Magnus & Sandri (No 3)
[2024] FedCFamC1F 449
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magnus & Sandri (No 3) [2024] FedCFamC1F 449
File number: SYC 3830 of 2019 Judgment of: HARPER J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open following the conclusion of the final hearing – Where final judgment listed for delivery – Where husband filed application to re-open the day before the listing – Where husband sought to make changes to the balance sheet, including the inclusion of further tax liabilities – Where significant tax liabilities already included on balance sheet – Where additional tax liabilities sought to be included ought to have been reasonably anticipated at the final hearing – Where husband contended that he had experienced a change in circumstance that materially impacted his earning capacity – Where evidence of the circumstances impacting the husband’s earning capacity was before the Court at final hearing – Insufficient evidence to demonstrate a material change occurred – Where wife would suffer prejudice if the leave to re-open granted – Where husband sought to amend his proposed final orders and seek a superannuation splitting order – Where neither party sought a superannuation split at the final hearing – Where orders seeking superannuation split were open to the parties to advance at final hearing – Where application to re-open is antithetical to the overarching purpose and the interests of justice – Application dismissed – Costs ordered in favour of the wife.
FAMILY LAW – INTERIM PROPERTY – Where husband seeks to discharge interlocutory orders made on the last day of trial – Where husband contended he was unable to satisfy his ongoing financial obligations required by interim orders – Where interim orders would be discharged upon delivery of final judgment – Where husband has not demonstrated a material change in circumstances – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VIII, s 79(4)(e) and s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826
Brimaud v Honeysett Instant Print (1988) 217 ALR 44
EB v CT (No.2) [2008] QSC 306
Gelley and Gelley (No 1) (1992) FLC 92-290; [1992] FamCA 92
Joubert & Verhoeven [2020] FamCA 53
Liu v The Age Company Limited (2016) 92 NSWLR 679
Magnus & Sandri (No 2) [2024] FedCFamC1F 236
McDermott & McDermott [2016] FamCA 613
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Summitt & Summitt [2009] FamCA 365
Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 23 July 2024 Place: Sydney Counsel for the Applicant: Mr Auld Solicitor for the Applicant: Abbott Delaney Lawyers Counsel for the Respondent: Mr Bennett Solicitor for the Respondent: Coleman Greig Lawyers ORDERS
SYC 3830 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SANDRI
Applicant
AND: MS MAGNUS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1.The Respondent Husband’s (“the husband’s”) Application in a Proceeding filed on 3 July 2024 is dismissed.
2.The husband pay the Respondent Wife’s costs of the Application in a Proceeding filed on 3 July 2024, as agreed or assessed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Magnus & Sandri has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property proceedings between the applicant wife, Ms Magnus (“wife”) and the respondent husband, Mr Sandri (“husband”) under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
BACKGROUND
It is unnecessary to set much background out for the purposes of this judgment. However, the following is relevant.
The wife was born in Australia in 1969 and is 54 years of age. The husband was born in 1967 and is 57 years of age. The husband works as a health professional and the wife works as a health professional three days a week.
In 2011, F Street, Suburb C was purchased in the wife’s sole name. It became the matrimonial home. It was used a security for loans taken out by the husband.
In 2013, G Investment Company was established in the United States of America, with the wife as the “Member” and the husband as the “Manager”. It was used as a vehicle to purchase and manage the several apartments in a holiday resort.
The parties commenced cohabitation in 1995 or 1996 and were married in late 1997. It was an agreed position that the husband moved out of the former matrimonial home in January 2019. The parties divorced in mid-2020.
The wife commenced parenting and property proceedings in the Family Court of Australia (as it then was) on 14 June 2019.
In orders made on 1 December 2021, notations were included that the parties agreed that the property pool would be divided 53.5 per cent in favour of the wife and 46.5 per cent in favour of the husband, and that the wife would retain Suburb C and the shares in G Investment Company. At trial neither of the parties sought to resile from these broad agreed positions, except to the extent that the husband accepted that 53.5 per cent was a “floor”, and a greater percentage in the wife’s favour was open to the Court after consideration of s 75(2) factors. The asset pool is substantial, being no less than $22 million. Suburb C itself has a value of between $13.5 million and $14.5 million. At the final hearing there were arguments about adding back substantial notional property and some substantial tax liabilities of the husband were included by agreement on the balance sheet.
