Rooke and Benlow and Anor (No. 2)

FAMILY COURT OF AUSTRALIA

ROOKE & BENLOW AND ANOR (NO. 2)

[2007] FamCA 1504

FAMILY LAW – COSTS – Costs ordered in the sum of $126,527 to be paid by husband to wife

Family Law Act 1975 (Cth)

In the Marriage of Kohn (1977) 30 FLR 175
PBF & TRF and LKL (2005) FamCA 158
Brown & Brown (1998) FLC 92-822

APPLICANT:

Ms Rooke

FIRST RESPONDENT:

Mr Benlow

SECOND RESPONDENT:

Ms Satsi

FILE NUMBER:

DGF

2729

2001

DATE DELIVERED:

9 November 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 & 9 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A.G.E. Robinson

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

THE FIRST RESPONDENT:

In person

THE SECOND RESPONDENT:

In person

Orders

That a transcript of my comments from approximately 11am this morning by prepared and when prepared a copy be made available to each of the parties.
That the applicant wife have leave to withdraw the contempt application filed 30 October 2007.
That pursuant to section 106B of the Family Law Act 1975 the transfer of the real property at …, B from the joint names of Ms Satsi and Mr Benlow enter the sole name of Ms Satsi signed 13 June 2007 be set aside.
That the husband and Ms Satsi do all such acts and things and sign all such documents as are prepared by the practitioners for the wife and are required to transfer the real property at …, B back into joint names of Ms Satsi and Mr Benlow and do so by 5pm this day. In the event that the husband and/or Ms Satsi fail or neglect to execute such documents as are provided by the solicitors for the wife by 5pm this day it will be sufficient proof of their non compliance for Ms Blizzard, solicitor, to state in a letter addressed to a Registrar of the Court that one or the other of them has failed to comply.
That pursuant to section 106A of the Family Law Act 1975 the Registrar of the Family Court of Australia is hereby appointed to execute all deeds and documents in the name of the husband and/or Ms Satsi and do all acts and things necessary to give validity and operation to all such deeds and documents so as to effect the transfer of the interest of Ms Satsi in the property situate at and known as …, B, Victoria into the joint names of Ms Satsi and the husband.
That the application of the wife filed 30 October 2007 be otherwise dismissed.
That the husband pay to the wife the sum of $126,527.25 by way of a contribution to her costs of and incidental to the proceedings finalised before Watt J on 28 April 2006, the enforcement proceedings taken by the wife which are incomplete (but include costs incurred up to the end of today), the application filed by the wife on 30 October 2007 seeking relief pursuant to section 106B and the wife’s costs of making this application for costs, such payment to be made on the expiration of one (1) month.
That my reasons for judgment in relation to costs and my reasons for judgment in relation to section 106B relief be transcribed and when transcribed a copy be made available to each of the parties.
That by way of enforcement of monies due to the wife pursuant to Orders made on 28 April 2006, the husband and Ms Satsi do all acts and things necessary to transfer to the wife Ms Rooke all of the husband’s right, title and interest in the property at …, B, such interest in the property to be held on trust for sale and unless the wife is paid all monies owing to her by 10 December 2007, the husband’s interest then be sold altogether out of Court with the wife to have conduct of the sale and upon settlement of the sale the net proceeds thereof be paid to the wife and applied by her, first, in payment of any monies owing to the wife pursuant to the Orders of 28 April 2006 and, second and subsequently, in payment of monies owing by the husband to the wife pursuant to any other orders of the court including the order for costs made by me today and, finally, any balance then remaining be paid to the husband.
That the respondent husband and the third named respondent, Ms Satsi, do all acts and things necessary including authorising and requesting production of the duplicate certificate of title and any necessary endorsement on the transfers of land as are required to enable the transfers of land provided for in this Order to be registered by the Land Titles Victoria.
That for the avoidance of doubt the wife is responsible for preparation of any documents necessary to effect a transfer of the husband’s interest in the property to the wife and a subsequent sale of that interest in the property.
That I reserve liberty to Ms Satsi to be heard to vary or set aside the preceding paragraphs of this Order (in relation to execution of a transfer of the husband’s property interest to the wife and documents incidental thereto) providing that it be on notice to all other relevant parties and such liberty to apply must be exercised by 26 November 2007.
That otherwise all extant applications be dismissed and remove this case from the list of pending cases maintained by the Court.
That I reserve liberty to each other party generally to apply in relation to the implementation of this Order on notice to each other party.

