Lamb and Menotti (No. 2)
[2018] FamCA 1010
•4 December 2018
FAMILY COURT OF AUSTRALIA
| LAMB & MENOTTI (NO. 2) | [2018] FamCA 1010 |
| FAMILY LAW – COSTS |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 Harris & Dewell & Harris (No. 2) [2018] FamCAFC 180 Lamb & Menotti [2018] FamCA 278 Menotti & Lamb and Ors [2017] FamCA 918 Munday v Bowman (1997) FLC 92-784 NMFM Property Pty Ltd v Citibank Ltd(No 2) (2001) 109 FCR 77 Penfold v Penfold [1980] HCA 4 Prantage & Prantage [2013] FamCAFC 105,(2013) FLC 93-544,(2013) 49 Fam LR 197 |
| APPLICANT: | Mr Lamb |
| RESPONDENT: | Ms Menotti |
| FILE NUMBER: | ADC | 465 | of | 2008 |
| DATE DELIVERED: | 4 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | By way of Written Submissions |
SUBMISSIONS RECEIVED FROM
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler Barristers & Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Starke Lawyers |
Orders
The wife contribute towards, and pay, 2/7 of the husband’s costs calculated for the period from 14 June 2017 until the last day of trial by agreement as to the amount and failing agreement, as assessed.
The application in a case filed 8 December 2017 and the response thereto filed 1 November 2018 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 Lamb & Menotti (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: ADC 465 of 2008
| Mr Lamb |
Applicant
And
| Ms Menotti |
Respondent
REASONS FOR JUDGMENT
On 14 November 2017, in making final property orders between Ms Menotti (“the wife”) and Mr Lamb (“the husband”) along with some other corporate entities as respondents, I ordered as a conclusion of all outstanding proceedings that, save as to costs, all applications were otherwise dismissed[1].
[1] Published as Menotti & Lamb and Ors [2017] FamCA 918
On 8 December 2017 (and therefore within time as prescribed by ch 19 of the Family Law Rules 2004 (Cth)(“the Rules”)) by application, the husband sought costs in the sum of $81,641.33 of and incidental to the following:
a)The proceedings from 14 June 2017 (incorrectly described as 2007 in the submissions) being the date of service of the case outline document of the husband;
b)The application for interim orders filed on 20 July 2016 including all hearings in relation thereto; and
c)The husband’s contravention application filed 31 August 2016 including all hearings in relation thereto.
This costs application of the husband was listed before a registrar in Adelaide on what appears to have been 6 August 2018, but I suspect was meant to be 6 March 2018. Whatever was correct, it was brought before the registrar on 13 March 2018, on which day, the parties’ solicitors appeared. By that date, notwithstanding three months had gone by, the wife had not filed any response. The registrar ordered the wife to file that response and gave her 21 days to do so. She did not do so.
There were further disputes of an enforcement nature between the parties in April 2018. Those were completed with orders and reasons published on 1 May 2018[2]. Those orders left alive the husband’s application for costs.
[2] Published as Lamb & Menotti [2018] FamCA 278
To the extent there was any confusion about whether the costs application was still alive, it had arisen from the Court’s own records showing the application in a case filed 8 December 2017 being dismissed. A reference to the orders of 1 May 2018 makes it clear that no such dismissal occurred.
For whatever reason, the costs application went into legal limbo. By an application filed on 12 September 2018, the husband, presumably as a matter of precaution, sought orders for reinstatement. At the hearing before the registrar on 18 September 2018, the matter was referred to me and each party was again required to file documentation. This time, the husband complied; the wife did not until 1 November 2018, which was at least three weeks late. Not that it affects the outcome of these proceedings, but this pattern of non-compliance is quite troubling and as the wife had solicitors on the record, I draw their attention to r 1.08(2) of the Rules.
On 12 November 2018, as a matter of precaution, I made orders extending the time for the wife to file written submissions which were due by 23 November 2018. This time they were filed. At the hearing on 12 November 2018, the solicitor for the wife conceded that there was no issue about the husband’s application for costs whether it was alive or not and in respect of the latter, if so, it could be reinstated. In my view no such problem arises when an examination is made that the orders of 1 May 2018. In any event, the wife’s counsel who drew the costs submission did not raise the issue again.
