ON & ON - [2008] FamCA 70

[2008] FamCA 70

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. MLF 7114 of 2001

IN THE MATTER OF:

MR ON (Husband)

and

MRS ON (Wife)

COSTS JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:               14 August 2007, 21 September 2007, 18 December
  2007
Date of Judgment:            12 February 2008

Appearances:

Mr Kirkham QC, instructed by Kennedy Wisewoulds, Solicitors, on behalf of the Applicant (wife)

The Respondent (husband) in person

CATCHWORDS:

FAMILY LAW – COSTS - Following a successful and lengthy retrial of a property application brought by the wife, application was made by her for costs assessed on an indemnity basis – Husband was entirely unsuccessful and serious findings had been made of his wilful failure to make full and frank disclosure, his unilateral treatment of the joint assets of the parties following separation, extravagance and reckless behaviour – Orders made for wife’s costs of trial to be assessed on a lawyer and client basis.

INTRODUCTION

Following handing down my reserved judgment on 10 July 2007 in the substantive property proceedings, the wife issued an Application in a Case on 3 August 2007 seeking an order that the husband pay her costs of and incidental to the final hearing and that such costs be calculated on an indemnity basis. The application was supported by an affidavit sworn by her and also filed on 3 August 2007. I have regard to the contents of that affidavit in which she deposed that as matters then stood, her total estimated costs amounted to approximately $723,147. She is bound by a Costs Agreement, dated 1 July 2001 and a variation to that agreement dated 28 June 2006. Copies of those Agreements were annexed to her affidavit.
The application came before me on 14 August 2007 on which day I ordered the wife to file and serve written submissions on or before 28 August 2007. I further ordered the husband file and serve his written submissions on or before 11 September 2007. The wife complied with my order and filed her submissions on the due date. The husband failed to comply and there has been no compliance even to this day by him in relation to my order, despite the passage of some five months, and longer.
On 13 September 2007 the husband caused to be filed an Application in a Case in which he sought an order that the wife pay his costs of the substantive proceedings. That application was supported by an affidavit sworn by the husband and also filed that day.
In his affidavit, the husband referred to his Form 1A Response filed on 29 November 2001 to the Form 1 Application filed by the wife initiating the proceedings on 5 November 2001. Given the lack of material provided by the husband, despite the various orders made by me, I propose to set out the contents of his affidavit which is as follows:
“2. In my response filed on 29/11/2001 I sought orders by which:
(a)the applicant wife received an amount of $4million together with one half of all furniture, antiques, artworks etc. and,
(b)otherwise I retained all assets and met all liabilities at that time.
3.Throughout the proceedings I made several other offers of settlement both personally or through my legal representatives, both in writing and orally. Details of these offers can be provided to the court if necessary. On a compliance basis these offers if accepted would have left the applicant wife in a better position than she finally reached after two defended trials and an appeal.
4.I attach a letter dated 6/12/02 from my lawyers and forwarded to the applicant wife’s lawyers. No response of any kind was received to that letter.”
The Form 1 Application of the wife and the Form 1A Response of the husband were filed shortly after they finally separated on 5 July 2001. In my judgment of 10 July 2007 I set out the evidence given by each of the parties concerning their version of the nett asset position at or about that time. It would not be unfair to observe that one can readily understand why it was that, at such an early stage in the proceedings the wife did not accept the proposal of the husband.
Furthermore, the proposal put in the alternative on behalf of the husband and dated 6 December 2002 borders, in my view, both as to timing and content, a most unsatisfactory situation. The author of the document at least had sufficient prescience to observe:
