Jun & Genyu (No 2)
[2023] FedCFamC2F 1549
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jun & Genyu (No 2) [2023] FedCFamC2F 1549
File number(s): MLC 9353 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – Costs – husband and second respondent seek costs against the wife – wife concedes that there are circumstances that justify costs orders be made – wife seeks that no orders for costs be made – orders for wife to pay costs of the husband and second respondent Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 r 12.08, Schedule 1
Cases cited: Browne v Green (2002) FLC 93-115
Harris & Harris [1987] FamCA 7
I and I (No 2) (1995) FLC 92-625
In the Marriage of Murrayand Murray (1990) FLC 92-173
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Latoudis v Casey [1990] HCA 59
Lenova & Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity costs) (2015) FLC 93-664
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Pennisi v Pennisi (1997) FamCA 39
Robinson and Higginbotham [1991] FamCA 4
Wiedman & Page (Costs) [2014] FamCA 173
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submission/s: 22 June 2023 Place: Melbourne Solicitor for the Applicant: Robinson Gill Solicitor for the First Respondent: Zenith Lawyers and Consultants Solicitor for the Second Respondent: Oakfair Lawyers ORDERS
MLC 9353 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JUN
Applicant
AND: MS GENYU
First Respondent
MS HENG
Second Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.Within 60 days of the date of these orders the first respondent wife pay the costs of the applicant husband fixed in the sum of $7,075.00.
2.Within 60 days of the date of these orders the first respondent wife pay the costs of the second respondent fixed in the sum of $7,075.00.
3.The applications for costs by the applicant husband and second respondent be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
On 6 April 2023 I pronounced orders and published my reasons in relation to final property proceedings between the husband, the wife and the second respondent. The second respondent is the husband’s mother. I refer to Jun & Genyu [2023] FedCFamC2F 395 for the background to the matter and the reasons for the decision (the reasons).
The husband and the second respondent seek that the wife pay their costs.
The husband relies on his Written Submissions dated 3 May 2023. He seeks an order that the wife pay his costs on a party/party basis in the sum of $22,346.55 calculated on scale pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (the Rules).
The second respondent relies on her Written Submissions dated 22 May 2023. She seeks an order that the wife pay her costs on an indemnity basis in the sum of $23,370.00. Failing costs being awarded on an indemnity basis she seeks costs in the sum of $20,190.99 on a party/party basis calculated on scale pursuant to Schedule 1 of the Rules.
The wife relies on her Written Submissions dated 21 June 2023. She resists any order for costs being made against her. However, if costs orders are to be made, the wife has a primary position and a secondary position vis a vis the husband and the second respondent. Her primary position in relation to the husband and the second respondent is that she pay each of their costs in the sum of $1,883.63. Her secondary position in relation to the husband is that she pay his costs in the sum of $5,586.64, and in relation to the second respondent in the sum of $5,047.75.
I considered the parties’ Written Submissions in chambers.
For the following reasons orders are made requiring the wife to pay:
(a)the husband’s costs fixed in the sum of $7,075.00; and
(b)the second respondent’s costs fixed in the sum of $7,075.00.
THE FINAL HEARING
The final hearing proceeded over three days, being 14, 15 and 16 March 2023.
The final orders made on 6 April 2023 provided for the sale of the former family home at B Street, Suburb C and that upon settlement the sale proceeds be applied:
(a)first, to pay all costs of sale and agent commission;
(b)secondly to discharge the mortgage;
(c)thirdly, to pay the second respondent the sum of $271,254.00; and
(d)the balance to the wife.
The second respondent and her husband had advanced the sum of $271,254.00 to the husband and wife for the purpose of assisting them with the purchase of the Suburb C property. The central issue for determination at the final hearing was whether the money advanced was a loan, as asserted by the husband and the second respondent, or a gift to both the husband and wife as asserted by the wife.
I said at paragraph 3 of the reasons:
The asset pool is modest. The characterisation of the money advanced by the husband’s parents has a significant impact on the quantum of the net assets to be adjusted between the husband and wife.
The value of the Suburb C property was $1,100,000.00. The balance of the mortgage secured over the Suburb C property was $794,971.00. The net quantum of the non-superannuation assets including the money if characterised as a loan was $79,175.00. The net would have been $350,429.00 if the money advanced was characterised as a gift. I determined that the money advanced was a loan.
