Moretto & Cosola (No 3)
[2023] FedCFamC1F 360
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moretto & Cosola (No 3) [2023] FedCFamC1F 360
File number(s): PAC 3192 of 2019 Judgment of: SCHONELL J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant sought a costs order against the respondent following a final hearing in which the respondent was wholly unsuccessful – Where the respondent opposed the costs order – Where the circumstances are not exceptional to warrant an indemnity costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the applicant made offers that were rejected – Costs ordered on a party/party basis as agreed or assessed. Legislation: Family Law Act 1975 (Cth) ss 90SM, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Colgate Palmolive Company and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Moretto & Cosola (No 2) [2022] FedCFamC1F 924
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submissions: 28 April 2023 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Mr Wahhab, York Law Solicitor for the Respondent: Ms Punjabi, Michael Vassili Barristers & Solicitors ORDERS
PAC 3192 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORETTO
Applicant
AND: MS COSOLA
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
11 MAY 2023
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs as agreed or assessed of the hearing held on 12 and 13 October 2022 including the cost of any preparation for such hearing from 1 October 2022 on a party/party basis.
2.The respondent pay the applicant’s costs as agreed or assessed of the Application in a Proceeding filed 22 December 2022 on a party/party basis.
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 the pseudonym Moretto & Cosola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 25 November 2022, I delivered reasons for judgment following a hearing in which the respondent de facto wife (“the respondent”) sought orders by way of financial adjustment under s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The applicant de facto husband (“the applicant”) had consistently asserted throughout the proceedings that it was not just and equitable for there to be made an order.
My reasons for judgment published as Moretto & Cosola (No 2) [2022] FedCFamC1F 924 dismissed the respondent’s application. In the course of those reasons I said:
85.I am satisfied that the unstated assumptions underpinning the parties’ relationships were that during the relationship they were each free to deal with their assets as they chose to do so. They gave effect to that assumption during the relationship. The parties did not intermingle their financial affairs and did not conduct a joint personal bank account. They held and dealt with their real property, being their single biggest asset, free of consultation or consideration of what the other party may have thought was appropriate to do. The respondent had the benefit of occupation of the applicant’s home rent free whilst making her home available for use to her son. Her children lived in the applicant’s home for periods of time.
86.There is no presumption that following the breakdown of a relationship lasting 15 years that an order should be made adjusting the parties’ legal and equitable interests in their property. There must be a principled basis for doing so, arising out of how the parties conducted their relationship. I am not satisfied that one has been established. I am not satisfied that it is just and equitable to make an order.
On 22 December 2022, the respondent filed a Notice of Appeal. On the same day the applicant filed an Application in a Proceeding seeking that the respondent pay his costs for the entirety of the proceedings assessed on various bases including on an indemnity costs basis.
The respondent filed a Response to an Application in a Proceeding on 19 January 2023, seeking a series of orders including its dismissal but also that the application be stayed pending determination of the respondent’s appeal.
On the return date of that application on 3 February 2023, I made the following orders:
1.The respondent file and serve within 28 days any further affidavit on which she intends to rely.
2. The applicant have leave to respond to that affidavit within a further 14 days.
3.The applicant file and serve written submissions by Thursday, 6 April 2023, not exceeding 10 pages.
4.The respondent file and serve submissions in reply by Thursday, 20 April 2023, limited to 10 pages.
5.The applicant to have a right of reply by 4.00 pm on Thursday, 27 April 2023, limited to five pages.
The respondent’s appeal was heard on 28 March 2023, with the Full Court reserving its decision. On 8 May 2023, the Full Court dismissed the appeal.
DOCUMENTS RELIED UPON
The applicant relied upon the following documents:
(1)Application in a Proceeding filed 22 December 2022;
(2)Affidavit of applicant filed 22 December 2022;
(3)Affidavit of applicant filed 17 March 2023;
(4)Written submissions of applicant filed 6 April 2023; and
(5)Written submissions in reply applicant filed 27 April 2023.
The respondent relied upon the following documents:
(1)Response to Application in a Proceeding filed 19 January 2023;
(2)Affidavit of Jaya Punjabi (the respondent’s solicitor) filed 19 January 2023;
(3)Affidavit of respondent filed 3 March 2023;
(4)Financial Statement of respondent filed 3 March 2023; and
(5)Written submissions of respondent filed 20 April 2023.
As referred to earlier, the applicant sought an order for costs of the trial on various bases, being:
·an order for indemnity costs fixed in an amount of $255,531.63;
·alternatively, costs on an indemnity basis as agreed or assessed;
·alternatively, costs on a solicitor/client basis in a fixed amount of $192,308.72;
·alternatively, costs on a solicitor/client basis as agreed or assessed;
·alternatively, costs on a party/party basis fixed in the sum of $166,667.55; or
·alternatively, costs on a party/party basis as agreed or assessed;
The applicant also sought his costs for the Application in a Proceeding filed 22 December 2022.