“Whilst our client appreciates that the foregoing proposal is a little unorthodox, and not consistent with the approach normally adopted by Family Law practitioners, it nonetheless provides your client with long term financial security, as well as an income stream sufficient to meet her requirements. It also enables your client to remain in the [T] property, and to have the exclusive use of the [A] property with the children. The offer also addresses estate planning issues in the broad sense.” (p 3-4)
The contest between the parties came before me again for mention only on 21 September 2007 on which day I ordered that the husband file and serve written submissions on costs not later than 21 October 2007. Further orders were made providing the wife to file and serve any responding submissions. Again, the husband failed to obey the order. In any event, as I pointed out in my judgment of 18 December 2007 (par 4) I was informed by Mr Kirkham that the wife, as an indulgence to the husband, agreed to an extension to 2 November 2007. Notwithstanding that, no submissions were filed.
On 15 November 2007 the wife caused to be filed an Application in a Case in which she sought an order that the husband’s application of 13 September 2007 be dismissed and that her application for costs filed on 3 August 2007 be heard and determined as an undefended proceeding. I have regard to the contents of the wife’s affidavit in support of that application and also filed on 15 November 2007.
In my judgment of 18 December 2007 and in the course of surveying the background to the matter following my handing down the judgment of 10 July 2007, I referred to and dealt with the wife’s Form 2 Application in a Case filed on 6 December 2007. In the course of that judgment, I had this to say.
“17.As to the order of 21 September 2007, the husband blandly conceded, "I failed to comply”, and went on to say, "I apologise”, adding, "I don't believe I should pay costs”. It seems to me that this is now the end of the road in relation to a number of these matters, save for the spectre looming on the horizon of another trial, as indicated firmly by the husband in the course of his submissions, evoking conceptually the sword of Damocles.
18.This has been a tortuous process for the parties, for the court and for all legal practitioners. There have been two trials. There has been a successful appeal in relation to the first trial. The second trial spanned some two weeks. It was a highly complex matter. A judgment of considerable length was delivered with fair speed and speaks for itself. The issue that I am to deal with, in substance, is that of costs. The husband has undisguisedly failed to abide the orders I made as far back as 14 August 2007.
19.In normal circumstances I would see this as the end of the road, frankly, and brook no further convenience. However, in the whole of the circumstances of this matter, I will give him one final opportunity which arises from an order that I should necessarily make concerning submissions by the wife in relation to “prior offers”. That opens the door in my view to provide to the husband one last chance for the filing of submissions in relation to costs. However, and I make it clear, this is the last port of call. If the husband fails to abide the order for the filing of written submissions on costs, then given the whole of the circumstances which I have relayed in this short extempore judgment, and having regard to the submissions put to me by both Mr Kirkham and the husband, the wife's application for costs will proceed on an undefended basis.
…
21.It appears to me also appropriate, given the current financial circumstances of the husband as outlined by him to me in the course of his submissions and the issue raised by the wife, that each of the parties should file a current statement of assets and liabilities. That of course is a necessary matter for my consideration pursuant to section 117(2A) of the Family Law Act 1975 (as amended).”
On 18 December 2007 I ordered that each of the husband and wife do file and serve on or before 15 January 2008 a statement of their current assets and liabilities. Each of the parties has complied with that order. I further ordered that the wife file and serve supplementary written submissions on costs dealing with the issue of “prior offers”. In compliance with that order, the wife caused to be filed her supplementary submissions on 15 January 2008. I further ordered that the husband file and serve his written submissions as to costs not later than 23 January 2008 and that in default, the wife’s application for costs proceed on an undefended basis. The husband has again failed to comply with my order.

