Penner & Conroy
[2022] FedCFamC1F 283
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Penner & Conroy [2022] FedCFamC1F 283
File number(s): SYC 8355 of 2017 Judgment of: HARPER J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – COSTS – Applicant Wife seeks indemnity costs against Respondent Husband – Both parties of substantial wealth – Wife argues that husband caused her to undertake extensive and unnecessary work – Wife argues that husband’s disclosure requests amounted to fishing expedition – No adverse findings were made in the primary judgment about disclosure – Neither party wholly unsuccessful – Wife made three offers to the husband, last of which reflected the outcome the husband achieved at trial – Rejection of final offer was unreasonable – Order for indemnity costs not justified – Party and party costs ordered from date of third offer, as agreed or assessed – Costs of application for expert rental assessment of property excluded from husband’s liability. Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) r 1.04
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Cases cited: Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131
Brown v Green (2002) FLC 93-115; [2002] FamCA 791
Conroy & Penner [2022] FedCFamC1A 39
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Harris & Dewell (No 2) [2018] FamCAFC 180
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Medlon & Medlon (No 6) (2015) FLC 93-664; [2015] FamCAFC 157
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Penner & Conroy (No. 2) [2021] FamCA 411
Prantage & Prantage (Costs) [2014] FamCA 850
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Division: Division 1 First Instance Number of paragraphs: 50 Date of last submission/s: 8 October 2021 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr Campton SC Solicitor for the Applicant: Somerville Legal Solicitor for the Respondent: Blanchfield Nicholls Family & Private Advisory
Table of Corrections 29 July 2022 Order 2 was inserted, reading “Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), certification is given to the wife for engagement of counsel, including Senior Counsel.” ORDERS
SYC 8355 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PENNER
Applicant
AND: MR CONROY
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
29 APRIL 2022
Amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 29 July 2022
THE COURT ORDERS THAT:
1.The Respondent Husband (“the husband”) pay the costs of the Applicant Wife (“the wife”) of the proceedings from 13 March 2020, as agreed or assessed on a party/party basis.
2.Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), certification is given to the wife for engagement of counsel, including Senior Counsel.
3.The proceedings be listed before an appropriate judicial registrar for the purpose of conducting the assessment of costs in accordance with these orders and the appropriate rules under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
4.There be excluded from any assessment of costs payable by the husband conducted in accordance with Order 1, the costs of the application for a rental assessment of the property at E Street, Suburb F, filed by the wife on 12 June 2020, the instruction of the expert for the preparation of that assessment, the costs of the rental assessment prepared by Mr AA, and any other work and disbursements incidental to that rental assessment.
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 Penner & Conroy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These are property proceedings between the Applicant Wife, Ms Penner (“the wife”) and the Respondent Husband, Mr Conroy (“the husband”). These proceedings have been in this Court since December 2017, and the final hearing of the substantive property dispute took place from 30 November–3 December 2020.
On 21 June 2021, I delivered final judgment. The relevant procedural history and background to these proceedings are set out in that judgment: Penner & Conroy (No. 2) [2021] FamCA 411 at [3]–[31]. I will not repeat what I have set out in there unless necessary for this judgment.
In summary, however, the parties accepted that some property adjustment would be just and equitable, however differed entirely in their approaches to assessment of contributions. Central among the issues for debate in the substantive proceedings was how a sum of $3,214,692, being the remaining balance of sales proceeds of a property jointly owned by the parties in Suburb F, should be distributed. These funds were held in a controlled monies account. The wife sought the full sum, whilst the husband sought 65 per cent. There were also issues concerning a split of superannuation interests, with the wife arguing she should receive $1,500,000 from the husband’s superannuation, whereas he argued it should remain undisturbed.
On 21 June 2021, I made final orders effecting a 42/58 per cent division of the parties’ assets in favour of the husband. The practical effect of these orders was that the wife received the remaining funds held in the controlled monies account, as well as a superannuation split of $300,000 from the husband’s interest in his superannuation fund to the wife.
