Piovene & Muhlfeld (No 4)
[2024] FedCFamC1F 733
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piovene & Muhlfeld (No 4) [2024] FedCFamC1F 733
File number: SYC 4211 of 2023 Judgment of: SCHONELL J Date of judgment: 5 November 2024 Catchwords: FAMILY LAW – COSTS – Where the respondent sought a costs order against the applicant – Where the applicant was wholly unsuccessful – Where the respondent sought costs against the applicant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on an indemnity basis. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Ananda Marga Pracaraka Samgha Ltd v Tomar (No 7) (2013) FCA 863
Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248
Kohan and Kohan (1993) FLC 92-340
Nada v Nettle (Costs) (2014) FLC 93-612
Piovene & Muhlfeld (No 2) [2024] FedCFamC1F 491
Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Number of paragraphs: 45 Date of last submission/s: 30 October 2024 Date of hearing: 14 October 2024 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Jones SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 4211 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIOVENE
Applicant
AND: MS MUHLFELD
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
5 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs and disbursements of the proceedings on an indemnity basis as and from 19 April 2024.
2.I certify for the attendance of senior counsel.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Piovene & Muhlfeld has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 19 September 2024, the Court made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that as between the applicant and respondent a de facto relationship never existed. The reasons for judgment for the declaration were delivered 19 September 2024 and published as Kaya & Prior (No 3) [2024] FedCFamC1F 614 (“the s 90RD proceedings”).
Following the s 90RD proceedings, the respondent filed an Application in a Proceeding on 1 October 2024 seeking an order that the applicant pay her costs of and incidental to the Initiating Application filed by the applicant on 14 June 2023 and the Application in a Proceeding filed by the applicant on 5 July 2024.
The costs were sought on an indemnity basis fixed in the sum of $524,775 and then in various alternate basis fixed at 60 percent of the above amount; alternatively, 45 percent of the above amount; alternatively, 30 percent of the above amount; and finally, alternatively on a party/party basis as agreed or assessed. The respondent also sought orders for the certification of senior counsel and that the applicant pay the respondent’s costs of and incidental to the Application in a Proceeding fixed in the sum of $7,000.
The orders were opposed by the applicant who sought an order that each party pay their own costs and made an oral application that if a costs order was made, it be stayed pending an appeal against the determination made 19 September 2024.
Consequent upon the filing of the Application in a Proceeding, directions were made for the applicant to file a Response and any affidavit in reply. The matter was listed for hearing on 11 October 2024. On that occasion, each of the parties filed a Case Outline document and made some brief submissions. In circumstances where there was no evidence as to the financial circumstances of each party, directions were made for them to file, should they wish to do so, a Financial Statement with short further submissions.
The applicant filed a Financial Statement, the respondent did not.
For the purposes of determining this application, I have read the following documents:
(1)Application in a Proceeding filed 1 October 2024;
(2)Affidavit of Ms Muhlfeld filed 1 October 2024;
(3)Case Outline document of Ms Muhlfeld;
(4)Written Submissions of Ms Muhlfeld filed 23 October 2024;
(5)Response to Application in a Proceeding sealed 9 October 2024;
(6)Affidavit of Mr Piovene sealed 9 October 2024;
(7)Case Outline document of Mr Piovene;
(8)Financial Statement of Mr Piovene sealed 18 October 2024;
(9)Written Submissions of Mr Piovene sealed 30 October 2024.
An application for costs is governed by the provisions of s 117 of the Act which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this 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) of the Act.
In Penfold v Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court determined that to make an order under s 117(2) of the Act, 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 a term such as “a clear case” is not necessarily a determiner of whether 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 in 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 at 130, the Full Court observed:
41. … Nowhere in subsection 2(A) or elsewhere in section 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 subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The Case Outline documents, affidavits and written submissions of the parties addressed what each of them regarded to be the relevant subsections under s 117(2A) of the Act. I propose to deal with them in the order in which they are presented in the written submissions.
(a) The financial circumstances of each party to the proceedings
Senior counsel for the respondent submitted that his client was a person of substantial means. I have all but a cursory understanding of the extent of the assets of the respondent arising from the s 90RD proceedings. That said, the respondent has elected not to place any evidence before the Court as to her financial position.