SUBMISSIONS

The written submissions filed on behalf of the wife were clear, succinct and predictable relying upon clear propositions of law. It was submitted that the circumstances of the case warranted the making of an order that the husband pay the wife’s costs assessed on an indemnity basis, relying upon such well-known authorities as Kohan v Kohan (1993) FLC 92-340; Colgate Palmolive Company & Anor v. Cussons Pty Ltd (1993) 46 FCR 225 and Munday v Bowman (1993) FLC 92-784.
The submissions addressed the provisions set out in s 1172A of the Family Law Act 1975 (as amended), including the financial circumstances of the parties and significantly, for the purpose of these proceedings, the issue of “conduct” relying upon various of my findings recorded in my judgment of 10 July 2007. It was further submitted that the husband’s failure to comply with previous orders of the court “… drastically reduced the size of the pool” of assets which had a negative impact upon the wife, both in time spent by her in the pursuit of ascertaining the nett pool of assets for distribution by the court, its ramification as to costs and otherwise impact upon her quest for a fair adjustment.
It was submitted that the wife was “wholly successful” in her application and secured a court order after lengthy litigation in the terms which she sought at the commencement of the trial before me. It was further submitted that as a direct result of the husband’s reckless conduct and wastage, the assets accumulated by the parties over a long marriage have been dissipated to the extent where the wife’s just entitlement could not be realised. In particular, reference was made to my finding that:
“On the basis that the asset pool be notionally re-constituted by bringing into account the two [UK] properties the total assets would amount to about $8,500,000 and what the wife seeks by way of orders of this court represents 46.5% of that sum. She is entitled to more. No matter how one re-constitutes the pool of assets, having regard to the husband’s financial conduct, his improvidence and recklessness post separation, the ‘notional’ entitlement of the wife can not be achieved.” (par 519)
Having conceded that indemnity costs should only be awarded in “exceptional” circumstances or where there was some “special or unusual feature in the case to justify the court in departing from the ordinary practice”, it was submitted on behalf of the wife that this case was one where there was evidence of a “particular misconduct causing loss of time to the court and to other parties”, which included the following:
“17.1His abject failure to make full and frank financial disclosure, which included deliberately misleading the Court;
17.2His surreptitious and underhanded behaviour in dealing with the parties’ assets without notice to the wife and in attempting to conceal assets from the wife;
17.3His clear and unequivocal breach of extant injunctive orders;
17.4His failure to disclose highly relevant transactions, which was tantamount to giving false evidence – ‘the husband gave false evidence by omission’, (relying upon par 231(iv) of my substantive judgment).”
In the result, it was submitted that it was by reason of the husband’s conduct the wife incurred substantial and exceptional legal costs including the cost of pursuing full and frank disclosure, costs associated with the trial of ten days duration and the requirement to file and serve numerous subpoenas.
On the issue of prior offers raised by the husband in his affidavit of 13 September 2007, it was acknowledged that pursuant to s 117(2A)(f) of the Act that I am required to have regard to whether either party to the proceedings had made an offer in writing to the other in an endeavour to settle the proceedings, together with the terms of that offer. It was submitted that such a provision did not have any particular priority, and that its importance “must surely be weighed in the light of all the circumstances of the case” (Robinson v Higginbotham (1991) FLC 92-209) and that such an offer must be considered in the context of each case and to the extent of the offeree’s knowledge of the financial circumstances of the parties (Pennisi v Pennisi (1997) FLC 92-774).
It was further submitted on behalf of the wife, and with some force it seems to me, that she was at the time of the offer in no position to seriously consider that proposed by the husband. It was an offer made shortly following the separation at a time where valuations had not been undertaken and the extent of the asset pool properly established. That position remained the same as at the date of the letter from the husband’s solicitors dated 6 December 2002. At that time, the wife was in the process of investigating the husband’s financial circumstances together with that of the business.
It was the contention on behalf of the wife that proper disclosure had not been made by the husband at the time of the offer. Furthermore, as pointed out by the wife, her quest for full and frank disclosure by the husband was a difficult one and in the result, and notwithstanding a trial spanning two weeks, it was emphasised that in the course of my findings I had this to say:
“However, given the history of non-disclosure and what I regard as the husband’s lack of credibility as a witness, I’ve been left with a lingering doubt as to whether he has, in reality, presented his true financial position.” (par 75)