IT IS NOTED that publication of this judgment under the pseudonym Rooke & Benlow and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2729 of 2001

MS ROOKE

Applicant

And

MR BENLOW

First Respondent

And

MS SATSI

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me in the defended list. After consultation with the parties who are the wife represented by Mr Robinson of counsel and the husband who is self-represented, I have dealt with various issues separately. This judgment relates to my decisions in relation to costs and, in particular, that the husband ought pay some part of the wife's costs of and incidental to proceedings which were initiated in this court under Part VII of the Act for a final alteration of property interests, the enforcement of those orders and various other ancillary applications which were required to be made and, finally, the costs of making the application for costs.
In dealing with the costs application, I have by agreement between the parties dealt with it in four parts. Those parts are:
a)first, the costs of the proceedings for final alteration of property interests which were concluded by the judgment of Watt J delivered on 28 April 2006 and following the days of hearing which were 22, 23, 24 March 2005, and 27 and 28 June 2005;
b)second, there are the costs of enforcing the orders made by Watt J up to today, it being the case that Watt J ordered that husband pay to the wife $111,002 by a certain date, and he failed to do so;
c)third, following on from various enforcement orders, the husband transferred his interest in his residence at B, to his wife, Ms Satsi, and that transaction has been set aside by me pursuant to s 106B. The wife seeks costs associated with that application; and
d)fourth, the costs of the costs application.
I indicated early in this hearing that, whereas I thought that the wife's application might be compelling as to part, from a preliminary perspective I did not see that at its highest it represented the sort of case in which I would be prepared to properly order indemnity type costs.
Before I discuss the general provisions in relation to costs, I record here that the parties agreed to call the costs of the proceedings (that is the first category of costs) $75,000 instead of the $113,000 which was calculated on an indemnity basis and the costs of the enforcement part of the proceedings also $75,000 instead of $138,000. The higher calculations were by reference to a costs agreement in force between the wife and her solicitors Lander and Rogers.
I would not have imposed on the parties a sum certain in relation to both sets of costs. That said there is enormous commercial sense in them having agreed to that course themselves.
Section 117 of the Family Law Act 1975 contains the general rule that each party to proceedings under the Act shall bear his or her own costs. The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose (see In the Marriage of Kohn (1977) 30 FLR 175 at 177). However, the court retains a discretion to make an order for costs if it is of the opinion that there are circumstances that justify that course and it would be just to do so.
In considering whether to make an order for costs, the court must have regard to the matters 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.
The weight to be attached to any of the considerations in subs (2A) is wholly discretionary. Whilst no single factor outranks any other factor, there nothing to prevent one or more of the factors from being the sole foundation for a costs order (see PBF & TRF and LKL (2005) FamCA 158 at paragraph 41). As Kay J observed in the matter of Brown & Brown (1998) FLC 92-822 at 85,347:
In many cases there will be an outstanding feature ... that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other section 117(2A) considerations.
I now turn to the four categories of costs which are required to be determined by me.

Costs of the proceedings at $75,000

The first is the costs of the proceedings, and they are quantified in the sum of $75,000.
It is as well to note at this point that the application for costs comes before me rather than Watt J who was the trial Judge. This is because, subsequent to delivering judgment and the wife having made an application to his Honour that the husband pay her costs of and incidental to the property proceedings, Watt J disqualified himself on 23 November 2006. That order appears on the file. There are no reasons by his Honour on the file.
His Honour had, approximately one month earlier on 27 October 2006, dealt with the wife's enforcement proceedings and made orders of a procedural nature. It was not the first time he had dealt with it; he had earlier dealt with it and made an order for costs against the husband. His Honour set up a regime of filing for documents but by paragraph 6 of orders on 27 October 2006 his Honour disqualified “myself from any further hearing of the wife's application for enforcement of the orders made on 28 April 2006”.
There are no reasons on the court file. I am informed by counsel for the wife that his Honour expressed the view in discussion that it was inappropriate to hear either the costs application or the enforcement application given that he had made adverse findings against the husband in relation to his credit. So turning back to those adverse findings, I take them into account in relation to the conduct of the trial.
Whilst the husband opposes to paying any part of the costs of the proceedings, he agrees that the wife's costs can be quantified in the sum of $75,000. So there is no issue about quantum, the issue is about liability.
The wife who is the applicant for costs contends that this application raises matters in subparagraphs (a), (c), (d) and (f). Those sections are:
(a)the financial circumstances of each of the parties to the proceedings;
(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;
(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
It is contended that the husband is better able to afford the cost of proceedings than is the wife. I now have some familiarity concerning the parties' financial position and it is abundantly clear to me that neither party can afford these proceedings. The difference between them is that the husband incurred legal costs for the proceedings which were finalised by Watt J in the sum of $80,000, and has from moneys then available to him met all but $10,000 of that liability. So the substantive proceedings left him with a liability of just $10,000.
The wife, on the other hand, has a liability for costs arising out of the final hearing of some $113,000 of which only $100,000 has been paid, and that has been paid only by what she has managed to recover in the enforcement part of this case. Additionally, she has incurred some $138,000 up until Wednesday of this week chasing the principal due to her under the original orders. It seems to me that the wife is in a significantly worse financial situation than the husband.
As far as income is concerned, the wife has an income of approximately $70,000 per annum from personal exertion. The husband's income position is that he says he is unemployed at the moment and he was previously a manager. When he completed documents to raise finance on 27 April 2007, he declared that his income from his business interests, after expenses and after tax - but including any salary paid to him directly - was $150,000 per annum.