The husband now seeks the orders for costs and I propose to deal with the three discrete areas in paragraph [2] (a), (b), and (c) above separately.
Dealing with (c) first, whilst there may have been a number of hearings “in relation thereto” as described in the husband’s contravention application, it is clear from the record that the application was dismissed by consent on 7 December 2016. Paragraph [9] of the registrar’s orders reads:
[9]That the Contravention Application filed by the husband on 31/8/16 be dismissed (with each party to bear their own costs).
At [16] of the husband’s submission, that dismissal was acknowledged but it was submitted:
[16](W)hen agreement was reached between the parties with respect to the distribution of those proceeds, the contravention application pertained, not to what happened to the proceeds, but to the wife’s failure to pay the [Suburb S] proceeds into a joint account as ordered by Austin J.
Whatever was the complaint of the husband about the wife’s failure to comply, (and here, r 19.08 of the Rules is relevant) the order of the registrar, to which the husband consented, precludes him from now seeking to include those costs as part of the overall trial of the proceedings. There is therefore no basis to make an order in terms of (c) above.
I turn then to (b) which, although connected to the contravention application, was a discrete application filed by the husband on 20 July 2016. This application suffers the same fate as (c) for the following reasons.
At [13] of the husband’s submission, it was submitted that the husband brought on the application for urgent interim relief because the wife had control of the proceeds of the sale of a real property which had been sold. Doing the best I can, it seems that in the course of contemplating that application, someone (possibly the Court) raised the question of whether or not the application was out of time and therefore there was no jurisdiction. The parties then addressed that issue before Austin J and his Honour, presumably at the request of one of the parties, adjourned the proceedings for some days to enable material to be filed by the wife.
On the next return of the husband’s application on 1 August 2016, Austin J made an order under s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) granting the husband’s application enabling him to proceed out of time. His Honour then made a number of orders that are noted as being matters to which both parties consented and I need to return to those below.
In the first of the two hearings before Austin J, the wife was represented by one practitioner who said there was no issue as to s 44(3) of the Act, but when she filed material only days later and was represented on 1 August 2016 by another legal representative, her position changed and she disputed what had been a consensual arrangement. That caused Austin J to hear the matter and the order under s 44(3) of the Act was made.
Whilst no published reasons were given (and presumably, none were required by the parties), as this issue has been raised on the question of costs, I listened to the audio of that hearing only for the determination by Austin J of the issue of any costs. The parties can obtain a transcript of the proceedings if they so wish, but at the conclusion of the hearing, his Honour raised with Mr Jordan on behalf of the husband the existence of a costs application that had been pleaded in the interlocutory relief sought by his client. It seems the issue of the costs of the first of the two hearings had been reserved to 1 August 2018. Mr Jordan asked his Honour to further reserve those costs and his Honour declined. Mr Jordan then pressed the hearing of the application, and what followed was some criticism by his Honour about a number of things (that are not immediately relevant) in relation to the way the matter had been brought on for hearing. Mr Jordan then withdrew the application for costs. That in turn, led Austin J to make the following order:
(4)Otherwise:
(a)The application for interim relief set out within the Initiating Application filed on 20 July 2016 is dismissed;
(b)The application for interim relief set out within the Response filed on 29 July 2016 is dismissed; and
(c)Any and all outstanding applications for interim orders are dismissed.
For the same reasons given in respect of (c) earlier, the husband cannot now seek an order for costs as part of the overall proceedings, let alone the particular application, having not pressed it on the day when given the opportunity to do so. In any event, as can be seen, Austin J dismissed his application. His withdrawal of the application on that day does not assist him as the Court now, and presumably the wife, were of the understanding that no application for costs associated with that 2016 application was to be brought.
I turn then to (a) and the application for costs of the proceedings generally said to be from 14 June 2017, which was the day upon which the husband served the case outline he had prepared for the final hearing.
Before dealing with the substantive application, there is a fourth issue that needs to be first addressed.
Although not mentioned in paragraph [11] of the husband’s submission seeking costs, amid the rest of the submission, he sought in an order to vary paragraph (13) of the orders made on 14 November 2017.
Paragraph (13) of the orders reads as follows:
(13)The wife pay the husband’s costs of the Supreme Court proceedings in an amount to be agreed, and failing agreement, as assessed by a registrar of this court.