CONCLUSION

The applicable section of the Act is as follows:
“117(1) [Party bears own costs] Subject to sub-section (2) and sections 117AA and 118, each party to proceedings under this Act shall bear his or her own costs.
117(2)[Costs Orders] If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in so doing, the court may, subject to sub-sections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”
Section 117(1) of the Act is the basic provision which lays down the general principle that each party shall bear his or her own costs of the proceedings. However, if there are circumstances which “justify it in so doing”, I may make an order for costs (s 117(2)). When considering what order, if any, I should make under sub-section (2), I am obliged to have regard to those matters set out in sub-section (2A). In so doing, I note that it is not, however, an exclusive list having regard to the wide terms of para (u), namely “such other matters as the court considers relevant”.
Accordingly, when considering an application for costs, I must identify and balance the relevant matters enumerated in that sub-section in order to determine whether or not to make such an order. There is clear authority directing me to that course. My task is not a difficult one, given that the relevant paragraphs relied upon by Mr Kirkham have been addressed by him in the written submissions.
Further, it is not necessary that I be satisfied there is a “clear case”, or an “an exceptional case” in order to justify my making an order for costs. The requirement is that there are matters in combination of s 117(2) and (2A) which “justify” the conclusion that costs should be ordered. Accordingly, the overall structure of the Act is to provide me with a broad discretion, the exercise of which commences with the general rule stated in s 117(1) of the Act.
I am satisfied that in the discrete circumstances before me it is appropriate to order that the husband pay the costs of the wife of and incidental to the trial for there are clear circumstances, in combination, justifying such an order. As to the exercise of judicial discretion in an application of this nature, see Penfold v Penfold (1980) 133 CLR 311 and Collins v Collins (1985) FLC 91-603.
I accept the submissions of Mr Kirkham. In making an order for costs I place significant weight upon the financial circumstances of each of the parties (s 117(2A)(a)), the conduct of the parties to the proceedings (s 117(2A)(c)) and the fact that the husband has been wholly unsuccessful (s 117(2A)(e)). Thus the issue is whether I should order costs assessed on an indemnity basis or some other, and if so which, basis. Although I am proceeding on an undefended basis, the husband having failed dismally to comply with my order of 18 December 2007, despite concessions being made in his favour, I act on the raw basis that he opposes the making of any such order for the limited reasons advanced by him, relying upon his prior offers of settlement as earlier described in the judgment.
Dealing firstly with the financial circumstances of the parties. The wife caused to be filed an affidavit on 15 January 2008 broadly setting out her current assets and liabilities. She otherwise relied upon her Financial Statement filed on 3 August 2007. I have regard to those documents in coming to my determination. It is clear that her position unexpectedly improved following the orders I made on 10 July 2007 with the sale of the former matrimonial home at T which well exceeded, and in a rising market, the estimate of value at the time of trial.
The husband’s position is recorded in a document filed 15 January 2008 in which, in short form, he asserted that his liabilities exceeded his assets by some $57,000. In the course of the hearing before me on 18 December 2007, I was informed by the husband that he had sold the CBD2 property for $2.75M which, as I recall it, exceeded the ascribed value at the time of trial. I note that the husband’s document filed 15 January 2008 does not appear in affidavit form. However, for the purpose of this judgment I will accept his broad statement.
In coming to my determination on costs I take into account as a general proposition that the husband’s financial situation is a difficult one in which he labours under considerable debt. I also take into account my finding that given the history of non-disclosure on the part of the husband and his lack of credibility as a witness, that I was left with a “… lingering doubt” as to whether he had presented his true financial position (par 67 of judgment delivered 10 July 2007). Furthermore, at that time I was not satisfied that the husband had revealed the real truth relating to his dealings with the joint assets of the parties (par 489).
Matters relating to the financial circumstances of the parties is but one of the factors I am to take into account in the exercise of my discretion and to which I pay due regard. There are other considerations which I regard as carrying greater significance, which I shall shortly address. Straitened or modest financial circumstances of a party will not necessarily afford protection against a costs order which may be, in appropriate circumstances, seen as “one of the perils” in instituting a misconceived process (albeit argued as an issue on appeal see KT v KJ and TH (2000) FLC 92-032 per Holden J at 87,510).