The proceedings have been the subject of a final hearing which completed over three days on 4 April 2024. A previous allocation of five hearing days to commence on 6 November 2023 was vacated because the final hearing had not been adequately prepared and was not ready to proceed.
Final judgment was listed for delivery on 3 July 2024. The day before the husband filed material in support of an Application in a Proceeding seeking leave to reopen the evidence.
His application also sought a variation to interlocutory orders made by me on 4 April 2024. Those orders were made after delivery of Ex Tempore Reasons delivered on that date, published as Magnus & Sandri (No 2) [2024] FedCFamC1F 236 (“Magnus & Sandri (No 2)”). It is unnecessary to repeat those reasons for the purposes of this judgment.
In summary the husband also seeks orders permitting him to use funds in E Bank Account …00 to pay taxation liabilities, some outstanding marketing costs relating to the sale of “[B Street]”, Sydney, and school fees for the balance of 2024 for the parties’ youngest child, who is in Year 12. He also seeks variation of a spouse maintenance liability from $4,500 to $2,416 per week, leave to satisfy his obligation for ongoing mortgage payments from account …00 and a payment to himself of $245,000 from that account.
MATERIAL RELIED UPON
In addition to his application filed on 3 July 2024, the husband relied upon his affidavit filed on 2 July 2024, a Financial Statement filed on the same day and a Case Outline filed 22 July 2024. The wife relied upon a Response and affidavit filed 12 July 2024, and a Case Outline filed on 22 July 2024.
The husband tendered a proposed updated balance sheet which became Exhibit “A” and a Tender Bundle, which I mark Exhibit “B”.
The husband made clear that the further evidence upon which he proposed to rely if leave to re-open was granted, was the same evidence which he placed before the Court in support of his application to re-open. Accordingly, both the wife and the Court are fully appraised of the additional material he seeks to introduce in support of his proposed final orders.
I note here that he also, if leave is granted, seeks to put before the Court fresh proposed final orders. These are different from his proposal at final hearing in two material respects, as follows.
First, the wife seeks as part of her final relief, orders discharging loans owing by the husband to E Bank secured against Suburb C, so that she may retain the property unencumbered. The husband had proposed that the wife discharge the loans and retain Suburb C, with orders that it be sold in default of her being able to discharge his loans. Now he would seek a sale of Suburb C, with the proceeds to be divided equally after discharge of the E Bank loans and payment of sale costs. He then proposes an order that he make a capital payment to the wife to affect a distribution to her of 53.5 per cent of the property pool.
Secondly, the husband holds about $2,327,871 in superannuation, while the wife holds an amount of $159,369. At final hearing, neither party sought an order splitting superannuation. The husband also would now propose an order that his superannuation be split with a base amount of $1,171,304 to be allocated to the wife.
APPLICABLE LAW
I turn then to the application to re-open. There was no dispute about the applicable principles, which are well known and set out in numerous cases (Smith v New South Wales Bar Association (1992) 176 CLR 256 (“Smith v New South Wales Bar Association”); McDermott & McDermott [2016] FamCA 613 (“McDermott & McDermott”); Summitt & Summitt [2009] FamCA 365 (“Summitt & Summitt); Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471 (“Urban Transport Authority of NSW”)).
In property proceedings in this Court common law principles govern applications to re-open (Summitt & Summitt; Gelley and Gelley (No 1) (1992) FLC 92-290 (“Gelley and Gelley”)). The reopening of a case prior to the delivery of judgment is an exception rather than the ordinary course (McDermott & McDermott at [7]).
The granting of leave to reopen is discretionary and is to be guided by whether the interests of justice are better served by allowing or rejecting the application (Urban Transport Authority of NSW at 478; Gelley and Gelley at 79,146–79,148; Smith v New South Wales Bar Association per Brennan, Dawson, Toohey and Gaudron JJ at 266-7).