I also made orders permitting an application to the Court for costs to be made within 28 days of 21 June 2021, to be filed and served within that time period and a copy forwarded to my chambers.
On 16 July 2021, the wife filed an Application in a Case seeking an order for costs, together with an affidavit in support.
The husband subsequently appealed the final orders. The costs application was therefore not determined pending the outcome of the appeal. The appeal was dismissed on 24 March 2022: Conroy & Penner [2022] FedCFamC1A 39 (“the appeal judgment”). The husband was also ordered to pay the wife’s costs of the appeal, fixed in the amount of $30,000.
The parties consented to the costs application being determined on the papers. Accordingly, I made orders in chambers for the parties to file submissions and relevant documents. Both parties have complied with those orders.
The wife filed and served a tender bundle on 30 July 2021. The husband filed his response to the Application in a Case and tender bundle on 27 August 2021. The wife then filed written submissions on 17 September 2021, and the husband filed his written submissions on 8 October 2021.
ORDERS SOUGHT AS TO COSTS
By way of her Application in a Case filed 16 July 2021, the wife seeks the following orders:
1. That the Respondent pay to the Applicant her legal costs and disbursements of, and incidental to, the proceedings as follows:
1.1 On an indemnity basis fixed at the sum of $497,308.64; or
1.2 In the event that Order 1.1 is not made, then the amount of $419,110.84 which represents the costs from 27 September 2018 to date; or
1.3 In the event that Order 1.2 is not made, then the amount of $259,486.96 which represents the costs from 13 March 2020 to date; or
1.4 In the event that Order 1.3 is not made, then such costs as are calculated in accordance with the scale in the Family Law Rules 2004.
2. That the Respondent pay the Applicant’s costs of and incidental to this Costs Application in the amount of $7,560.
3. For the purpose of Order 1 and 2 above, the Respondent shall transfer the costs as ordered by the Court into the Applicant’s solicitor’s trust account within 60 days from the date of these Orders.
In his Response filed on 27 August 2021, the husband seeks no order for costs in his favour, but the following:
1. That the Wife’s Application in a Case for costs filed 16 July 2021 be dismissed.
2. In the alternative to Order 1, that the hearing and determination of the Wife’s Application in a Case filed 16 July 2021 be stood over pending the determination of the Husband’s Appeal against the Orders of 21 June 2021.
3. That in the alternative to Orders 1 and 2, in the event an Order for costs is made in favour of the Wife, that Order be stayed pending the determination of the Husband’s Appeal against the Orders of 21 June 2021.
4. That in the event that an order for costs is made in favour of the wife, the order specifically exclude any costs for work undertaken in relation to or incidental to:
(a) The application for a rental assessment of the [Suburb F] Property filed by the wife on 12 June 2020, the instruction of the expert for the preparation of that assessment, the costs of the rental assessment prepared by [Mr AA] and any other work and disbursements incidental to that rental assessment;
(b) The application by the husband filed on 22 September 2020 in respect of the inspection of Supreme Court files produced to the Family Court of Australia, and the consent order filed for the resolution of that application on 19 October 2020,and all work related to that issue;
(c) The dispute relating to the preparation of the letter of instruction to the single expert [Mr W] in the period 11 April 2019 to 31 May 2019 including in relation to the application filed by the husband on 30 May 2019;
(d) Disclosure relating to the restructure of the [G Group] in 2019 and 2020, including the provision of material in relation to that restructure to the single expert [Mr W].
5. That the applicant pay the respondent’s costs of and incidental to this application.
Orders 2 and 3 have become otiose, since the appeal has been heard and dismissed.
THE LAW
The relevant principles with respect to costs are well settled, and have been discussed by the Full Court in Parke & The Estate of the Late A Parke (2016) FLC 93-748, followed in Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131. The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Family Law Act 1975 (Cth) (“the Act”) applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2). In Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) referred to costs in the conventional sense, that is, as indemnity for another’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation (see Hayne J at [97]).
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A).
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient; Prantage & Prantage (Costs) [2014] FamCA 850 at [12] (“Prantage”); Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at [41].
