer requires that service of documents and notices may be affected between the parties, meaning the third party and Mr Jensen, by mail. The relevant provision relates to the service of documents, and is a deeming provision that effectively creates the last known mailing address of the client, as recorded in the files, as the address the firm is entitled to forward documents to. Service is deemed to have occurred on the day the documents would be received in the ordinary course of the post if the correspondence is sent to that address. In my view it is a “may” provision, not a “must” provision. It does not mandate that the documents have to be served that way, and it is contrary to the way business is done in the present day, where the majority of communication is by email.
Paragraph 10 of the submissions of counsel for the husband provides:
“1. It is the evidence of Mr Jensen (affidavit sworn 10 August 2015, by leave):
A. That Mr Jensen did not receive that 20 July 2015 email;
B. That Mr Jensen did not receive a letter from Mr Mills attaching copies of the attachments to the 20 July 2015 email;
C. That Mr Jensen has had problems with his server relating to his email account (omitted)for approximately a month in June and July 2015;
D. That at no stage before 23 July 2015 did Mr Mills telephone him to enquire concerning the material said to have been forwarded to him earlier by Mr Mills on behalf of the Third Party;
E. That the first time Mr Jensen knew of the hearing on Friday, 24 July 2015 was when he was personally served with the Application in a Case by Third Party at his home address on the afternoon of Thursday, 23 July 2015.”
It was submitted by counsel for the husband that no order has been made providing for service of documents upon Mr Jensen by email. I am not persuaded that the retainer mandated that service had to be by mail, but rather provided that it could be by mail, and if it was, it in effect amounted to a deemed service at the last known address of the husband.
I accept that I am not in a position to make any findings of fact and Mr Jensen’s position is that he did not receive the emails sent by Mr Mills. There was no requirement under the retainer for Mr Mills to provide that information to Mr Jensen. I consider that it was done to try and avoid litigation, rather than because it was necessary.
The necessary step, which was the service of the application in a case, was performed by personal service as evidenced by the husband in his affidavit.
I am not persuaded that the use of an email rather than post creates a bar to enforcement or creates a situation where the filing and service of the application in a case was premature because of the failure to notify the husband of their intention to do so. The third party had a right to file the application in a case, they did not have to notify Mr Jensen that they intended to do so. The notice goes to their reasonableness in trying to save costs.
The Timing of the Application in a Case
It is argued on behalf of the husband that the third party’s application in a case was premature and in breach of the retainer. Counsel for the husband submits that clause 1 of schedule 2 determines the timing of the liability to pay the husband’s professional fees.
It is argued on behalf of the husband by his counsel that clause 3, which provides that if the retainer is terminated by the husband, all work done will be paid in full at that time, is contrary to clause 8, which provides that the firm will provide invoices for professional fees to the client from time to time, and upon issue those invoices are due and payable, but the firm will not seek to recover those fees until a certain event has occurred. In this case it is the client receiving property or cash.
I do not accept that interpretation of the schedule. I am satisfied that at the date of termination of the retainer the fees became owing and had to be paid. Clause 3 can be read consistently with clause 8, because the operation of clause 8 is during the currency of the retainer. Clause 3 operates upon the termination of the retainer.
Counsel for the husband submits that the payment of the $210,000 owing to Mr Jensen had not occurred yet, and therefore there was no need for the third party to proceed at that stage, because they had no indication that Mr Jensen was going to default.
Mr Jensen at no time from when he terminated the retainer in March 2013 until the application in a case was filed, provided any information whatsoever to the third party about the state of the litigation or the fact that consent orders were entered into by the parties. He did not inform the third party that he was about to receive the sum of $210,000 or when the settlement was to occur.
The third party was informed of the imminent settlement of $210,000 upon the husband from another source. The third party had a present entitlement to their fees and I am satisfied that they were therefore not premature in bringing the application to Court. I note that the third party placed a caveat on the property which would have inevitably prevented the settlement form proceeding. In my view, in the absence of some agreement forthcoming from the husband the third party was entitled to seek an order of the Court pending the settlement of the property to ensure the payment.
I note that the husband entered into consent orders with respect of the payment of the fees owing on the first return date of the application in a case. However, I am satisfied that the third party was entitled to bring that application. That may not have been the case if Mr Jensen had elected to notify them and keep them apprised of the progress of the litigation.
Indemnity Costs
I note clause 9 of schedule 2 provides:
“9. If legal action is required to recover unpaid fees, you will indemnify the Firm for any costs incurred by it in recovering those fees, except where this would conflict with the Legal Profession Act 2007 or other legislation”
In clause 9 the husband agreed that if legal action was required to recover unpaid fees, the husband will indemnify the firm for any costs incurred by it in recovering their fees except where this would conflict with the Legal Profession Act 2007 or other legislation.