After the husband and wife separated in June 2020 the wife continued living in the Suburb C property with X, their daughter. The wife wished to retain the Suburb C property. However, I did not provide the wife with the opportunity to retain it as I was not satisfied she was able to secure funds to repay the loan to the husband’s parents in addition to continuing to pay the mortgage and her and X’s living expenses. The wife’s parents had been subsidising the mortgage repayments and the wife’s living expenses. Whilst the wife proposed that she obtain funds from her parents to repay the loan, her evidence in this regard was vague and uncertain.
On 31 July 2023 I made orders by consent in chambers which varied the orders made on 6 April 2023. These orders provided for the wife to retain the Suburb C property and that she pay the second respondent the sum of $271,254.00. Repayment of the mortgage, which was always in the wife’s sole name, remained the wife’s responsibility.
The wife was now able to repay the loan to the second respondent as her parents had agreed to borrow $270,000.00 on the basis of lending that money to the wife. The term of the repayment of the loan by the wife to her parents is within one month of written notice of repayment.[1]
[1] First Respondent’s Written Submissions dated 21 June 2023 at Annexure 1.
LEGAL PRINCIPLES
Section 117 of the Family Law Act 1975 (Cth) (the Act) governs the question of costs. The general rule found in section 117(1) is that each party is to bear their own costs.
Section 117(2) enables the court to depart from the general rule and to make such order for costs as the court considers just if the court is of the opinion that there are circumstances that justify it doing so. A preliminary consideration to the making of an order for costs is the court finding justifying circumstances. The discretion to order costs is a broad discretion.
When considering what order (if any) should be made pursuant to section 117(2) the court shall have regard to the matters set out in section 117(2A). The matters set out in section 117(2A) are:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
No one factor under section 117(2A) prevails over any other factor. The weight to be ascribed to each of the matters in section 117(2A) is a matter of discretion for the court.[2] There is nothing to prevent any one factor in section 117(2A) being the sole determinant for an order for costs.[3] However, the relevant matters in section 117(2A) “must all be taken into account and balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[4]
CONSIDERATION
[2] Medlon & Medlon (No. 6) (Indemnity costs) (2015) FLC 93-664.
[3] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.
[4] I and I (No 2) (1995) FLC 92-625 at [5].
Financial circumstances of each of the parties: section 117(2A)(a)
The husband privately funded his legal costs. He is in receipt of income from employment in the sum of approximately $105,000.00 per annum and a car allowance. He pays child support to the wife which at the time of the final hearing was assessed at $150.00 per week. Pursuant to the orders of 6 April 2023 he also pays one half of all out of pocket medical expenses for X. He retained a car subject to a liability and sundry other assets of nominal value pursuant to the orders of 6 April 2023.
The second respondent privately funded her legal costs. She lives in Country H. She is a retired public servant and does not receive income from employment. Pursuant to the orders of 6 April 2023 as varied by the orders of 31 July 2023 the second respondent will now have received $271,254.00 representing repayment of the loan.
The wife is in receipt of government benefits which at the time of the final hearing were in the sum of $586.00 per week, child support of $150.00 per week and half of out of pocket medical expenses for X.
X will soon turn four years of age. X lives full time with the wife. She has diagnoses of a developmental delay and Autism Spectrum Disorder. Between separation and the final hearing the husband had spent no time with X and had no communication with her since 20 November 2020. It would appear that the wife has been unduly restrictively gatekeeping the relationship between the husband and X. The wife wishes to continue her role as a parent and attend to X’s special needs. The husband does not suggest that she do otherwise.
At paragraph 127 of the reasons I said as follows:
The balance of future considerations favour the wife. Until, and if, [X] spends time with the husband, the wife will have the sole care of [X] including making herself available to ensure that [X] attends all of her specialist appointments. The wife’s income is limited until she re-engages in paid employment. It is uncertain when she will do so given [X]’s young age and the challenges facing [X].
The wife concedes, “there is a degree of opaqueness” in relation to her evidence at the final hearing in relation to the monies being transferred in and out of her bank account.[5] On the basis of the following finding, at paragraph 125 of the reasons, the wife contends that there is little basis in these circumstances to infer that these funds originated from her:
I consider that on the available evidence I am unable to find that the wife personally has access to financial resources, as inferred by Counsel for the husband, other than money already being provided to her by her parents.