I am satisfied that the financial circumstances of the husband are somewhat better than those of the wife.
The next factor to which I have regard is the conduct of the parties to the proceedings in relation to pleadings, discovery, inspection, answering questions, admission of facts, production of documents and the like. The list is not exhaustive. It is said on behalf of the wife, that three final hearing dates were lost because the husband failed to file material or make certain documents available for inspection, so that opinion evidence could not be obtained. The husband takes issue with this.
I looked through the court records myself and concede that variously orders were made against each party requiring them to give discovery or provide information. It is clear that there were at least two final hearings which could not proceed and I infer that that would have had something to do with the lack of information available, because on each occasion orders were made adjourning the matter and providing for the husband to file documents or provide information or documents by way of discovery.
On each occasion, orders were also made against the wife, but they appear to be less extensive, but not having been the presiding Judge I am unable to infer from the manner in which this aspect of the case was presented who was at fault.
There is the comment appearing in Watt J's reasons for judgment at paragraph 4 in which his Honour observed:
[4] Although the proceedings were commenced by the husband in August 2001, the matter was not in a position to commence a final hearing until 22 March 2005 after a number of interim and case management hearings that appear to have been necessary inter alia to obtain relevant financial information and valuations. At one stage the wife was granted leave to proceed on an undefended basis, but the husband was subsequently granted leave to file documents.
Similarly, I am unable to infer from his Honour's observations who in particular was at fault. I am unable to find that this factor supports the wife's application or the husband's opposition to the order for costs.
Whereas I am not satisfied on the basis of submissions in relation to any specific pre-trial non-disclosure by the husband, having read his Honour's reasons which run to some 50 pages, I am more than satisfied that significant parts of the hearing were devoted to the ascertainment of certain issues. Most of those issues were ultimately determined unfavourably for the husband, but specifically in relation to costs. They were determined together with findings that the husband was not a credible witness; that where there was a conflict of evidence between the wife and the husband, the wife's evidence was accepted.
The trial is described by his Honour at paragraph 5 as:-
[5] … when the case was listed for trial before me, it was set down for three days. This proved to be insufficient for the completion of the hearing and so it was adjourned part-heard to 27 June 2005 and completed after two further days. Mr Grigg of counsel appeared for the applicant husband and Mr Robinson of counsel for the respondent wife.
Apart from having been taken to a transcript of part of the March proceedings from which it is clear that at least an hour, if not more, of that day was spent in getting evidence in chief from the husband which could otherwise have been committed to affidavit, I am not able to say with any precision precisely how time was apportioned for each issue during the hearing, although, reading the reasons for judgment, it appears that the following issues are apparent - and