I accept that it was prudent for the third party to lodge a caveat given the lack of notification by Mr Jensen as to the progress of the litigation as between the husband and the wife. The caveat required the third party to commence Court proceedings within three months to maintain the caveat.
I note that the letter written by the third party on 26 June 2015 indicated that the cost of the enforcement would be likely to be $30,000. I note that Mr Jensen says he did not receive that letter. There were no responses to the email and in my view, it was appropriate to initiate the litigation.
I accept that paragraphs 10 and 11 of the third party’s submissions (including footnotes) set out herein accurately summarize the position of the third party in relation to the firms security interest.
“Indemnity costs by virtue of the Agreement and (by virtue of granting security interest) section 18 PPSA/ Override section 117 FLA general rule.
10. By the terms of the Agreement the Respondent expressly granted the Third Party:
(a) A lien over money obtained by the Respondent from the proceedings, whether by a settlement or Order[2]; and
[2] Clause 31 and 32
(b) A charge over any interest of the Respondent in any real and personal property (including- after acquired property)[3]
To secure the obligations owed by the Respondent to pay the firm’s costs and disbursements and any account.
11. The Agreement, by its terms and having been signed by the Respondent, constitutes:
(a) A sufficient memorandum in writing to grant an equitable charge (being an equitable mortgage) over the Respondent’s interest in the real property[4].
(i) On 26 June 2015 the caveat (dealing number (omitted)) was lodged by the Third Party against the Respondent’s interest in land[5] to ensure its priority over the Respondent’s interest in such land;
(ii) Such interest is one by which by virtue of the terms of the Agreement, the Third Party became a secured creditor over such interest of the Respondent in the property;
(iii) the settlement envisaged by the current form of the Consent Orders could not occur without the Third Party providing a withdrawal of caveat[6];
[3] Clause 35
[4] Section 59 Property Law Act 1974 (Qld) provides: “No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be changed, or by some person by the party lawfully authorised.”
[5] See Annexure H to the affidavit of Ms H.
[6] Lodgement of the caveat prevents registration of an instrument affecting the lot until the caveat lapses or is withdrawn, removed or cancelled. S.123 PLA, s.124(1)PLA. Notwithstanding lodgement of the caveat of the following can be registered: (1) an instrument specified in the caveat as an instrument to which the caveat does not apply; (2) an instrument which the caveator consent to registration of.
(b) And:
(i) Is a “security agreement[7]”granting “security interests” (being such a lien and charge) to the Third Party[8];
[7] Entered into after 30 January 2012, being the “registration commencement time” (see section 10 and 306 PPSA) and being when the PPs registry commenced operations to the general public and so declared by the then Minister; See sections 10 and 307 Personal Property Securities Act 2009 (PPSA) def’n of “security agreement” and “transitional security agreement”; see section 12(1) and (2) and 308 def’n of “security interest” and “transitional security interest”; see section 20(2)(a)(i) and (b)(ii) as to; see section
[8] Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Company Arrangement)(Deed Administrators Appointed) & ors [2011]NSWSC 1425 (23 November 2011)
(ii)Was granted over all “consumer” and “commercial” type “personal property” of the Respondent;
(iii) Is in “all present and after acquire property – no exceptions” collateral class of each of the above types of personal property of the Respondent, including the entitlement to receive the payment at the settlement[9];
(iv)Such security interest “attached[10]”to the “collateral” as it became enforceable upon execution and by virtue of the terms of the Agreement on 14 June 2012 and/or commencement of provision of the Services (being “value” by way of consideration)[11];
(v)Such security interests are enforceable in priority to the interests of any others, including that (if any) of the Applicant as they are and have been “attached” at all times since execution of the Agreement.
[9] Commissioner of Taxation v John Park [2012] FCAFC 122
[10] See s.19 PPSA
[11] Pozzebon (Trustee)v Australian Gaming and Entertainment Ltd, in the matter of Australian Gaming and Entertainment Ltd (in liq) (includes Corrigendum dated 29 September 2014) [2014]FCA 1034 (24 September 2014)
It is argued that the third party’s legal costs are the costs of:
·Both the internal and external lawyers;
·Lodging the caveat;
·The security interests;
·Of and incidental to the application in a case;
·Providing necessary releases and discharges under the 24 July 2015 Order.
It is submitted they are “reasonable expenses” and the third party is entitled to recover them on an indemnity basis.
Section 18(5) PPSA creates a statutory right to “reasonable expenses” in relation to enforcement of a security interest in favour of the third party.