The High Court in Smith v New South Wales Bar Association observed at 265–266 that:
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the reopening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened …
…
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised …
(Footnotes omitted) (emphasis added)
In Reid v Brett [2005] VSC 18, Habersberger J said:
41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
…
(Footnote omitted)
In Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 at [18], Austin J outlined the matters to be considered by the court when considering an application to reopen including:
a)The nature of the proceeding;
b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
c)Considerations of fairness in respect of the defendant’s notice of the case they have to meet;
d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;
e)The degree of relevance and probative value of the further evidence;
f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;
g)The public interest in the timely conclusion of the litigation; and
h)The explanation offered by the applicant for not having called the evidence-in-chief.
In EB v CT (No.2) [2008] QSC 306 (“EB v CT (No.2)”), Applegarth J observed, referencing Smith v New South Wales Bar Association, that:
5.Reference by the High Court to prejudice to the other party, and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
Leave to Re-open
The evidence which the husband seeks to introduce if permitted to re-open can be summarised as follows.
In determining the application it is also relevant to note that by affidavit filed on 1 April 2024, just prior to the final hearing, the husband gave evidence of grief over the death of the parties’ oldest child, inability to work at full capacity by reason of the COVID-19 pandemic, pressure to satisfy tax obligations, onerous financial obligations, including mortgage repayments, spouse maintenance, costs of supporting his new family, and physical health problems, including a diagnosis of a medical condition and an injury. He also gave evidence to the effect that his mental health had diminished his ability to function.
In 2024 his father passed away. According to the husband this happened soon after a diagnosis of a medical condition. This exacerbated his feelings of sorrow and sadness which he had long been experiencing as a result of the death of the parties’ eldest child.
In May 2024, the husband received a demand for payment of $3,726,704 from the Australian Taxation Office (“ATO”), which imposed a deadline of mid-2024. I note that deadline has passed. This figure is made up of $2,725,004, which was, broadly speaking, the amount known at the final hearing, together with an additional $1,001,670 which is owing under a new Business Activity Statement.
On 12 June 2024, the husband received a demand from the ATO for H Pty Ltd ATF the Sandri Family Trust to pay $119,909 which is overdue. There was no dispute at the final hearing that the income for the Sandri Family Trust was derived from the husband’s fees as a health professional. However, the agreed figure on the balance sheet at final hearing (Exhibit Q) already included $108,788 as a liability of the husband for H Pty Ltd’s tax obligations.
There are also school fees owing for the youngest child of $29,129 for the second half of 2024.
On 14 June 2024, further conditions were placed upon the husband’s business as a health professional by the professional association of NSW. His evidence did not make clear why the conditions have been imposed, except to say he faced difficulties in his business which “I feel are caused by my mental and physical health”.
The conditions include supervision by a supervisor approved by the professional association of NSW, who must hold registration and be a member of the professional associations. The husband must have fortnightly review meetings with his supervisor, and seek approval for upcoming business activities, and is subject to detailed reporting requirements. He requires approval from the professional association of NSW to change his place of business and obtain a written second opinion from an approved professional to perform certain business activities. There are numerous other specific requirements.
The husband claims the conditions of business are likely to cause his business to run at a loss until the conditions are relaxed or removed. According to his evidence the cost base for his business, which is run through the Sandri Family Trust, for the financial year ended June 2023 was $1,031,640. The revenue for the trust, which comes from his fees as a health professional, in the same period was $1,084,998, giving a surplus of $53,358.
The husband argues that the final balance sheet should be significantly updated with an increase in his liabilities, and the effect of the proposed superannuation splitting order should be taken into account in assessing the final outcome.
The wife for her part claims she is prejudiced by the proposed re-opening. She points to the emotional and financial cost to her of any further delay.
I am not persuaded leave should be granted to the husband to re-open the evidence, for the following reasons.
I am satisfied that if the husband is permitted to re-open, it is likely the Court will need to find additional hearing days in the event the wife wishes to test any of the husband’s additional evidence by cross-examination.
The husband’s physical, psychological and emotional health were the subject of evidence at the final hearing. Indeed, both parties made clear they suffered terrible grief caused by the death of their eldest son. The emotional and psychological health of a party is a matter which the Court can take into account under s 79(4)(e). It is not a factor of course which is susceptible to any sort of mathematical calculation. It is weighed in the balance with all other relevant matters. The psychological toll from the death of the husband’s father does not obviously change this assessment and its relative importance does not seem sufficient to warrant reopening.