The applicant for his part has filed a Financial Statement. He contends that in the event that an order for costs was made, he would be made bankrupt. His Financial Statement reveals he is the owner of property at Suburb E having a value, he asserts, of $1,000,000 subject to a mortgage of $910,000, albeit he discloses no payments are made under the mortgage. He has some shares in private companies having a value he asserts of approximately $72,000, an investment of $135,000 and a motor vehicle. He says he owes one of his companies $320,000, owes the Australian Tax Office $84,943 and his lawyers $373,000. I accept that the applicant’s financial position on the basis of his submission would appear parlous. The respondent in her submissions raises questions as to the veracity of some of the applicants’ contentions. In the absence of cross examination, I cannot resolve the controversy.
Even assuming what the applicant says impecuniosity is not a bar to the making of a costs order (Nada v Nettle (Costs) (2014) FLC 93-612).
(c) The conduct of the parties to the proceedings
The respondent contends that the applicant’s conduct is a relevant matter in the consideration of 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.
The respondent contends that the applicant’s conduct was unreasonable, unmeritorious and led to an unnecessary increase in costs by bringing groundless contentions and a flagrant disregard for the facts known to him. In that respect, the respondent contends in her Case Outline the following:
25.The Applicant ran a case in which his evidence, in material respects, was either:
(a)demonstrably and knowingly false. For example, the Applicant alleged he occupied the [Suburb T] apartment, a contention that was groundless and showed wilful disregard of facts that must have been known to him;
(b) otherwise rejected, such as the Applicant's contentions that:
(i)he regularly stayed overnight at the Respondent's [Suburb W] property; and
(ii)as to the duration and frequency of the parties' sexual relationship; or
(iii)contradicted by evidence given by the Applicant on oath in earlier proceedings before the Court.
26.The Respondent's position on the above matters required the calling of numerous witnesses (whose evidence was accepted) to defend those contentions. This resulted in the Respondent having to incur unncessary [sic] costs, including by reason of the unnecessarily lengthened hearing to deal with those witnesses.
(Footnotes omitted)
I am satisfied that the 5 July 2024 application seeking the appointment of a single expert was in the circumstances an unmeritorious application. In that respect, the applicant contended through his then counsel that various electronic communications referred to by the respondent and witnesses in her case were “fake”. I refer to my Reasons for Judgment reported as Kaya & Prior (No 2) FedCFamC1F 491.
As it was, orders were ultimately made for the appointment of a single expert. The report prepared by the single expert did not become evidence in the proceedings and the applicant did not in the hearing repeat the contentions earlier advanced by his legal representatives, nor was it ever put to the respondent or her witnesses that the electronic communications were “fake”.
I am satisfied that the applicant’s conduct in the bringing of that application carrying with it the assertion that various communications were fake thereby challenging the integrity of the evidence of the makers of those communications to only then abandon such contention is conduct that would attract consideration of a costs order. The applicant, despite his legal representatives at the trial abandoning the contention maintains in his affidavit in support of his orders on the costs application that there were “fake text messages”. His Case Outline contends “The Respondent and her witnesses have knowingly misled the court with respect to fake messages” (Applicant’s Case Outline filed 11 October 2024, paragraph 8(g)). The perpetuation of this contention in his evidence and Case Outline does him no service.
I also have had regard to the ultimate findings on a key aspect against the evidence of the applicant in relation to the use and occupation of the Suburb T apartment. Those are matters that are relevant in the consideration of whether there are circumstances that justify the making of a costs order. In relation to the balance of the matters relied upon by the respondent, I am not satisfied that other aspects of the applicant’s conduct are such as to be regarded as unreasonable or unmeritorious notwithstanding various findings made against the applicant.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The applicant sought a declaration that there existed a de facto relationship between he and the respondent. He was ultimately unsuccessful and consequently wholly unsuccessful in the proceedings. This is a factor relevant to a consideration as to the making of a costs order.
(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
The respondent contends that the applicant made no offers to resolve the proceedings (Respondent’s Case Outline filed 9 October 2024, paragraph 38).