In coming to my determination, I am also required to take into account the conduct of the parties. I accept the submissions of the wife, (paragraphs 8 to 10 inclusive), for it is clear from the terms of my judgment delivered 10 July 2007 that the husband failed in his obligation to make full and frank disclosure, that he withheld material documents and, at times was quite misleading in the giving of his evidence.
It is also clear that the husband’s failure to assist the wife (and thus the court) in assessing the net asset situation was quite obvious in a number of instances which are reflected in my judgment. Overall, I regard the issue of the husband’s conduct to be significant in the exercise of my discretion on the important issue of costs.
I also take into account that the wife was wholly successful in the proceedings before me. From the date of the commencement of the proceedings, the litigation avenue was a long and tortuous one during which the asset position changed markedly in the circumstances recorded by me in my substantive judgment. At the time of commencement of the trial, I had dealt on an interlocutory basis with a number of very important issues which have been variously described in my earlier judgments.
That which the wife sought through Mr Kirkham when the trial commenced transpired to be, following some two weeks of costly litigation, that which was ordered in her favour on 10 July 2007. In stark contrast, the husband’s claim failed and was, in the whole of the circumstances, one plainly out of touch with reality.
Given that I find it is appropriate in the discrete circumstances before me to order costs in favour of the wife, I now turn my attention to whether those costs should be assessed on an indemnity basis or some other, and if so what basis. I accept the legal submissions of Mr Kirkham concerning circumstances in which such an order may be made. More recently, the Full Court in JEL v DDF (No. 2) (2001) FLC 93-083 per Kay, Holden and Guest JJ at p 88,441 had this to say:
“62. The issue remains as to whether or not those costs ought to be ordered on an indemnity basis. The category of cases in which it would be appropriate to make an order for indemnity costs does not appear to have been fully defined. The Full Court has, however, set out some general principles. In Kohan and Kohan (1993) FLC ¶92-340 the Court said at 79,614:
``The Proper Exercise of the Discretion
The intent of s 117(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 368 at 368 to 370.''
63. The principles that emerge from the authorities were conveniently summarised by Sheppard J in Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225. His Honour in that case summarised the position as follows:
``...
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...
3. This has been the settled practice for centuries in England. It is a practice that 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...
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...''
64. His Honour then went on to note some of the circumstances which have been thought to warrant the exercise of the discretion to award costs on an indemnity basis. His Honour said at 233:
``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 (supra)); 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 Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). 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.''
65. Insofar as an imprudent refusal of an offer to compromise is concerned, the authorities giving rise to this proposition are in the main New South Wales authorities. The Full Court warned in Kohan (supra), that this is in part attributable to the amendment of the Supreme Court rules of that State which provide for indemnity costs where a plaintiff obtains judgment in terms no less favourable than those of an offer to compromise made by him and not accepted by the defendant.
66. In Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC ¶93-029 the Full Court specifically acknowledged the category of cases that may give rise to an indemnity order are not closed. The Court said at 87,471:
``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.''
67. In his written submissions, counsel primarily relies upon the assertion that the wife imprudently refused an offer to compromise.
68. We accept the proposition that the objective of the statutory provision in relation to written offers is to encourage settlements and to reduce the cost of litigation to the parties and the community. That, however, does not mean that the failure to accept an offer will necessarily result in an order for indemnity costs.
69. As the Full Court said in Kohan (supra):
``Insofar as an unaccepted offer of compromise which exceeds a judgment may justify an order for costs, the general practice in this jurisdiction so far has been to order no more than costs on a party and party basis. Even in cases where there has been dishonest concealment of assets or income as in Penfold v Penfold (1980) FLC ¶ 90-800 and Oriolo and Oriolo (1985) FLC ¶ 91-653, no more than party and party costs have been awarded.''
70. In our opinion, the failure to accept an offer which in retrospect, perhaps, should have been accepted is without more, insufficient to justify the making of a costs order on an indemnity basis. The rejection of the offer must be at the very least imprudent. We express no opinion as to when the rejection of an offer may be so classified. It is clear to us in the circumstances of this case that the rejection of the offer, although unwise in retrospect was not imprudent.”