I accept the conditions imposed on the husband’s business appear onerous. They may cause a decline in his earning capacity. But his evidence in this regard, which as noted is the additional evidence he intends to adduce for the purpose of final hearing, does not explain in any detail the scale of any such decline, and is otherwise vague and given at a level of generality which is not convincing.
The increase in the husband’s taxation liabilities since the conclusion of the hearing are substantial but must have been anticipated at the final hearing. Other than the additional $1,001,670 owing under a Business Activity Statement, the increases are, in the context of a balance sheet worth no less than some $22,000,000, relatively modest. The Business Activity Statement itself must have been anticipated. There can be no doubt that the husband has been receiving Business Activity Statements regularly for many years, and they are assessed broadly speaking by reference to anticipated taxable income. Furthermore, the demand from the ATO was received in May 2024, some six weeks before the husband filed any application to reopen. No satisfactory explanation has been given for this delay.
The husband also claimed that the value of his K Company share portfolio, which had an agreed value of $1,165,827 on the balance sheet at final hearing, has reduced in value to $761,827 because his shares in J Limited are now worth nothing. This is because the company is in liquidation, and the liquidators have made a declaration that there is no likelihood the shareholders will receive any distribution. However, permitting this evidence points to the need for further expert evidence about the overall value of the K share portfolio. The husband’s evidence does not make clear what the current overall value of this share portfolio is otherwise said to be, other than to claim the reduction in value to $761,827. There is no evidence to make clear whether the loss in value of the J Limited shares has been offset by gains in other shares within the portfolio, for example.
I accept that the proposed further evidence could affect the values on the balance sheet. But the discussion above does not persuade me that it would probably affect the result of the case. This conclusion is reinforced by the undisputed fact that the parties have adhered to their agreement that their assets should be divided 53.5 per cent in the wife’s favour and 46.5 per cent in favour of the husband, subject to a further adjustment pursuant to s 79(4)(e).
The proposed superannuation splitting order now intended to be sought was an obvious option for inclusion in the either party’s proposals at final hearing. The husband has not explained why it was not put forward by him at that point in time.
There is also the emotional and other costs to the wife, and the delay in delivering an expected final judgment, if the husband is permitted to re-open. This is a form a prejudice which is well recognised (see above in EB v CT (No. 2)) and should be taken into account and has been emphasised by the decisions referred to in the High Court.
In this Court, furthermore, s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires all parties to promote the overarching purpose set forth in s 67 to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. This includes the efficient use of the judicial and administrative resources available for the purposes of the Court, and the efficient disposal of the Court’s overall caseload. In my view, the husband’s application offends the achievement of these objectives.
I am unable to conclude that the additional evidence is so material that the interests of justice require its admission. In my view, justice is best served by refusing this part of the husband’s application.
Discharge of Interlocutory Orders
I turn then to the discharge of the existing interlocutory orders. The ordinary considerations which apply when a party seeks to discharge or vary an interlocutory order apply to this part of the husband’s application. He must satisfy the Court that a material change of circumstances has occurred, or new material has been discovered which could not reasonably have been put before the Court on the hearing of the original application (Brimaud v Honeysett Instant Print (1988) 217 ALR 44 at [46] (“Brimaud); Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [14] (“Paris King Investments Pty Ltd”); Liu v The Age Company Limited (2016) 92 NSWLR 679 at [199]).
In Joubert & Verhoeven [2020] FamCA 53 I set out applicable principles which I venture to repeat here at [30] and [31]:
30. There is considerable authority to establish that there is a principle of finality applies to interlocutory decisions. In Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507 at [24] to [25] the High Court confirmed the doctrine of abuse of process is informed in part by considerations of finality and fairness similar to the doctrines of res judicata and issue estoppel, although it is inherently broader and more flexible than estoppel, and is capable of application in any circumstances in which the use of a Court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. In relation to interlocutory applications, this statement of principle has been echoed in numerous judgments of this, and other, Courts: in Malcher & Malcher(No. 2) [2012] FamCA 1115 at [15], Ryan J stated that the Family Court is “not a court of unrelenting interlocutory applications”; in [Farina & Lofts] [2018] FamCA 763 at [31] Carew J held attempts to re‐litigate matters already determined, even on an interlocutory basis, will be discouraged; in Jess & Garvey (2018) FLC 93-827 at [130]-[131] the Full Court followed the decision of McLelland J (as he then was) in [Brimaud] at 46 where he said:
It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order re-litigated at will.