The Full Court in Moorcroft & Moorcroft (2020) 60 Fam LR 361 confirmed that indemnity costs orders are awarded only in exceptional circumstances (see also Kohan & Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435).
The first question is whether the wife has established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in her favour. The second question is whether, if there are circumstances justifying a costs order, the husband should pay the wife’s costs on a basis, such as indemnity costs or as a fixed sum, other than costs as agreed or assessed on a party and party basis.
DISCUSSION
Section 117(2A)(a) – the financial circumstances of the parties
The total value of assets held by the husband at trial was $9,886,924, excluding his superannuation interests of $3,385,335. The husband remains unemployed. He submits that his main assets essentially comprise his current home, purchased in April 2021, his interest in C Company and his superannuation interests. The assets in C Company are not available until 2026, when he attains the age of 65 years, whilst his superannuation entitlements are not available until he retires.
The husband further argues that he will suffer significant financial hardship should a costs order be made against him, and that he will have no resources to make any payment other than from the forced sale of his home. But in circumstances where the husband’s appeal was dismissed, it is clear that even considering his current home, superannuation, and interest in C Company, he retains assets of significant value. He privately funded his appeal. The husband had recognised that in the event his appeal was to fail, he would be unable to resist an order for costs: [74] of the appeal judgment.
Conversely, the total value of assets held by the wife after trial was approximately $8,000,000, including her half interest in a property at Suburb CC, her interest in the businesses conducted by G Group and the balance of the controlled monies account pursuant to the orders of 21 June 2021 of about $3,214,692.
It is clear that both parties hold substantial wealth. I accept the wife’s submission that s 117(2A)(a) of the Act does not advance the interests of one party against the other. It is a neutral factor.
Section 117(2A)(c) – the conduct of the parties
The wife argues that the husband’s conduct during the proceedings was disproportionate to the issues in dispute and contrary to the overarching duty imposed on the parties by r 1.04 of the Family Law Rules 2004 (Cth), which is to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.” As at the date of this judgment, the 2004 Rules have been repealed. This makes no material difference because the equivalent provision under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) is also r 1.04, which is “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”
The wife submits that the husband produced voluminous affidavits, exhibits, and other material which was unnecessary and offended the overarching purpose of, and the duties imposed on parties by the Rules. The husband was represented by experienced solicitors and had both junior and senior counsel. This, she argues, means that he ought to have known that “the vast majority of his forensic processes and excessive disclosure requests produced simply a waste of time and money.”
The wife argues that this follows from the fact that the primary matters for determination were discrete. Only two assets on the Balance Sheet required adjustment, namely the controlled monies account and the husband’s superannuation entitlements. Both those assets remained constant throughout the proceedings.
Additionally, the wife argues that the husband’s disclosure requests amounted to a fishing expedition which unnecessarily complicated the proceedings and forced her to incur significant legal costs in order to comply with the requests. She points out that on the other hand, the husband failed to comply with a simple request for complete copies of his Income Tax Returns.
The wife specifically relied upon unnecessary work resulting from the husband serving seven Notices to Admit Facts, four of them prior to a conciliation conference and well before final hearing dates allocated. In the five weeks before final hearing, he served three further notices. Together, those seven notices were accompanied by 2201 pages of source material. The wife argues these notices did not narrow the issues in dispute and only served to increase the volume of unnecessary documents to be reviewed because wife had to respond to each notice.
The husband, for his part, contends that none of his requests were unreasonable or particularly onerous in circumstances where he was entitled to gain an understanding of the wife’s interest in the G Group. This group comprised several interrelated corporations and trusts which underwent significant structural changes during the proceedings. He also disputes the wife’s description of the matter as “simple”, arguing the wife failed to make proper and timely disclosure of significant changes to the structure of the G Group, the sale of a property at MM Street to a related entity, and maintained a position that her interests in the G Group had a significantly lower value than was agreed upon at trial. He points out that there was no agreement on value until after the appointment of a single expert and two reports.