The husband submitted that at the final hearing, the Court had the benefit of Mr Jordan’s affidavit filed on 13 June 2017 as to the amount of costs calculated on the Supreme Court scale for the purposes of the husband’s claim. They were not pursuant to a costs agreement. The submission said that the provision of the calculation in order (13) was a machinery provision and could therefore be varied. I have no doubt that is right. The submission went on to say that given the husband’s application for costs was now before the Court, the Court was entitled to revisit the method of “calculation” of the costs. He then submitted that he wanted the costs fixed in a specific amount and paid on a solicitor/client basis notwithstanding paragraph (13) of the orders.
Albeit that the order I made was undoubtedly a machinery provision, 12 months have passed by. I have no idea what discussions have taken place between the practitioners to avoid the default provision applying since that order. I would assume that none occurred which would be consistent with everything else that seems to have taken place in this litigation. In my reasons for judgment on the specific point, I said:
[175]The husband relied upon an annexure to the affidavit of his solicitor filed 13 June 2017 in relation to those costs. I am not in a position to make an assessment and accordingly the appropriate order is to require that in default of agreement between the parties, the costs be assessed.
It must have been clear to the parties in 2017 that they could avoid an assessment by negotiation, but their failure to resolve the issue now requires an assessment. If the husband has his way, that assessment would be by the Court, relying upon Mr Jordan’s affidavit.
Rule 19.32(1) of the Rules provides:
(1)The Registrar conducting an assessment hearing for a disputed itemised costs account must:
(a)determine the amount (if any) to be deducted from each item included in the Notice Disputing Itemised Costs Account;
(b)determine the total amount payable for the costs of the assessment (if any);
(c)calculate the total amount payable for the costs allowed;
(d)deduct the total amount (if any) of costs paid or credited; and
(e)calculate the total amount payable for costs.
I am not in a position to fulfil those tasks nor should I have to. There is no basis here for me to alter the order I made in 2017. Even if there was some basis, I decline to do so because the parties have done nothing to assist the Court in working out the appropriate amount of costs.
I return then to the issue of the substantive claim for costs
The husband’s position was set out in his submission filed 12 September 2018 and his reply to the wife’s submission that was filed on 26 November 2018. The justification for costs was said to be that there were circumstances justifying an order as set out in s 117(2A)(a) – (f) of the Act. The husband said that he accepted that justifying circumstances had to be identified before an order for costs could be made, and he relied specifically on the assertion that the overarching consideration was that the costs order had to be just having regard to all the circumstances of the case and “in particular the reasonableness of each party’s behaviour during the course of the case”.
The husband submitted that the financial circumstances of the parties were relatively modest and there were no considerations arising out of s 117(2A)(b) of the Act.
By her counsel’s submission filed on 23 November 2018, the wife opposed any orders for costs being made.
As part of the documents relied upon by the wife, reference was made to an affidavit of Mr DD filed 4 April 2018. It is curious that the wife relied upon that affidavit. In so far as it addresses the issue of the notice of discontinuance, paragraphs [8] and [9] could be misleading. The assertion in the affidavit is that the basis of the discontinuance was that the matter had settled. That was not what McClelland J was told. His Honour certainly stood the matter over to enable the respective notices of discontinuance to be filed but the wife’s solicitor told his Honour that the parties had “resolved their differences”. Contrary to that, there was never a suggestion made to the Court that the parties were drafting minutes of orders, nor that either side was “awaiting draft minutes of orders”. It would be curious if they were because all of the proceedings had been discontinued. As such, there would have been no live applications upon which to base any orders. Importantly, in the ultimate trial, as is evident from paragraphs [6] to [11] of the judgement, it was asserted by the wife that the email received by her solicitor and upon which he filed the discontinuance was not written by her. Curiously, none of the five letters attached to the affidavit, all of which postdate the notice of discontinuance by over a year, do not make mention of any such fraudulent action. The affidavit of Mr DD does not assist me.
In respect of s 117(1) of the Act, it was submitted that this was a case where the various findings demanded that each party be responsible for their own costs. No one factor in s 117(2A) of the Act is determinative, and all must be taken into account but the essential feature first, is to find a circumstance that justifies a departure from the principle that each party pays their own costs. In this case, for the reasons that follow, I find there is ample evidence as to why this litigation justifies an order for costs.