31. In Brimaud it was held that a subsequent application to set aside, vary or discharge an interlocutory order must be founded on a material change of circumstances, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. More recently, the limits on successive interlocutory applications were explained in [Paris King Investments Pty Ltd] at [14] by Brereton J as follows:
In my opinion, as outlined in Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225, [16]-[17] [(“Harrison Partners Construction Pty Ltd v Jevena Pty Ltd”)], acknowledging that it is impossible to state a principle capable of universal application, nonetheless the general rule is that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision [Harrison Partners Construction Pty Ltd v Jevena Pty Ltd at [13]].
The husband pointed out that in my earlier decision Magnus & Sandri (No 2) I adverted to the possibility of the husband making an application to vary or discharge the interlocutory orders which were imposed on 4 April 2024.
However, I do not accept the husband has demonstrated a necessary material change in circumstances to enliven the relevant discretion. The exigencies of life always cause changes in circumstances, but the matters pointed to by the husband in my view lack the necessary materiality. The husband’s essential argument is that the interlocutory orders should be varied because he no longer has the financial capacity to comply with them. I have already discussed the evidence said to support this submission. The evidence adduced does not make clear the extent of any reduction in his income. Nor does his evidence give any convincing evidence to support his claim for an immediate cash payment of $245,000.
But more to the point, this part of the husband’s application has an air of unreality. If the husband had not brought this application, or sought to re-open, final judgment would have been delivered some three weeks ago. By force of r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the existing interlocutory orders would have been discharged, and will be discharged, once final judgment is delivered. The changes to his circumstances upon which the husband relies would have been addressed one way or another by the delivery of judgment. He did not bring his application in circumstances where the date of judgment was unknown, or likely to be delivered after a further considerable delay. The application itself has had the effect of extending any financial burden on the husband arising from the interlocutory orders. Bringing the application, in my view, is inconsistent with the overarching purpose, referred to above at [45].
Accordingly, I will dismiss the husband’s application to discharge the interlocutory orders.
COSTS
The wife seeks an order that her costs of the application be paid on an indemnity basis or in the alternative as assessed or agreed. The question of costs is to be determined pursuant to s 117(1) of the Act in the first instance. That subsection states as a first position that each party should pay their own costs. However, s 117(2) and s 117(2A) provide a basis for the Court to award costs against one party where it is satisfied there is a justifying circumstance. One such circumstance can be that one party has been wholly unsuccessful, another is the conduct of that party during the course of the proceedings.
In support of her application for costs the wife tendered a letter dated 3 July 2024 from her solicitors to the solicitors of the husband. In it a request was made for the husband to withdraw his application based upon the assertion that he did not adduce any new evidence or satisfy the established case law in relation to adducing further evidence. The letter also points out that the interlocutory orders which the husband has sought to vary in all likelihood would have been dismissed on the basis of the delivery of final judgment.
In my view taking account of the letter and the fact that the husband has been wholly unsuccessful there is a justifying circumstance to make an order for costs in the wife’s favour.
As noted, the wife’s application for costs goes further. She seeks that they be paid on an indemnity basis. The authorities make clear that an award of indemnity costs is only done exceptionally. As described in my reasons for judgment, there have been changes to the husband’s circumstances even if they were not sufficiently material to either justify re-opening or an interlocutory variation of existing interlocutory orders.
I am not satisfied that the circumstances are sufficiently exceptional to justify an award of indemnity costs.
I make orders that the husband pay the wife’s costs of the Application in a Proceeding filed on 3 July 2024 as agreed or as assessed in accordance with the Rules.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 23 July 2024. Associate:
Dated: 6 August 2024
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