The husband rightly points out that no adverse findings were made in the primary judgment about disclosure. Alleged deficiencies in disclosure played a very limited role in the trial. On the evidence, I am unable to make findings in this judgment about the contested claims concerning disclosure. The issues in the proceedings were not simple, as the wife contends. For example, there were difficult questions about the correct approach to the divisible asset pool, including whether a global or asset by asset approach should be adopted. I do not accept that any asserted problems with disclosure, a robust use of notice to admit facts in this case, or the other matters relied upon by the wife constitute circumstances justifying a costs order.
Section 117(2A)(e) – whether either party has been wholly unsuccessful
The wife submits that the husband was wholly unsuccessful in obtaining the relief that he sought in either his Amended Response or the subsequent Minute of Order submitted to the Court following closing submissions.
The husband denies that he was wholly unsuccessful. The wife’s contention takes an overly narrow view of the proceedings by focussing solely on the controlled monies account.
I cannot agree with the wife’s submission. Although I made final orders in respect of the controlled monies account which aligned with the wife’s proposed minute of order, I ordered only the transfer of $300,000, as opposed to $1.5 million, from the husband’s superannuation to hers. Although I did not accede to any of the husband’s proposed orders, I accept his submission that
these were not proceedings where one party pursued a hopeless case, a case that he or she knew or ought to have known had no prospect of success. It was not a case where the Court unequivocally rejected one party’s case in its entirety. Rather it was the exercise of discretion in a matter with competing claims as is the usual course in property settlement matters.
Although the husband did not retain his superannuation fund in its entirety, he retained a substantial portion, being $1.2 million. The wife obtained the order she sought in respect of the controlled monies account. I do not find that either party was wholly unsuccessful in these proceedings.
Section 117(2A)(f) – offers in writing
The wife submits that she made three offers, in writing, over the course of the proceedings in an effort to come to a reasonable compromise. The husband rejected all three offers, and the wife argues that had he accepted, he would have achieved a “vastly superior” result to that achieved at trial. Furthermore, the parties would have been spared substantial legal expenses and avoided the emotionally draining experience of protracted litigation after 2018, as well as the trial process in late 2020. She further submits that the husband did not, at any time, make any materially relevant offer. Although offers were made, these were, she argues, wholly unreasonable.
She relies on Robinson & Higginbotham (1991) FLC 92-209, where at [12], Nygh J described the purpose of section 117(2A)(f), which is
to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this Court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.
Furthermore, she also refers to Brown v Green (2002) FLC 93-115 at [57] in considering the purpose of s 117C of the Act, being that
the insertion of s 117C in the legislation is clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in the circumstances where there is adequate knowledge to the parties at the time of the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally to be given.
In respect of the first offer, made on 23 March 2018, the husband notes that it was only open for acceptance for one and a half working days from its receipt. Furthermore, that letter addressed a number of issues, and was itself conditional on the husband accepting a number of other propositions in the letter. I accept that the husband did not have sufficient time to closely consider the offer, although I do not find that it was not an attempt at a genuine compromise. Although the wife argues that the husband could have sought an extension of time on the offer, I agree with the husband’s submissions that, where the wife relies on s 117(2A)(f) to argue for a costs order in her favour, she bears the onus of demonstrating the offer was reasonable or that it was not reasonably accepted by the husband, justifying the Court departing from the ordinary rule in s 117(1). I do not accept the wife has demonstrated the husband’s refusal to accept the offer was unreasonable.
The second offer, dated 27 September 2018, was made in circumstances where the wife had not disclosed the purchase of a $4.3 million property in Suburb CC, there was no valuation of her interests in G Group, and the wife had not disclosed her interests in other entities, including in New Zealand. I do not consider it unreasonable for the husband to have refused this offer.
The third and final offer was made on 13 March 2020. The wife offered for balance of the sale proceeds of the Suburb F home, held in the controlled monies account, to be distributed $1,200,000 to the husband and the balance to the wife. The parties were to otherwise retain their assets. In circumstances where the husband sought 65 per cent of the sales proceeds of the Suburb F property, and I ultimately ordered for the wife to retain the entire balance of the controlled monies account, it is certainly arguable that his refusal to accept this offer was unreasonable.