I quote from the judgment:
[40]. Most differences in valuation were either resolved or not pursued but there were several areas of controversy between the parties in relation to what should be included in the asset pool, both in terms of assets and liabilities, and the husband argued for the separation figure for superannuation to be taken into account.
[…]
[43]. It must also be said that there were movements, during the hearing of the case, in respect of what relief each party was seeking. By the conclusion of the trial, it was common ground that the husband should make a payment to the wife in order to adjust their interests, but the amount that each party said represented the appropriate figure to be paid was very different. Each party furnished an aide memoire setting out the financial effect (ie, the cash amount payable to the wife) of the orders that each sought, by reference to the asset pool identified in their respective aides memoires. I will set out the contents of AMH5 and AMW8 below.
AMH5 – Husband’s payment calculations
At 15% of $420,771           $63,115
Less Wife’s Net Assets       $47,835
Total  $15,280
At 20% of $420,771           $84,154
Less Wife’s Net Assets       $47,835
Total  $36,319
AMW8 – Wife’s payment calculations
Net asset pool  $504,771
($440,271) (If only 50% of the husband’s home is included)
40% of pool to wife            $201,908
($176,108)
Wife holds –
Assets           $91,435
Liabilities      $57,100
Net                $34,335
Husband to pay -                  $167,573
($141,773)
[44]. In summary, it can be seen from the aides memoires to which I have referred that at the close of the case, the applicant husband submitted that he should receive 85% - and the wife should receive 15% - of ‘his’ asset pool, which, after deducting the assets already in the wife’s possession (as calculated by the husband), would involve payment to her of the sum of $15,280. This payment was calculated on the basis that only one half of the equity in the [B] property is included in the asset pool, and does not take into account the husband’s submission that his superannuation should be taken at the ‘separation’ figure of $82,000, which would produce lower amounts to be paid to the wife than those set out above.
[45]. The wife submitted that she should receive 40% - and the husband should receive 60% of ‘her’ asset pool, which, after deducting the assets already in her possession (as calculated by the wife) would involve payment to her of $167,573 (if 100% of the proceeds of the [B] property is included in the asset pool), or $141,573, if only 50% is included.
[…]
[60]. In addition to the issues identified thus far, there were differences between the parties on a range of issues, including the extent of the wife’s contribution to the husband’s development projects, the extent to which the husband participated in household duties, and numerous issues relating to [T Business].
[61]. Initially, the date of commencement of cohabitation was in issue: the husband deposed in paragraph 2 of his affidavit of evidence in chief that cohabitation commenced in approximately February 1994. The wife deposed, in paragraph 4 of her affidavit that she and the husband met in 1992, and commenced cohabitation on 1 January 2003. In oral evidence in chief, the husband amended his position to say that cohabitation commenced in mid 2003, and after cross-examination about the parties’ living arrangements from the beginning of 2003, he conceded that the parties were spending all but perhaps one night per month together at one of their premises from that time, before moving into their first jointly rented accommodation in mid 2003, effectively conceding the wife’s position.
Section 75(2) factors
[62]. The wife sought a 5% upward adjustment of her contribution-based entitlement on the basis of section 75(2), that is to say, her 40% claim was made up of 35% for contributions, and 5% for section 75(2) factors. The husband submitted that the highest contribution based assessment that could be made in favour of the wife was 20% although he submitted that 15% was the appropriate assessment, and that if I assessed her contribution at 20%, a reduction to 15% on account of section 75(2) factors favouring the husband would be appropriate.
Credit
[63]. Credit was in issue having regard to the different accounts of and approaches to [T Business], as well as in significant other areas. The wife challenged the husband’s creditworthiness on a number of grounds, and also asserted that he had not been prepared to be full and frank in his disclosure of relevant matters to the court. This attack was nowhere more apparent than in relation the [B] property acquired after separation in the names of the husband and [Ms Satsi].