[5] First Respondent’s Written Submissions dated 21 June 2023, p.2.
However, the funds did come from somewhere.
The wife’s resistance to the making of a cost order includes reliance on Wiedman & Page (Costs) [2014] FamCA 173 where it was held at [120]:
Were it not for the financial circumstances of the wife (together with another matter referred to by me hereafter), and the fact she will be the primary carer for the children, the Court would be pre-disposed to making an order against her requiring a payment relating to the costs incurred by the husband in the property proceeding from the date of his offer in May 2010. The financial circumstances of the wife and her responsibility for the ongoing care of the children to a greater extent than that of the husband, mediate against that course of action. The net funds which will be available to the wife following meeting her legal costs will be substantially less than the $131,329 which she should receive pursuant to the Court’s order. Thus the financial circumstances of the parties, when weighed by me, convince me there should not be an order for costs in the broad terms as sought by the husband (the whole of the husband’s costs from May 2010).
However, there are matters that have arisen since the final hearing which persuade me that, notwithstanding the vagueness and the lack of transparency at the final hearing in relation to the wife’s financial circumstances, the wife has the capacity to meet payment of a cost order without the need for the Suburb C property to be sold.
First, as noted already, at the time of the final hearing, the wife’s parents had been subsidising the mortgage repayments and the living expenses of X and the wife. It remained unclear at the time of the final hearing whether the wife’s parents would, or be able to, fund the repayment of the loan to the second respondent. The wife’s parents obviously could and were willing to do so, albeit in the form of a loan to the wife, having regard to the variation to the orders of 6 April 2023 made on 31 July 2023. No periodic repayments to the wife’s parents in relation to the loan are required to be made by the wife. The acquisition of the loan by the wife has not altered her weekly living expenses.
The wife contends that it is unclear whether her parents would be able and/or willing to raise and provide her with further funds in order to meet an order for costs. I am able to infer that the wife’s parents may not assist her with the payment of a costs order. The wife’s contention is equally as vague and unhelpful as her evidence at the final hearing in relation to her parents’ willingness and capacity to provide her with the necessary funds at that time. I consider that I can just as readily infer that her parents are willing and have the capacity to assist the wife to pay costs if she is required to do so.
Secondly, the funding of the wife’s legal costs at the final hearing was pursuant to the Commonwealth Family Violence and Cross examination of Parties Scheme (the Scheme). No provision for representation pursuant to the Scheme was made after the conclusion of the final hearing. As the wife does not refer to her being in receipt of assistance by way of legal aid,[6] I infer that she is not. Thus, the wife has been privately funding these costs. The wife also privately funded legal costs prior to the commencement of these proceedings.
[6] Section 117(2A)(b) of the Family Law Act 1975 (Cth).
Thirdly, the wife proposes that if a costs order be made that as a last resort the quantum be $5,586.64 to the husband and $5,047.75 to the second respondent. Accordingly, even on that basis alone I am satisfied that the wife has the capacity to fund an order for costs made against her.
Fourthly, the money advanced by the wife’s parents of $270,000.00 is $1,254.00 short of compliance with the orders of 31 July 2023. The wife thus had the capacity to fund the shortfall.
In any event impecuniosity or limited means of a party is not determinative of whether a costs order should be made where it is otherwise warranted.[7]
Whether either party has made an offer in writing to settle the proceedings and the terms of any such offer: section 117(2A)(f)
[7] Lenova & Lenova (Costs) [2011] FamCAFC 141.
A party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs.[8] The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given.[9] Offers of settlement provide litigants with an incentive to settle and thereby avoid or reduce the costs of litigation.
[8] In the Marriage of Murray and Murray (1990) FLC 92-173.
[9] Browne v Green (2002) FLC 93-115.
In Pennisi v Pennisi (1997) FamCA 39 at [2.8] the Full Court said:
…Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
The husband’s offer
On 25 May 2022 the husband made an offer of settlement in writing to the wife. There was no end date specified by which the wife was required to accept the offer.[10] The offer included that the wife pay him the sum of $200,000.00. That offer clearly provided for the wife to pay a lesser sum in order to retain the Suburb C property than the outcome she received at court as amended by the consent orders.