I proceed on the basis that departure from costs on a party and party basis should be of an “exceptional kind” and that indemnity costs are an exception to the usual rule and should only arise where there are “special or unusual” features. It has been said that:
“… even in cases where there has been some dishonest concealment of assets or income as in Penfold v Penfold (1980) FLC 90-800 and Oriolo v Oriolo (1985) FLC 91-653, no more than party and party costs have been awarded.”
(Kohan v Kohan (supra) at p 79,615)
I have carefully considered the submissions on behalf of the wife and, on balance, I am not persuaded that it is appropriate to make the orders sought. It is a finely balanced decision, for strong argument has been advanced in support of the application. It must be remembered that I am dealing with the costs of and incidental to the final hearing which encompassed a substantial volume of evidence relating to the husband’s conduct over many years and which has, in part, been dealt with by me in earlier judgments on an interlocutory basis.
The husband appeared as a litigant in person. He was provided every element of professional courtesy and fairness by Mr Kirkham during the course of the trial. There were occasions when his procedural disposition was a waste of time causing delay and a prolongation of the trial. He was utterly unsuccessful and that which he sought transpired to be, in the fullness of time, plainly out of touch with the overall reality of the contest between the parties and my task pursuant to the provisions of s 79(4) of the Act.
I have made strong findings when dealing with his credibility as a witness. For example, that concerning the overall circumstances of the sale of the property at G1 and the manner in which he dealt with the proceeds which was also the subject of an interlocutory judgment delivered by me on 7 February 2007.
I also take into account the actual distribution of assets dealt with by me and the subsequent windfall in favour of the wife and the public sale of the former matrimonial home. It is ultimately a discretionary exercise on my part and a synthesis of all the competing separate particulars to which I must turn my attention when considering the application for indemnity costs.
Having earlier in this judgment referred to the “usual” orders of the court, when circumstances justify the making of an order for costs, the Family Law Rules also provide pursuant to Rule 19.19 I may order that Rule 19.18 does not apply and that a party may be entitled to costs as assessed on a lawyer and client basis (see Rule 19.19(1)(b)). Rule 19.19(2) sets out some of the considerations that may be taken into account in making an order under that sub-rule which includes the importance, complexity or difficulty of the issues (Rule 19.19(2)(a)), the reasonableness of each party’s behaviour (Rule 19.19(2)(b)) and expenses properly paid or payable (Rule 19.19(2)(f)). Furthermore, there is power for me to find that a party is entitled to costs which I may fix in a specific amount (Rule 19.19(1)(a)).
I appreciate the terms of the wife’s application filed 3 August 2007 and notwithstanding, it is open to me to make such order for costs as I consider appropriate in the whole of the circumstances arising from the trial. I am satisfied for example, that it was most appropriate for the wife to engage both senior counsel and junior counsel given the complexity and difficulty of the issues for my determination. It was a long and complex trial. In these circumstances, it is proper for me to certify for counsel, including senior counsel pursuant to Rule 19.50.
The provisions of Rule 19.19(2) permit me a wide and unfettered discretion when turning my mind to those matters enumerated for consideration. The numerous issues I was called upon to determine are set out in great detail in my judgment of 10 July 2007. It is painfully obvious from the content of my long judgment that the issues were important, complex and difficult and that the behaviour of the husband was utterly unreasonable. On the other hand, the wife’s behaviour in the conduct of her case was reasonable. She succeeded in achieving the orders sought by her. The husband’s opening position at the commencement of the trial was unsustainable and he failed.
In my view the wife incurred expenses properly payable and in the reasonable pursuit of her claim at trial. In all these circumstances I am quite satisfied in the exercise of my discretion that it is appropriate in the discrete circumstances of this case that the husband should pay the wife’s costs to be assessed on a lawyer and client basis as agreed or in default of agreement, to be assessed under the Rules and I will direct that Rule 19.18 does not apply.
The final matter for my consideration is the issue raised by the husband concerning the previous offers set out in his Form 1 Response filed 29 November 2001 and the letter from his former solicitors to the wife’s solicitors dated 6 February 2002 which was subsequently withdrawn on 13 January 2003.
As submitted on behalf of the wife, I am required to have regard to matters such as this and in my view the husband is seeking to attach far too much significance on the two matters raised by him, particularly given their timing and content. By that I mean one has to bear in mind the wife’s knowledge, or lack thereof concerning the factual financial circumstances of the parties at the time and during the life of the offer.
The offer made was very early in their separation, overall values of the assets were in contest as were liabilities all of which required investigation. I have in the course of my substantive judgment recorded certain evidentiary findings during that time including the husband’s conduct and oral representations to others. It was, in my view, quite reasonable for the wife not to accept the “offers” advanced at that time, so many years ago.
The struggle for the wife to have a clear and unambiguous understanding of their financial situation was a long and tortuous one fully recorded in my judgment and even, as at the conclusion of the trial, I retained a “lingering doubt” whether the husband had, in reality, disclosed his true financial situation. In my view, the husband’s reliance upon the prior offers is quite without merit. He was determined at all times to wrest the former matrimonial home in T into his possession and/or control. As demonstrated by the terms of my judgment and orders, he failed.
The orders of the court will be:
47.1That the husband do pay the wife’s costs of and incidental to the final hearing to be assessed on a lawyer and client basis as agreed or in default of agreement to be assessed under the Family Law Rules (2004) Cth AND I DIRECT that Rule 19.18 of the Rules does not apply.
47.2That the husband do pay the wife’s costs of and incidental to her Application in a Case filed 3 August 2007 as agreed or in default of agreement to be assessed by the Registrar of the Court.
47.3That the Form 2 Application in a Case filed by the wife on 3 August 2007 and the Form 2 Application in a Case filed by the husband on 13 September 2007 be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.
47.4That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including senior Counsel.

I certify that the preceding 47 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.

Associate to Guest J