A significant issue was also the B property and the valuation of it. The trial commenced before Watt J on the basis of that property being valued at $450,000. That had been the statement of the husband in the preceding October. He was cross examined about whether or not the property was available for sale; he said it was not. He was cross examined about whether it was sold; it was not. In the period in which the matter was adjourned, the property was sold and settlement was effected in the sum of $540,000. In discussion with Mr Robinson and with the submissions of the husband, it is clear that the husband did not return to court in the June and advise the court or the wife of the sale of the property. The wife was set on a course of inquiry by a mutual friend and eventually uncovered the fact the property had been sold.
Of the husband's evidence and failure to subsequently disclose what happened to the property, notwithstanding that his evidence had been concluded, his Honour made the following observations and findings:
[79]. I find that the inference to be drawn from this sequence of events and the husband’s evidence about them is that the husband was prepared to mislead the wife and the court as to his intention to sell, and his belief as to the value of the property. The fact is that by March he had clearly formed the intention to sell and the fact that he had entered into a contract for the sale of the property for $540,000 on 1 March 2005 – even though it had stalled – were matters that should have been the subject of disclosure by the husband at the very outset of the case. Instead he chose to leave in evidence his estimate of $450,000 for the value of the property, increasing this only when the wife produced her market appraisal, and remaining entirely silent as to the contract that he had entered into some weeks before to sell the property for $540,000, a contract that ultimately settled on that amount.
[80]. I consider that this, without more showed the husband to be lacking in credibility and unwilling to make full and frank disclosure to the wife and to the Court. There were more instances to follow, however, particularly in the context of [T Business], and in relation to other matters.
Then there was a further issue in relation to the roles which each party played at a restaurant called [T Business]. In this respect his Honour made the following observations and findings:
[131]. It was also part of the wife’s evidence (including cross-examination) that she spent considerable amounts of time and energy in the wake of the [T Business] sale negotiating reduced payments or payments over time with creditors; see paragraph 84 of her affidavit.
[132]. The [T Business] venture, and the loss that flowed from it, was said by the husband to be something that I should treat as a negative contribution by the wife. Having regard to the evidence of this undertaking, and the clear involvement of the husband in setting it up and attempting to make it succeed, it can not be viewed as anything other than a joint project.
[133]. The husband’s evidence about [T Business] further confirmed my views as to his credit. His denials of involvement were demonstrably false and were clearly directed at shifting the financial losses that flowed from this joint venture from the category of joint losses to that of negative contribution by the wife.
In all I am satisfied that the five days of hearing required before his Honour was largely occupied by evidence and submission in relation to issues on which the husband was unsuccessful. When this was put to the husband, his submissions in response were essentially that his Honour's findings were “semantics more than actuality”. I do not accept that submission. His Honour's reasons for judgment read as if it was a trial which was directed at the ascertainment of facts relevant to the matters in dispute, and those facts were not as the husband's case would have them be.
The next factor which I take into account are offers of settlement. The wife made two offers of settlement during the running of the case, one on 21 March 2005 and one on 22 March 2005. For the avoidance of doubt I state here that the wife does not rely on her offer of 21 March 2005, and where I refer to an offer I am referring to that offer filed on behalf of the wife on 22 March 2005. That offer is set out as an annexure to the affidavit of wife's legal practitioner. It is also exhibit H5.
The offer is four pages long, but essentially what it says is that the wife made an offer to settle the proceedings on the basis that the husband pay her $10,000, pay her credit card debts in the sum of $6000, pay $20,000 to her mother Ms G, and pay "[T Business] Pty Ltd taxation liability of $57,712". Otherwise, each party was to retain what assets personalty and realty were then in their possession. The husband was to otherwise indemnify the wife against all and any payments and liability in respect of certain entities which he retained, which do not include T Business.
The total that the husband would have been required to pay, had he accepted the wife's offer of settlement as at 22 March 2006, would have been $93,712. In the end the wife obtained a judgment in the sum of $111,000.
The husband's case in relation to the offer of settlement was that he "presumed" that the offer was withdrawn either at the end of court on 22 March 2007 or at some stage prior to the resumption of the hearing in June. This is because of the $57,712 said to be a taxation liability, in particular for group tax, payable by T Business Pty Ltd. There was expert evidence filed on 18 April 2005 to the effect that that liability could not and would not be sheeted home to the parties and have in fact been written off by the Australian Taxation Office.
If I appreciate the husband's submissions accurately, his view was that the wife should then have redrawn the offer of settlement to delete from it any reference to the T Business Pty Ltd taxation liability, that each of them, after 18 April 2005, knew no longer existed. I do not accept that submission.
In my view, the offer of settlement remained open. I have provided the husband with an opportunity to address me on any facts or matters emanating from the wife or her representatives such as would have led him to believe that the offer was withdrawn or was not capable of being accepted. He has failed to come up with anything.
Since 22 April, the husband could have accepted an offer which appears to be in more favourable terms than the ultimate determination, and since 18 April 2005 that offer represented an outlay of only $36,000 as far as he was concerned, compared with the ultimate award in favour of the wife of $111,000.
The husband did not accept the offer at any time. The husband did address me on a series of offers which he made, not all of them as to detail, but he confirmed that none of them approximated the $111,000 to which the wife was ultimately found to be entitled. In my view, s 117(2A)(f) strongly supports the wife's application for costs, at least from 22 March 2005 which was the first day of the trial.
There is also the overall effect of the orders. Whereas I have extracted above Watt J's description of the relief sought by the husband and the wife at paragraph 181 of his Honour's reasons, he apportions the assessment of contribution in s 75(2) factors at 65 per cent in favour of the husband and