The husband submits that at the time this offer was made, there were still a number of outstanding issues in the balance sheet. This included the wife’s estimate of the value of a property at Suburb CC, the value of C Company, and the wife’s interest in the G Group. I accept that these values were important for the husband to know in assessing likely outcomes at final hearing.
However, it should be noted that the parties did not agree on some of the items on the balance sheet, in particular the husband’s interest in C Company, until the final hearing itself. Although there were outstanding disputes, this will be the case for any property matter in the courts, and does not itself preclude parties from taking a commercial approach to offers of settlement, having regard to the costs of final hearing and their obligations under the Rules and the Federal Circuit and Family Court of Australia Act 2021 (Cth). It is relevant to note that, at this time, the husband adopted the value of $2,300,000 for the Suburb CC property in calculating his side of the Joint Balance Sheet. At final hearing, the property was held to have a value of $2,365,000. On the basis of that same balance sheet, the husband’s proposed pool of assets represented a 57.7 per cent division to the husband and 42.3 per cent to the wife. At final hearing, the husband achieved a 58 per cent division. This difference was negligible, and had the husband accepted the wife’s third offer, he would have avoided the costs of proceeding to final hearing, and enjoyed a substantially better result in the proceedings.
Accordingly, I accept the wife’s submission that it was unreasonable for the husband to have refused her third offer.
CONCLUSION ON JUSTIFYING CIRCUMSTANCES
The wife relied on four factors under s 117(2A) to justify an award of costs in her favour. However, I find that the only relevant consideration is the husband’s rejection of the third offer of settlement. His rejection of the third offer of settlement was unreasonable. I am satisfied this justifies an order for costs in the wife’s favour. The question thus remains the basis on which costs should be awarded.
INDEMNITY COSTS
The wife argues that the circumstances are such that the Court should award indemnity costs in her favour.
The award of indemnity costs in this Court has regularly been called a significant departure from the normal standard, is rare and requires something exceptional: Harris & Dewell (No 2) [2018] FamCAFC 180, where the Full Court said:
23. In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24. That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25. The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
(Footnotes omitted)
The wife relies on Medlon & Medlon (No 6) (2015) FLC 93-664 (“Medlon (No 6)”) for the proposition that imprudent rejection of offers of settlement alone justify an order for costs on an indemnity basis. I do not accept that Medlon (No 6) stands for that proposition, but do accept that an imprudent rejection of a reasonable offer may in some circumstances justify an order for indemnity costs.
However, on the basis that only the third rejection was unreasonable, I do not accept that the circumstances give rise to the “exceedingly rare” circumstances that demand an award of indemnity costs.
For the foregoing reasons, the husband should pay the costs of the wife on a party and party basis from 13 March 2020.
It is also apparent from the form of orders sought by the husband that he contends specific work should be excluded from any order for costs in the wife’s favour. The wife made no submissions about these orders. In support of them, the husband argued the work undertaken on these matters was discrete, is capable of identification in the event of an assessment of costs, caused unnecessary costs, and was essentially brought about by the wife’s conduct. Accepting the other matters raised on that submission, I do not accept that on the evidence I am able to reach the factual conclusion that the work was “essentially” brought about by the wife’s conduct. Accordingly, I do not propose to order that the specific work identified by the husband should be excluded from a costs assessment, other than the rental assessment, which was the subject of an order on 10 July 2020 for the wife to pay the expert’s costs of that assessment.
While I accept it would save the parties time and money to fix a sum for costs, in the complex circumstances of this case I do not have sufficient information to find a sensible basis for a fixed sum. Bearing in mind the quantum of costs claimed by the wife, and the specific exclusions claimed by the husband, it would provide a more just outcome if costs are assessed in the ordinary way according to the appropriate scalfpropertes.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 29 April 2022
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