[10] Husband’s Written Submissions dated 3 May 2023 at Annexure B.
The asset pool identified by the husband for the purpose of his offer included the money advanced by his parents as a liability in the sum of $326,000.00.
I agree with the wife’s contentions that I must consider that at the time the offer was made the wife was unrepresented and “the second respondent had not yet intervened in the proceedings nor given evidence as to her intention to enforce the liability. Hence there was further reasonable doubt as to whether the Court would find that the liability should be deducted from the net assets of the parties in accordance with the factors discussed in Biltoft.”[11]
[11] First Respondent’s Written Submissions dated 21 June 2023 at [21].
I am satisfied that at this stage of the proceedings there was still the legitimate subject matter of the characterisation of the money advanced to be determined.
I also consider that the husband’s offer is deficient. The offer is silent as to who remains responsible for the loan, and further fails to include any indemnity to the wife in relation to the loan in the event it was the intent of the offer that the husband be responsible.
Accordingly, I consider that it was not unreasonable for the wife to not accept this offer.
The second respondent’s offer(s)
On Wednesday 8 March 2022 the second respondent made an offer in writing which provided that “by 31 March 2023, the parties jointly and severally pay the sum of $200,000.00 to our client’s nominated bank account”.[12] The offer was said to be open for acceptance until 12.00pm on Friday 10 March 2023. The trial commenced on Tuesday 14 March 2023.
[12] Second Respondent’s Written Submissions dated 22 May 2023 at Annexure 4.
The quantum of the loan in the offer to be repaid is clearly less than the quantum the wife was required to pay pursuant to the outcome of the court proceedings as varied by the consent orders.
I do not consider that the timeframe provided for acceptance by the wife was inadequate. The assets, liabilities, and issues requiring determination were clearly identified by this point in time. The second respondent had filed her material upon which she sought to rely, as had the husband. The second respondent had already provided fulsome disclosure in relation to the money advanced.
I am of the view that in those circumstances the wife would have had a clear perception of the strengths and weaknesses of her case so that the reasonableness of the offer could have been speedily assessed. There was a heightened incentive for her to respond within the time permitted as the costs of trial were to accrue imminently. Three clear business days were available from 8 March 2023 during which to prepare the matter for trial. This gave ample time to address the terms of the offer, provide advice on the offer and obtain instructions without distracting and intruding significantly on the time available for final preparation.[13] It was not a complex case. The issues were defined.
[13] Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85.
I consider, however, that the offer was not expressed with precision and accordingly it was not unreasonable for the wife to not accept it.
The offer required the parties to “jointly and severally” pay the sum of $200,000.00. This entailed the wife agreeing to an offer that the husband and wife both undertake to repay the loan jointly as well as each making a separate undertaking to repay the full amount individually. The performance by the husband of paying the money would discharge the wife’s obligation to pay. Conversely, performance by the wife of paying the money would discharge the husband’s obligation to pay. If the husband did not repay any amount in relation to the loan, then the wife would be fully responsible for the total amount, in such a scenario should the wife fail to make payment she could be sued individually for the full amount of the loan.
The second respondent’s offer had the effect of the wife potentially being solely liable for the whole amount of the loan if there was a default on the repayment pursuant to the terms of the offer. There is no evidence of any contemporaneous side agreement between the husband and the wife that they would indemnify each other in respect of the loan amount. The offer dated 25 May 2022 remained open for acceptance by the wife. It provided for a payment by the wife to the husband of $200,000.00 but contained no indemnity in favour of the wife in relation to the loan.
There was no obligation on the wife “to seek to clarify the terms” of the offer.[14]
[14] Harris & Harris [1987] FamCA 7 at [20].
The second respondent says that “Notwithstanding the time frame specified in the letter, (sic) was still open to the Wife to accept at the commencement of the Final Hearing on 14 March 2023.”[15] The wife in summary submits that there is no evidence that an extension of the offer was conveyed until 14 March 2023, and that the extension was conveyed orally.
[15] Second Respondent’s Written Submissions dated 22 May 2023 at [39].