35 per cent in favour of the wife.
As indicated, the parties have quantified the costs of the proceedings from 2003 until 28 April 2006 at $75,000. I am conscious of the advantage which trial Judges have in assessing responsibility for payment of costs, having heard the actual proceeding. However, I have now read Watt J's reasons a number of times and I have heard submissions from the parties in relation to the factors they consider are relevant.
I conclude that the husband ought be responsible for the costs of the trial which commenced on 22 March 2005 with some modest allowance for a proportion of costs prior to that date from 2003. I was not addressed on what proportion of the $75,000 would be attributable to the five days in court and the taking of judgment.
Doing the best I can and having regard to the sensible concession of the parties that the costs in total would be $75,000, and looking at the issues that were ultimately required to be determined - and determined adverse to the husband's case - I am satisfied that there are circumstances which justify the husband paying 60 per cent of the $75,000; that is $45,000 towards the wife's costs of the proceedings.

Costs of the enforcement proceedings at $67,800

Turning to the issues in relation to enforcement, the costs in that respect were originally claimed in the sum of $138,000 but then, like the costs of the proceedings, reduced to $75,000. In that, however, there need to be three deductions: one is in respect of a contempt application which I am satisfied was wholly misconceived, and the cost of that has been quantified by counsel for the wife at something less than $600. I will take $600 as an appropriate amount. Because separate application is made for the costs referable to the

s 106B application, I am satisfied I ought to deduct the sum of $1500 from the $75,000. Finally, the third deduction is in the sum of $5100, and that represents the cost of the costs application which is also separately claimed. That means that the costs of the various enforcement applications and procedures is quantified at $67,800, and what is in question is the liability for such costs.
Costs quantified in that sum must necessarily, and do, include those ordered in paragraph 8 of orders made 23 August 2006 which required the husband to pay the wife costs in the sum of $1320. Otherwise, I note that on 31 May 2007

I reserved the issue of liability for payment of costs but fixed the wife's costs in the sum of $400. That is not an award of costs in itself, but the quantification at $67,800 absorbs that as well.
In relation to the enforcement issues, the applicant relies on subs (d) and (e) of s 117(2A), in short, that the enforcement proceedings were necessary because of the husband's failure to comply with an order of the court and the fact that he has been wholly unsuccessful to date. There is much force in those submissions. The husband did not make any contrary submissions. He says, at the most, that the wife could have recovered on her judgment in another way, but there is no substance to what he says and I really cannot have regard to more as an expression of a desire by him that she had done so.
I am satisfied that it is appropriate that the husband bear all of the costs of the enforcement in the sum of $67,800.

Costs of the s106B proceedings of $5,277

The next issue relates to the costs for the s 106B proceedings in the sum of $5277.20.
Again, the relevant factors are those found in s 117(2A)(d) and (e). It was submitted that the s 106B proceedings were necessary because the husband had failed to comply with an injunction. It is fairly clear that he contravened an injunction. He contravened an order that enjoined him from dealing with the property, and that s 106B was the appropriate mechanism whereby his ownership of that property could be, and was, eventually restored.
The husband did not make any submissions in opposition to the costs order in relation to the s 106B proceedings, and I am satisfied that in the circumstances of this case it is justified that he bear the wife's costs of $5277.20 in their entirety.

Costs of the application for costs of $8,450

The final aspect of the costs application was the costs of the costs application itself. They are sought in sum of $8450.05.
All of the matters which I referred to in relation to s 106B pertain also to costs; that is, that the husband did not make any submissions in support of his opposition to that order.
I should mention that in discussion it will be apparent from the transcript that Mr Robinson has satisfied me that there had been no double-counting of either affidavit material or counsel's fees or the professional costs of having an instructing solicitor attend. I am satisfied that these circumstances justify an order that husband pay all of the wife's costs in making the costs application fixed in the sum $8450.05.

Summary

In summary therefore, the husband's liability for costs pursuant to this order will stand at:-
a)$45,000 on account of the costs of the proceedings which were finalised before his Honour Watt J on 28 April 2006;
b)$67,800 on account of the wife's costs for various enforcement applications up to and including today;
c)$5277.20 on account of the wife's costs to prosecute the s 106B application,
d)the costs of $8450.05 on account of the costs of making the application itself.
That totals $126,527.25 by way of costs.
I will turn to the husband in relation to any stay he seeks bearing in mind that he is a self-represented litigant.
When asked, the husband has indicated he seeks a stay of one month and that “30 days would be fine”. I agree and will make the order in those terms.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date: 9 November 2007

[2007] FamCA 1504

9 November 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Constructive Trust

Appeal

Res Judicata