At paragraph [22] of the wife’s submission, it was said that a nexus had to be established between the misconduct upon which the husband relied and the costs thereby incurred. Counsel for the wife described a successful costs application as “very much akin” to a claim for damages and not some form of “bonus system”. Those rhetorical flourishes do not represent the law and they are not the way I intend to determine this application. The principles in s 117 are well known (see Penfold v Penfold [1980] HCA 4).
This jurisdiction is not one in which costs follows the cause nor is a costs order a form of punishment. Costs are intended to compensate the party who has litigated and incurred costs that might have otherwise been avoided had the party against whom the order is sought to be made conducted the litigation differently.
The issue in this case, as was later submitted, was not about the wife’s conduct as a person, but rather as a litigant. In my view that is the nub of this dispute over costs. At [62] of the wife’s submission, it was put that to be fair to the wife, the Court needed to accept her medical condition made it different (difficult?) for her to appreciate the complexities of the issues associated with the allegations she made of forgery. I want to make clear that I am not determining this matter on the basis that the wife’s disability justifies an order nor indeed that it contributed significantly to the extension of time in the trial. However, I do not accept that the wife’s disability explained many of the allegations she made. In some, for example the Westpac bank details issue, no enquiry was made on behalf of the wife as to the accuracy of the accusations she made. It was only when the husband (who had made those enquiries) produced evidence at the final hearing, the true position emerged. As such, I reject the suggestion that the wife’s disability is an issue here bearing in mind she had legal advisors who settled the affidavit that she swore.
In respect of the way in which the wife had conducted the proceedings, the husband submitted that if one looked at the judgment of the court, there were many issues of the wife’s conduct as a litigant and he identified some which included the following:
·The wife’s discontinuance of the 2015 proceedings and an assertion (ultimately not proceeded with in any evidentiary form) that someone had falsely and fraudulently emailed to the wife’s solicitor her instructions to discontinue the proceedings;
·The conflicting position adopted by the wife about s 44(3) of the Act;
·The failure to advise Austin J that on that very day, the wife was seeking relief in the Supreme Court of South Australia;
·Unsubstantiated assertions by the wife which prolonged cross-examination and hence the longer trial;
·Assertions by the wife as to the valuation of the major asset (which was a hotel) about which she had not obtained a valuation;
·An unrealistic suite of orders that she sought having regard to the circumstances, including the inadequacy her of her own disclosure as to financial circumstances;
·Broad and unsubstantiated allegations against the husband about failure to disclose documents by the husband;
·Allegations of by the wife of forgery and impropriety in relation to banking accounts;
·The concerning disposal by the wife of the husband’s motor vehicle and an insurance claim she made as well as her receipt of a cash gift from her uncle to payout a car lease that had not been disclosed;
·Incoherent evidence in relation to the fate of significant jewellery; and
·Arguments in relation to how the hotel was to be disposed of without any clear indication about how that would work.
In respect of paragraphs [44]–[61] and [65]–[75] of the wife’s submissions, counsel addressed a range of issues indicating that there were justifications for her actions. In particular, it was submitted that they did not contribute to the costs involved in the trial. I reject that. Collectively, these issues unnecessarily prolonged the trial. The examples given by the husband’s counsel included a reference to domestic violence, forgery, the existence of her V Bank account and the allegation against the husband of theft. All those matters had not been investigated properly (as they had been by the husband) and as such, to file her evidence-in-chief, particularly where everyone knew she had a disability, must have flagged the potential for a prolonged trial. Enquiry should therefore have been made as to whether those allegations could be substantiated. Having heard the trial, no such enquiry was apparent.
At [87] of the submission, counsel for the wife valiantly endeavoured to justify the fact that the wife had not obtained a valuation of the hotel (and nor had the husband). The wife conducted the proceedings on the basis that it was worth $2 million without any evidence at all and that was irresponsible. That irresponsibility could not be said to be anything other than the responsibility of wife where she, properly advised, must have known how the Court approached a property settlement where the first step was to ascertain the legal and equitable interests of the parties. That meant some form of evaluation assessment. The husband’s position at all times had been that the property would have to be sold. The wife, unlike the husband, did not approach the matter on a percentage basis.