As there is no further evidence, I am not prepared to draw an inference that the offer was extended on an earlier date than 14 March 2023. Furthermore, I have no evidence that all three parties held joint settlement negotiations other than at the door of the court on 14 March 2023. Accordingly, there is no evidence the parties discussed the division of the liability in respect of the loan amount between the husband and the wife within the broader context of the overall adjustment of the property between the husband and wife prior to 14 March 2023.
Accordingly, I consider that the first occasion on which the wife could have reasonably accepted the sum of $200,000.00 as the quantum to be repaid to the second respondent was on 14 March 2023. However, in terms of offers known to the Court, the husband in his offer dated 25 May 2023 sought that a payment of $200,000.00 be made to him by the wife made no mention of money being repaid to the second respondent, and did not indemnity the wife in respect of the loan amount.
I do not consider that the wife’s non-acceptance of the written offer(s) is a justifying circumstance. I also do not consider that in isolation her non-acceptance weighs in favour of the proposition that the making of a costs order would be just.
Conduct of the parties to the proceedings: section 117(2A)(c)
The wife conceded that her conduct was a justifying circumstance. Her conduct included the following:
(a)the wife’s evidence overall was evasive, misleading and untruthful. She fabricated some of her evidence;
(b)the wife had not come to court prepared with any information in relation to her ability to source funds to repay the loan;
(c)the wife’s evidence as to her income and financial resources was particularly confusing and misleading which required Counsel to fulsomely cross-examine her on this issue;
(d)the wife failed to make timely disclosure, at times only when such documents were called for during the running of the trial;
(e)the wife changed her instructions to her Counsel in the running of the case in relation to issues that at the commencement of the hearing had resolved;
(f)the wife failed to make appropriate concessions;
(g)the wife made allegations and assertions during her evidence that were either not mentioned or particularised in her affidavit material which required the husband to be recalled to give evidence;
(h)the evidence of the husband and second respondent in relation to the money advanced was known by the wife prior to the commencement of the final hearing; and
(i)the wife had already examined the documents provided by the second respondent by way of discovery. The wife unreasonably maintained that the quantum of the money advanced was in the sum of $200,000.00 and fulsome cross-examination was required.
I have already said that I do not consider that the wife’s non-acceptance of the written offers by 14 March 2023 in isolation weigh in favour of supporting that the making of a costs order is just. However, there was an opportunity to settle the matter on 14 March 2023, 15 March 2023 and/or 16 March 2023. All parties were present to enable negotiations to take place. The husband and the second respondent at all times made bona fide and genuine efforts to resolve the matter; the issues requiring determination were narrow, all trial material had been filed and discovery from the second respondent completed. The wife had the ability to assess the overall likelihood of success in relation to all the orders she sought after the first day of evidence, 14 March 2023, and on the subsequent two days.
The wife’s conduct during the proceedings elongated the length of the final hearing. Accordingly, the costs of the husband and second respondent were unnecessarily increased. As the wife was funded by Victoria Legal Aid pursuant to the Scheme, the cost to the public purse unnecessarily increased. The elongation of the final hearing caused the resources of the court to be used unreasonably and disproportionately.
I am satisfied that the conduct of the wife is a justifying circumstance weighing in favour of costs orders being made against the wife.
Whether any party has been wholly unsuccessful in the proceedings: section 117(2A)(e)
The wife was wholly unsuccessful in establishing that the money advanced by the husband’s parents was a gift. The husband and second respondent were wholly successful in establishing that the money was advanced as a loan. The wife was also wholly unsuccessful in obtaining an order for lump sum spousal maintenance. However, that is not the test.
In Robinson and Higginbotham [1991] FamCA 4 Justice Nygh considered the meaning of “wholly unsuccessful” and observed that the term is aimed at “a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed”.
I am satisfied that the wife was not wholly unsuccessful. Both parties sought an adjustment of their property. The wife’s application was not without merit. The wife’s proposal included that she retain the furniture, the household electrical appliances, and her bank accounts, whilst the husband retain his collectables, Motor Vehicle 1 and his bank accounts. The orders provided for that outcome. Thus, the wife was not wholly unsuccessful. I consider that just because the husband’s proposal also included the same “keep” to each party as in the wife’s proposal does not militate against the wife not being wholly unsuccessful.
Accordingly, an argument advancing the contention that the making of a costs order is just must fail on the ground that the wife was wholly unsuccessful.