The respondent sought a dismissal of the applicant’s application, albeit in her submissions she suggested that if an order for costs was to be made that it should not be awarded as a lump sum but assessed “at scale” (respondent’s written submissions, paragraph 42(b)).
I do not propose to address in these reasons for judgment the background to the parties’ dispute which are fully set out in my reasons in Moretto & Cosola(No 2) [2022] FedCFamC1F 924.
The applicant broadly contends in his affidavits in support and written submissions that an order for costs should be made because the respondent was unsuccessful in the proceedings, that she rejected imprudently a number of offers of settlement, and that her conduct in the litigation including the filing of what was said to be unmeritorious applications increased his costs.
The respondent contends for her part that the applicant was unreasonable in relation to the conduct of the litigation, that she was compelled to file applications as a consequence of the unreasonable conduct of the respondent, and that at the time that she rejected various offers of settlement there was uncertainty in relation to the quantum of the pool in particular matters relating to the valuation of real estate.
Each also assert against the other various grievances including poor or unprofessional conduct by the other’s legal representation.
Many of the above arguments amount at most to bald assertions. I am unable to resolve the factual conflict between the parties in relation to most of these assertions in circumstances where I am unaided by oral submissions and there is an absence of an ability to test the factual assertions through cross-examination.
In those circumstances I am left to rely upon what the undisputed matters of fact are, principally being that the respondent was wholly unsuccessful in the proceedings and that offers of settlement in a certain amount were made on a particular day.
DISCUSSION
The authorities make it plain that an order for indemnity costs is not one that is made lightly and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis. In Kohan & Kohan (1993) FLC 92-340, their Honours in the Full Court observed at 79,614:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O. 38 r. 2, the provisions of O. 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O. 38 r. 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370.
Indemnity costs orders are still an exception in this and other jurisdictions. …
Justice Sheppard in Colgate Palmolive Company and Another v Cussons Pty Ltd (1993) 118 ALR 248 observed as follows at 256–257:
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1. The problem arises in adversary litigation, ie litigation as between parties at arm’s length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority.
2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this court the provisions of O 62, rr 12 and 19, and the Second Schedule to the rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission and Handley JA in Cachia v Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
The category of cases in which a court may make an indemnity costs order are not closed and are not limited to those identified by Shepard J. In Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 at 87,471, the Full Court said:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some '”particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”: per Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
There is nothing exceptional about this matter that would bring it within the categories of cases that warrant an order for indemnity costs or, for that matter, are such as to depart from the making of an order on a party/party basis. I am cognisant that the above authorities referring to the circumstances in which a court may make an order for indemnity costs include an imprudent refusal to accept an offer of settlement. That needs to be seen, however, within the context of proceedings where costs follow the event which is different to circumstances that prevail in proceedings before this Court.
I am not satisfied that in this case the circumstances justify the making of an order for indemnity costs or on any other basis other than party/party costs. Accordingly, I will now consider if there are circumstances that justify an order for costs on a party/party basis.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the relative subsections in s 117(2A).
(a) the financial circumstances of each party to the proceedings
I have had regard to the findings in my judgment delivered on 25 November 2022 in relation to the financial circumstances of each party at that time as well as the respondent’s Financial Statement filed 3 March 2023, which updated her financial position.
I accept as a consequence of the findings made in my judgment and the respondent’s updated financial position that the applicant is in a superior financial position. Each party has legal fees to pay and I recognise that the respondent is indebted to her own lawyers in the sum of $298,262. Presumably, this does not include any fees for the appeal that had as at that date not yet been determined. It is difficult to comprehend how it is that the respondent’s legal fees are so high in what was a relatively simple case heard in two days.
That said, I am satisfied that the respondent has the capacity to meet a costs order. I further note that impecuniosity is not a basis for not making an order for costs.
(b) whether the parties are in receipt of legal aid
Not relevant.
(c) the conduct of the parties to the proceedings
Each contends that the other party’s conduct is relevant to a consideration as to whether to make a costs order.
What is relevant is conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non‑disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in relation to disclosure.
I am not able to make findings as to whose conduct has led to an increase in the costs. On one view it might be that each party adopted at times an unreasonable and/or obstructionist approach to the conduct of the litigation. However, I am not able to resolve the competing assertions that each make against the other for the reasons advanced earlier.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
It could not be said that the proceedings were necessitated by a failure to comply with a court order. They were necessitated by the failure of the parties to compromise and reach any agreement.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 Fam LR 31).
I recognise that the respondent was wholly unsuccessful in the proceedings. This is a factor that favours the making of a costs order.
(f) whether any party has made an offer in writing
The applicant sets out in his affidavit and his written submissions offers of settlement made by him as well as offers of settlement made by the respondent. The offers made by the applicant commenced in July 2020 and concluded with an offer of settlement made on 23 August 2022. The offers of settlement made by the applicant between those dates increased such that on 16 July 2020 he made an offer at a conciliation conference of $50,000 and the recreational vehicle, and concluded with an offer on 23 August 2022 that he pay the respondent $350,000 and transfer to her the recreational vehicle.