The respondent for her part made two offers of settlement. One was made on 5 April 2024, well before the commencement of the final hearing, which proposed that the Initiating Application of the applicant be withdrawn and dismissed, the trial dates be vacated, that an order for costs made by Campton J on 21 March 2024 be discharged, and that there be no order as to costs of the proceedings. That offer was clearly not accepted. Whilst the offer made what might be regarded as only a “small discount” it nevertheless represented a realistic and genuine compromise (Ananda Marga Pracaraka Samgha Ltd v Tomar (No 7) (2013) FCA 863 at [68]).
The second offer to resolve the proceedings was made on 27 August 2024, during the hearing. By that offer, the respondent proposed that the Court make a declaration that there was no de facto relationship between the applicant and the respondent but that the respondent would pay the costs of the applicant as to the sum of $300,000. That offer was not accepted by the applicant. Had that offer been accepted, then the applicant would have been in a far superior financial position than that which he currently faces.
I am satisfied that the offers of settlement are relevant to the consideration of whether to make a costs order.
(g) Any other matter the court considers relevant
The respondent contends that the applicant did not conduct the proceedings in a way that was consistent with the overarching purpose of family law litigation. In that respect, she contends that the applicant did not make any offers and did not accept the offers proposed by the respondent. The respondent submits in her Case Outline, the following:
38.The applicant ran a case in which his evidence in material respects was either demonstrably and knowingly false or otherwise rejected and necessitated the respondent incurring unnecessary costs. In doing so the applicant did not promote the efficient use of judicial resources, the efficient disposal of the proceedings in a timely manner or the resolution of the dispute at a cost proportionate to the importance and complexity of the matters in dispute
This submission essentially repeats earlier submissions under different sub-sections.
I am satisfied that the circumstances justify the making of a costs order. I reach that conclusion informed by my findings in relation to the way the applicant conducted the litigation in relation to the allegations relating to the Suburb T apartment, the contentions in relation to “fake messages”, that the applicant was wholly unsuccessful in the proceedings and on the basis of the offers of settlement made by the respondent.
I will now turn to consider whether the order should be made on an indemnity or party and party basis, from what date and whether in a fixed amount.
The authorities make plain that an order for indemnity costs is not one that is lightly made, and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis. In Kohan and 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 & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed 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 88as 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 Sheppard 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.
The respondent in her Case Outline contends that an order for indemnity costs is warranted for the following reasons:
3.The Respondent submits that the Court should exercise its discretion to depart from the general rule in s 117(1) of the Act and that an indemnity costs order is justified in the exceptional circumstances of this case because the Applicant:
(a)was wholly unsuccessful in the s 90RD proceedings;
(b)imprudently rejected 2 offers of settlement by the Respondent;
(c)increased the Respondent's costs through:
(i)running a case in which the Applicant's evidence, in material respects, was either:
(A)demonstrably and knowingly false, with wilful disregard of known facts;
(B)otherwise rejected; and
(C)contradicted by evidence given by the Applicant in earlier proceedings before the Court.
The Applicant's conduct thus prolonged the trial through groundless contentions that the Respondent was required to defend.
(ii)filing the July Application, which contained allegations that ought never to have been made and were abandoned by the Applicant on day 3 of trial, after the single joint expert report found them to be unsubstantiated and corroborated the Respondent's evidence: Affidavit of [Ms Muhlfeld] filed 1 October 2024 ([MM]) [10] - [12].
(A)The July Application concerned allegations by the Applicant (the Allegations) in respect of text messages exhibited to the Respondent's trial affidavit, and trial affidavits of 2 of the Respondent's witnesses, filed in March 2024: [MM] [10].
(B)During a directions hearing for the July Application on 17 July 2024, the solicitor appearing for the Applicant alleged that the text messages were "fake" (the Further Allegations): [MM] [10(a)], and
(d)failing to conduct the proceedings, settlement negotiations and the July Application in a way that promoted the overarching purpose, in accordance with the Applicant's duty under s 96(1) of the Act.
The respondent contends the exceptional circumstance that warrant the making of a costs order is the imprudent refusal to accept an offer of settlement. The respondent also contends that the applicant made allegations which ought never have to been made. In that respect, the respondent submits in her Case Outline the following:
15.The affidavit filed by the Applicant on 10 July 2024 in support of the July Application comprised "some 200-odd pages" and contained various assertions cast "in fairly hyperbolic" and "fairly imprecise terms".