A party’s failure to comply with previous orders: section 117(2A)(d)
The proceedings were not necessitated by the failure of any of the parties to comply with previous orders of the court.
Such other matters as the Court considers relevant; section 117(2A)(g)
No other matters were addressed by the parties.
CONCLUSION
The wife concedes there are circumstances justifying that she pay the costs of the husband and the second respondent. She acknowledges that her conduct is to be considered.
The husband relies in particular on the conduct of the wife and that his submissions in relation to section 117(2A)(a), (b), (c) and (e) serve to highlight the impropriety on the part of the wife in failing to accept his offer.
The second respondent relies heavily on the wife’s conduct and her offer(s) to the wife.
I have considered the matters in section 117(2A) separately. I place considerable weight on the conduct of the wife, as do the husband and the second respondent, and the wife’s concession. I also place weight on the financial circumstances of the wife.
Considering the matters in section 117(2A) collectively, on balance, I am satisfied that in all the circumstances that orders for the payment of the costs of the husband and second respondent are just.
Costs orders are made to compensate the other party in relation to expense to which he or she has been put by reason of the legal proceedings.[16] I consider that the conduct of the wife elongated the length of the final hearing. Accordingly, the husband and second respondent were put to unnecessary expense as a result of her conduct.
[16] Latoudis v Casey [1990] HCA 59.
I do not consider that the overall “opaqueness” in relation to the wife’s financial circumstances both during the final hearing and within these submissions balanced against her conduct, in all of the circumstances, precludes a finding that it is just to make costs orders in favour of the husband and second respondent.
The husband seeks that if a costs order is to be made in his favour, the wife pay his costs in the sum of $22,346.55 calculated in accordance with Schedule 1 of the Rules.
The second respondent’s primary position, if a costs order is to be made in her favour, is that the wife pay her costs on an indemnity basis in the sum of $23,370.00. Her secondary position is the sum of $20,190.99 calculated in accordance with Schedule 1 of the Rules.
Having regard to my overall assessment of the matters in section 117(2) I am satisfied that the wife should pay the costs of the husband and second respondent of the second and third day of the final hearing, namely 15 and 16 March 2023.
In accordance with Schedule 1 of the Rules and as set out in Annexure D of the husband’s Written Submissions the quantum required to be paid to the husband by the wife in relation to costs is $7,075.00 (rounded) comprising:
(a)$3,768.84 being Counsel’s fees for one full day on 15 March 2023;
(b)$1,883.63 being Counsel’s fees for half a day on 16 March 2023; and
(c)$1,422.04 being preparation for an additional day after the second day. The matter was originally listed for final hearing with an estimate of two days duration.
The principle that indemnity costs should only be made in exceptional circumstances and that there must be some special or unusual feature in the case to justify costs being so awarded is well established by the authorities. I do not accede to the second respondent’s contention that the wife should pay her costs on an indemnity basis as I am of the view that there are no exceptional circumstances or special or unusual features in this case to justify costs being awarded on an indemnity basis. I accept and agree with the submissions of the wife in paragraph 30 of her Written Submissions which are as follows (footnotes omitted):
It is likewise contended that in this case the allegations made by the wife regarding the quantum of the loan, and whether or not it was a loan, are allegations of the type to be expected in property division proceedings involving an intervener seeking the repayment of an alleged loan. It is not uncommon for the Court to find that one litigant or another to be an unimpressive witness or to have embellished their evidence or given untruthful evidence. Similarly, it is not uncommon for a party to make imperfect financial disclosure, especially when self-represented. It is submitted that this case is devoid of any special or unusual feature such as would warrant a departure from the usual course.
Accordingly, the quantum required to be paid to the second respondent by the wife in relation to costs is also $7,075.00 (rounded) pursuant to Schedule 1 of the Rules.
I consider that the quantification of costs in accordance with Schedule 1 of the Rules is fair, reasonable and proportionate for the purposes of rule 12.08 of the Rules.
The wife proposed that if orders for costs were to be made then the payment be made within 28 days, albeit she sought that a lesser sum be paid than as determined by me. Given the time of year and that I have determined a greater amount be paid, I provide for the wife to pay the costs within 60 days.
Orders are made as set out.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 6 December 2023
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