Conversely, the offers of settlement made by the respondent ranged between an offer on 19 March 2019 that the applicant pay her the sum of $1,707,500 to an offer on 14 February 2022 that the applicant pay her $500,000, which included $100,000 from a superannuation split.
The respondent in her written submissions says the following:
33. It is further submitted that the offers made by the [applicant] at all material times throughout the proceedings were unrealistic, uncommercial and unpragmatic as:
a. The [applicant] was aware of the issues in dispute at all relevant times;
b. The [applicant] was aware that the [respondent] was agitating a claim for future needs and violence perpetrated by the [applicant];
c. The parties were too far apart in their respective positions, having regard to the disputed value of the [Suburb D] property; and
d. The [respondent] was unable to ascertain or properly consider the offers at all times, and particularly in 2022, by reason of the large discrepancy in the matrimonial asset pool of more than one (1) million dollars.
34. … It is submitted that, at all times that offers were made by the [applicant], there were:
a. Outstanding matters that precluded the [respondent] from having the “adequate knowledge” that she required to properly consider those offers; and
b. A genuine belief that her application had prospects of success, such that her decisions to reject offers of settlement made by the [applicant] from time to time were not “imprudent” or “unreasonable” in the legal sense.
(Footnotes omitted)
I do not accept that “the offers made by the [applicant] at all material times … were unrealistic, uncommercial and unpragmatic”. Quite to the contrary, the making of an offer in and of itself demonstrates realism, pragmatism and commerciality on the part of the applicant, particularly within the range of potential outcomes in this litigation.
I do not understand what is meant by the assertion “the [applicant] was aware of the issues in dispute at all relevant times”. This was not elaborated on in the written submissions. In relation to the respondent’s assertion that she was agitating a claim for future needs and violence, I simply note that she did not pursue before me any assertion referable to violence. While the assertion that the parties were at issue as to the value of the Suburb D property and thus the pool was unascertained may have had some merit at some point in the proceedings, it is clear that by the time the applicant made the offer on 23 August 2022 the issues as to value were well known to the respondent. In that respect, the previous single expert had valued the Suburb D property in March 2022 at approximately $3,000,000. The subsequent single expert report assessed the value as at the end of September at $3,400,000. Within the range of potential outcomes in this litigation as well as the risks at hand, the divergence was not such as to prevent the respondent from properly considering the applicant’s offers through the prism of risk.
I do not accept the submissions of the respondent that by the end of September 2022 or at the time of the hearing, there was a significant uncertainty as to the quantum of the pool.
I do not know what is meant by the assertion that there were “outstanding matters that precluded the [respondent] from having the ‘adequate knowledge’ that she required to properly consider those offers”. That is too nebulous and cryptic an assertion and, without lucid elaboration which was absent, I do not understand it. There were no apparent disclosure issues or valuation issues (or at least none that have been submitted with particularity) that prevented the respondent from considering the applicant’s offers by the end of September 2022.
As to the respondent’s assertion as to her genuine belief that her application had prospects of success, whatever her belief may have been is irrelevant to a consideration of the matters referable to the determination of the cost’s application. If that genuine belief was informed by advice, then that is a matter between her and her lawyers.
(g) any other matter the Court considers relevant
There is no other matter relevant.
I also note s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is as follows:
67 Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
The overarching purpose is reinforced by the Rules and the Central Practice Direction – Family Law Case Management (CPD), especially the core principles which include that parties must conduct the proceedings (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose.
CONCLUSION
These were proceedings in which at all times the applicant contended that the Court should not make an adjustive order. The factual matrix was largely not disputed and called for prudent consideration by the respondent of the perils of the litigation given the potential risks attenuated by the outcome.
I am satisfied that the applicant made prudent offers of settlement in an attempt to reduce the costs of the litigation and bring it to an end. I am not satisfied that the respondent adopted a similar approach. Her reasonable belief is in my view irrelevant given the findings that were ultimately made. As I said, if that belief is informed by advice then she may have remedies elsewhere.
I am satisfied that, where the respondent has been wholly unsuccessful and the applicant made offers of settlement at a time when the pool was reasonably certain, the circumstances are such as to warrant the making of a costs order. I am not satisfied, however, that the circumstances justify the making of an order of the type that the applicant seeks for the entirety of the proceedings.
I am satisfied that in all the circumstances it is justified to make an order that the respondent pay the applicant’s costs as and from 1 October 2022. By that date, the respondent had the updated valuation from Mr BB and, properly advised, should have been aware of the risks in the litigation. She nevertheless proceeded. The applicant had made what in the context of the outcome were generous offers which should not have been rejected and the respondent was wholly unsuccessful in the proceedings.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 11 May 2023
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