The third party submits:
“Courts which have considered the application of similar terms and laws are the Federal Court, High Court, and the South Australia Full Court. No Federal Circuit Court, Family Court or other Courts’ decisions could be located which had considered such terms under the PPSA.
(f) The term “enforcement expenses” was considered by the South Australia Full Court in Perpetual Trustees Australia Ltd and Ors v Barker13, where:
13 [2004]SASC 58; leave to appeal to High Court refused- see Barker v Perpetual Trustees Australia Ltd & Anors [2005] HCATrans 826 (7 October 2005)
(i) it was provided for in the previous Credit Code:
Schedule 1 of the Code defines “enforcement expenses” as including:
expense incurred by the mortgage in preserving or maintaining property subject to the mortgage (including insurances, rates and taxes payable for the property) but only if the expenses are incurred after a breach occurs and are authorised by the mortgage.”
(ii) As to the contractual right to indemnity costs of enforcing its security as a chargee/ mortgagee over land, included defending claims by the mortgagor attacking such security, and where Duggan, J observed that:
[33] In my view, there is no basis for confining the words in cl7.2 of the mortgage “all reasonable enforcement expenses and the Mortgagee reasonably incurs or expends in exercising its rights under the Mortgage: to expenses incurred in actions or procedures initiated by the mortgagee in contradistinction to responses by the mortgagee to actions or procedures instituted by the mortgagor to prevent the enforcement to rights by the mortgagee14.
14 And so the Third Party’s costs of successfully opposing in the application buy the Applicant to obtain an immediate withdrawal of the caveat in tis Response were also “enforcement expenses”
[…]
[37] If it is assumed that enforcement expenses include the expenses incurred in contesting an application under s 55A(3), then it could not be said that, as a matter of course, such expenses would be unreasonable. Such a judgment could only be made on the fact of the individual case. In the present case, there is no basis for holding that the defence of the mortgagor’s application was unreasonable. The court held that the application was without merit.
(iii) It was stated as to the court’s discretion as to such costs clauses, that the clause in question was not ambiguous, and so the mortgagee was entitled to indemnity costs:
[..]
[19] It is common practice for mortgages and associated agreements to include covenants and terms of this type, thus rendering it necessary for courts to consider the interaction between such agreements and the discretionary power to award costs.
[20] In Gomba Holdings (UK) Ltd v Monories Finance Ltd [1993] Ch 171 at 194 the Court of Appeal, whilst recognising the discretionary nature of costs orders, held that where there is a contractual right to costs, the discretion should ordinarily be exercised so as to reflect that right.
[21] This approach was followed by the Full Court in Citibank v Pirrotta & Ors (Full Court of Supreme Court of SA, 1 April 1998, unreported) with the qualification that the mortgagee should be limited to party and party costs unless the mortgage contract plainly and unambiguously provides for taxation on some other basis.
(see also Re Shanahan (1941 58 WN (NSW) 132 at 134; Re Adelphi Hotel (Brighton) Ltd [1953] 1 WLR 955 at 961; Elders Trustee & Executor Company Ltd v EG Reeves Pty Ltd (1988) 20 FCR 164)
[22] The effect of clauses bestowing such rights on mortgagees will depend upon their interpretation in each case and they will not be given effect so as to place mortgagors in a less favourable position than would otherwise be the case unless they are unambiguously expressed.
(g) the ordinary meaning of the word “reasonable expense” were held to include legal costs on an indemnity basis15, when considered in the context of a registered mortgagee of land joined as a party to proceedings, and who was seeking to protect its rights over the subject land. The mortgage itself (covered by the then Credit Code), did not define the meaning of such term, but provided that:
When we ask, you must pay us the reasonable expenses we reasonable incur in enforcing this mortgage after you are in default. […]
(h) Given the authority and force of these decision as to the court’s discretion not arising unless an ambiguous provision arose, consideration of the Agreement, the unambiguous express statutory right granted by section 18(5) PPSA the rights of distribution under section 141 PPSA (the PPSA being another and more recent Commonwealth Statue than the FLA), and that below, it is submitted that section 117 FLA general rule of no order as costs does not apply, and that indemnity costs are the appropriate scale of costs.
15 Van Der Velde v Ng [2011] FCA 594 citing and adopting Perpetual Trustees Australia Ltd and Ors v Barker [2004] SASC 58
I accept that submission. I will therefore order that the husband pay the third party’s costs on an indemnity basis in relation to their legal costs, the costs of Thomson Geer, the costs of lodging the caveat and relevant security interest, and the costs of an incidental to the application in a case filed 23 July 2015, and any release and discharge under the order of 24 July 2015.
I will notify the applicant wife of these decisions and give her fourteen days to file submissions in respect to any costs she seeks.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 8 October 2015
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