Throughout the proceedings it became clear, and this is referred to in the published reasons[3], the wife had a significant disability. That exacerbated the difficulties of cross-examination of her and it may have also exacerbated difficulties in the presentation of her evidence-in-chief depending upon what view one took of the instructions she gave. During a particularly difficult period of the wife’s cross-examination, the husband’s counsel made an application for the wife to have a guardian appointed. That was resisted by the wife and her lawyers. Thus, her disability cannot be seen to be the factor which prolonged the trial. It was clear that many things had not been properly investigated before the trial began.
[3] [2017] FamCA 918
It is not the purpose of these reasons to be critical of the legal practitioners involved for the wife because there is a reasonable presumption that they acted upon her instructions. Accordingly, the way in which the wife conducted the proceedings as well as the final hearing, must be seen as her own responsibility. On any view of the reasons for judgment to which I have referred, time was wasted and the husband’s costs no doubt increased as a result.
The submissions on behalf of the husband also asserted that the proceedings were necessitated by failure of the wife to comply with previous orders and I accept that having regard to the fact that there were enforcement proceedings after the orders of 1 August 2016. The contravention proceedings were brought on quickly. As earlier mentioned, it is not appropriate that I deal with those as a discrete issue associated with costs, but it is certainly a relevant factor in whether it is justifiable in all of the circumstances to depart from the principle in s 117 of the Act.
Section 117(1) of the Act provides that in proceedings under the Act, each party shall bear their own costs, but as s 117(2) of the Act provides, that principle can be overridden subject to some considerations including those set out in s 117(2A) if there are circumstances that justify it so doing. I therefore take into account the contravention proceedings only as an indication that there are justifiable circumstances here to make an order for costs in respect of the trial. However, the amount of those costs must be regulated by a reference to specific dates.
A further basis upon which the husband seeks costs was the assertion that the wife had been wholly unsuccessful particularly having regard to the “extraordinarily ambitious orders sought by her”. There is much to be said for the submission that her orders were not just ambitious, but in my view, unreasonable. That alone is not a basis to make an order for costs because I am not aware of what advice she received or what understanding she had as to the way in which the proceedings were to be conducted. However, in his case outline document filed 14 June 2017, the husband sought an overall order that the wife have 65 per cent of the “aggregate equity of the two assets the subject of sale”. The two assets to which that referred were the parties’ former home at Suburb E and the hotel conducted by a corporate entity. There could be no misunderstanding about what the husband was referring to and therefore the wife was on notice that at least from the 14 June 2017, that was the order that the husband was pursuing.
In the reasons for judgment published on 14 November 2017[4], I observed:
[142]With the concession of the husband albeit at 30 per cent of the net “asset pool” and factoring in a modest amount for a greater contribution by the wife from the husband, I accept that a just and equitable result in this case is 65 per cent to the wife and 35 per cent to the husband of the net equity in the two assets.
[4] [2017] FamCA 918
In respect of offers of settlement, it was submitted on behalf of the wife that what the husband was proposing was not certain or precise. I disagree. Both parties commenced the litigation on the basis that there was no clear picture as to the value of the hotel, but that the husband at least had a basis upon which he had assessed the value of the property and that it would have to be sold. I am satisfied therefore that the Court could assess the matter of the operation of property interests overall on a percentage basis to achieve a just and equitable outcome. As both parties adopted that view and the matter so proceeded.
I find in the circumstances that the wife was largely unsuccessful. To the extent that it might be asserted that the wife did not know of the value of the hotel, I reject that on the basis that she had ample opportunity to pursue that issue and did not do so. To the extent that she asserted that the husband had not made adequate disclosure, I refer to paragraph [80] of the judgment in which I said that the evidence did not support any conclusion to the effect that discovery was incomplete or that the husband had manipulated the hotel accounting in some way. Accordingly, the only finding open to me is that the wife adopted an unreasonable position about her entitlement or that, for whatever reason, she had not done her due diligence in preparation for trial.
All of the matters above form the basis of the conclusion that there are justifiable circumstances here to depart from the principle that each party pays their own costs.
In his submissions, the husband urged the Court to make an order for costs on a solicitor and client basis. In support of that, it was submitted that the hourly rate which was referred to in the submission was comparable to what other lawyers in the Adelaide registry were charging. In my view, that is not an argument that has any merit (see Prantage & Prantage [2013] FamCAFC 105,(2013) FLC 93-544,(2013) 49 Fam LR 197)
The husband’s submission was effectively that the Court should order indemnity costs. A variety of authorities were referred to and in my view, they simply restate the law.