16.At a subsequent directions hearing, the Further Allegations advanced by the Applicant's solicitor "went significantly beyond the contentions advanced on the affidavit and they include, now, a new contention. Namely, that the images were fake".
17.The Further Allegations were "a most serious allegation going to the integrity of the respondent’s evidence before the Court".
18.Counsel for the Applicant "did not resile from" the Further Allegations put by the Applicant's solicitor.
19.That Further Allegation was "the basis" upon which the matter was listed by the Court for determination.
20.The July Application sought extensive relief: [MM] [10(b)(iii)]. The "breadth of that Application was reduced quite significantly" on the date of the hearing.
21.The Applicant did not press the Allegations or Further Allegations with respect to [MM]-23(c) on 22 July 2024: [MM] [10(b)(i)].
22.The single joint expert found "no indicators" of manipulation and observed no signs "of tampering or manipulation, nor has any evidence to that effect been presented": [MM] [11]. No evidence of the allegations was found by the single joint expert or provided by the Applicant to the single joint expert: [MM] [11]. The single joint expert's findings were therefore entirely consistent with the Respondent's denial of the Allegations and Further Allegations, and her defence of the July Application: [MM] [10(a)].
23.The Applicant's legal representatives told the Court on the last day of trial in response to a direct enquiry that the Applicant no longer pressed the Allegations and Further Allegations: [MM] [12]. That concession was not volunteered.
24.Because of the Applicant's conduct, the Respondent incurred significant expense in legal fees to defend the Allegations and Further Allegations, which were proven to be unsubstantiated and abandoned by the Applicant at trial, and respond to correspondence from the Applicant and single joint expert: [MM] [13]-[14].
(Footnotes omitted)
I am satisfied there is merit to the respondent’s submissions in relation to the offers of settlement, the fact that the applicant was wholly unsuccessful and in relation to the allegations made by the applicant as to “fake messages” which were not pursued at the hearing.
On 5 April 2024, the respondent made an offer that was open for a period of 14 days that would have seen the trial dates vacated and the discharge of a costs order made 21 March 2024. As at that date, all the evidence relied upon by both parties had been filed. In that respect, the affidavits of the respondent were filed on 18 March 2024. Thus, by 5 April 2024, the applicant had three weeks to consider and digest the evidence of the respondent. The offer of settlement was open for a further two weeks.
I am satisfied that the applicant imprudently rejected an offer in circumstances where he would have known the case marshalled against him and in particular the assertions in relation to the occupation of the Suburb T property, the consequence of which was ultimately that findings were made contrary to the case advanced by him. After that date, the applicant made the allegations in relation to the “fake messages” and was consequentially wholly unsuccessful.
I am satisfied, having regard to all the matters that I am required to consider pursuant to s 117(2), including that the applicant was wholly unsuccessful and that the respondent had made offers of settlement, that an order for indemnity costs should be made. I am satisfied, however, that that order should date as from 19 April 2024, being the date upon which the offer expired. By that time, the applicant had nearly five weeks to have considered the evidence filed in the case against him and his refusal to accept the proposal of the applicant was, I am satisfied, imprudent such as to attract the descriptor of exceptionality that would warrant an order for indemnity costs.
I do not propose to make any order for costs for the period leading up to 19 April 2024. I am not satisfied that there is any aspect of the proceedings, or the applicant’s conduct of them other than in relation to his evidence about Suburb T that would warrant a costs order up to that date. The order will accordingly date from 19 April 2024 and be on an indemnity basis.
There is insufficient evidence before me to fix the sum in circumstances where, despite having the benefit of the Costs Agreements, there is no breakdown as to how the sum sought is arrived at. I am satisfied that the circumstances were such that it was appropriate to retain senior counsel given the complexity of the matter. The retention of senior counsel, I am satisfied given the way the hearing was conducted by him, led to the shortening of the hearing from an estimated seven days to three. Accordingly, it is appropriate that I certify for the appearance of senior counsel on behalf of the respondent.
The applicant made an oral application that if a costs order were made, it be stayed pending determination of his appeal. No submissions were made in support of that application, and it is proper that such application be determined after the filing of an application and affidavit in support.
I will make orders to give effect to the above.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 November 2024
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