In a recent decision of the Full Court (Harris & Dewell & Harris (No. 2) [2018] FamCAFC 180), the issue of indemnity costs was revisited. The applicant for the costs order had argued, relying on Munday v Bowman (1997) FLC 92-784, that he should never have been involved in the proceedings because he had no legal rights to any of the relevant assets. In my view, that situation is comparable to the present matter where I have found that the wife’s position was unreasonable having regard to the assets of the parties which were well-known.
In contemplating the applicant’s costs’ application, the Full Court referred to Munday noting that it related to “undue prolongation of” a case by “groundless contentions”. That was a case where the court made an order for indemnity costs as a consequence.
In Harris, the Full Court said:
In Kohan and Kohan,[5] the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”.[6] In the later decision of the Full Court in Prantage & Prantage,[7] Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
[5] (1993) FLC 92-340 (“Kohan”).
[6]Kohan at 79,611.
[7] (2013) FLC 93-544 (“Prantage”).
The proposition considered by the Full Court above came from Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation[8]in which Callinan J said an order for indemnity costs should be “exceedingly rare” and his Honour gave a reason why that was so.
[8] (2001) 179 ALR 406 (“Arundel Chiropractic”).
In Harris the Full Court did not disagree with Callinan J’s views and confirmed that indemnity costs should be rare but their Honours also pointed to what Lindgren J aid in NMFM Property Pty Ltd v Citibank Ltd(No 2),[9] that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”[10] Thus, there has to be something exceptional or unusual about the case in circumstances where the “usual rule” is prescribed by s 117(1) of the Act, that each party bears their own costs.
[9] (2001) 109 FCR 77 (“NMFM Property”).
[10]NMFM Property at 92 [56].
To move from that to indemnity costs is a very big departure from the philosophical basis underpinning the legislation. Here, I have the matters to which reference has been made about how the wife conducted the proceedings. I could not say those matters were unethical or morally delinquent but rather a stubbornness the basis of which I do not understand. The facts here do not justify an order for indemnity costs but the circumstances earlier mentioned certainly do justify an order for costs.
Counsel for the wife also seem to suggest that the wife was at a disadvantage to properly assess the merits of the claim brought by the husband because there were no details provided as to the calculation of costs. I find that submission remarkable in circumstances where the application was made in December 2017 and it was always going to be contentious. Why no correspondence occurred, raises questions of the inactivity of the wife’s lawyers. In respect of the quantification, the husband’s application in a case filed in December 2017 sought the precise sum that is now advocated as the appropriate order. In the circumstances, there is no merit in that part of the wife’s submission.
Having rejected the husband’s application for the sum set out on the basis that it amounts to a solicitor and client calculation, it is not appropriate to make a fixed order here as there is no information upon which such an order can be determined.
In calculating what is the appropriate and just order, I take into account that the husband needed orders to resolve matters. The parties were at loggerheads over how the hotel was to be managed, let alone sold. There were arguments about who should be trustee and the circumstances of that trust. There were arguments about how the hotel was to be marketed, and by whom. The proceedings in April 2018 clearly indicated that the parties could not reach agreement even at that stage and needed orders.
In the circumstances, it would not be just to make the wife contribute to all of the costs of the husband subsequent to the filing of his outline of case on some sort of compensation basis because he achieved very close to what he had promoted. Where the husband needed orders and some control over the situation, bearing in mind that several attempts have been made over a number of years during which time the parties dispute raged on, it is only a portion of those costs for which the wife should be responsible.
In my view the only way to assess that proportion is to look at how much time in the trial was spent as a result of the wife’s allegations as distinct from the matters directly related to her disability. This case was conducted over some seven different days and in my view two days were wasted on issues that were inadequately prepared or unjustifiably put forward as determinative of the ultimate outcome. In the circumstances, the appropriate order is to require the wife to contribute 2/7 of the husband’s costs calculated according to the family law scale in schedule 3 to the Rules by agreement and in default of agreement, as assessed by a registrar.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 December 2018.
Acting Associate:
Date: 4 December 2018
0
8
2