Salvage & Fosse
[2020] FamCAFC 144
•12 June 2020
FAMILY COURT OF AUSTRALIA
| SALVAGE & FOSSE | [2020] FamCAFC 144 |
| FAMILY LAW – APPEAL – LITIGATION FUNDING – Application to set aside financial agreement and apply for a property settlement order – Litigation funding order made in relation to application to set aside financial agreement – Application of costs power for litigation funding orders – Where the primary judge found that the respondent had “at least an arguable case” – Whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs – Failure to evaluate the likely result of any property division and consider costs to the parties – Irreversibility – Leave to appeal granted – Appeal allowed in part. FAMILY LAW – APPEAL – INTERIM DE FACTO SPOUSAL MAINTENANCE – Where the financial agreement came into effect after the breakdown of the relationship between the parties – Section 90UI of the Family Law Act 1975 (Cth) restricts the ability to exclude or limit the power of the Court to make a maintenance order pursuant to s 90SE and s 90SG – Meaning of “came into effect” discussed – Leave to appeal refused – Costs order made. |
| Australian Constitution s 51(xxxvii) Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) s 3 and s 4 Matrimonial Causes Act 1899 (NSW) s 47 Matrimonial Causes Act 1959 (Cth) s 125 Property Law Act 1974 (Qld) s 264 and s 266 Family Law Rules 2004 (Cth) Sch 3 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Farnell and Farnell (1996) FLC 92-681; [1995] FamCA 140 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Harris and Harris (1993) FLC 92-378; [1993] FamCA 49 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 Parker v Parker (1992) 16 Fam LR 458 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Robertson v Robertson (1881) 6 P.D. 119 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sykes and Sykes, Dotch and Ors (1979) FLC 90-652; [1978] FamCA 61 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 |
| APPELLANT: | Mr Salvage |
| RESPONDENT: | Ms Fosse |
| FILE NUMBER: | CSC | 563 | of | 2018 |
| APPEAL NUMBER: | NOA | 63 | of | 2019 |
| DATE DELIVERED: | 12 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Aldridge & Watts JJ |
| HEARING DATE: | 3 February 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 June 2019 |
| LOWER COURT MNC: | [2019] FamCA 385 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPELLANT: | Hopgood Ganim Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Looney QC with Ms Fraser |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
Orders
The appellant is granted leave to appeal Order 1 made on 14 June 2019.
The appeal against Order 1 made on 14 June 2019 is allowed.
Order 1 made on 14 June 2019 is set aside.
The matter is remitted for rehearing of the respondent’s application for a litigation funding order.
The appeal is otherwise dismissed.
The appellant pay the respondent’s costs in the sum of $30,000.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salvage & Fosse has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 63 of 2019
File Number: CSC 563 of 2018
| Mr Salvage |
Appellant
And
| Ms Fosse |
Respondent
REASONS FOR JUDGMENT
Ryan & Aldridge JJ
We have had the benefit of reading the reasons of Watts J, which records the relevant facts and discusses the relevant principles. Subject to the matters which will be discussed, we agree that there is no merit in the other challenges raised against the orders.
Litigation Funding Order
The central matters for consideration are the nature of the power to make interim costs orders, or as senior counsel for the respondent put it, litigation funding orders, and what considerations must be undertaken when making them. The appeal specifically raised questions about the use of the power to make orders as to costs in the nature of litigation funding orders and it is to those questions that these reasons respond.
It might be thought that it is a big step for a court to order a respondent to proceedings to pay the applicant, his or her costs of prosecuting those proceedings, in advance. Such a concept is, however, far from novel in matrimonial cases because, not infrequently, all of the assets to be divided between the parties are held by one party. The unfairness of that party to be able to marshal those assets to pay lawyers to act for them, leaving the other party to attempt to respond to that legal representation without resorting to property that might subsequently be transferred to them is obvious.
Originally, the jurisprudence was based on the principle that a wife was incapable of holding a separate estate from her husband (see Robertson v Robertson (1881) 6 P.D. 119 and as explained in Wilson v Wilson (1966) 9 FLR 1 at 6). The only person capable of paying for legal representation in proceedings therefore was the husband, but nonetheless justice could only be done by him paying his wife’s legal costs as well as his own. Later, the principle rested less on the legal ownership of the assets with “the real point being that it is impossible to do justice if a woman who is attacked cannot put the Court in possession of all of the facts, and fight her case and deal with it properly, unless she has funds to do it. And this is equally true in a case where the wife wishes to have relief on the ground of her husband’s misconduct” (Sheppard v Sheppard [1905] P. 185 at 191). Thus, interim costs could be paid even if the pre-condition to a property settlement, namely a divorce, was in issue. The risk of injustice to the husband was avoided through management of the amount released and expended (Richardson v Richardson (1963) 4 FLR 360 at 362).
Subsequently, s 47(1) of the Matrimonial Causes Act 1899 (NSW), which provided that “[t]he Court may make any order as to the costs of any proceedings under this Act which it deems just”, became an obvious source of power for orders providing for respondents to pay applicants’ costs of proceedings in advance.
In a form that resonates with s 117 of the Family Law Act 1975 (Cth) (“the Act”), s 125 of the Matrimonial Causes Act 1959 (Cth) provided:
In proceedings under this Act, the court may, subject to the rules, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.
The introduction of s 79 of the Act, followed by s 90SM and, the acceptance of the making of appropriate orders dealing with only part of the property in advance of the final hearing, saw these sections relied upon to support orders for the transfer of funds for the purpose of paying legal fees to be incurred in those proceedings. Where there are assets which will be divided between the parties but which are held by only one party, this is an obvious and principled approach because, it permits each party to deal with the property that he or she will receive as a result of the division of property as they see fit, including for the payment of legal fees. It recognises the inherent unfairness of a party being able to marshal all of the assets to prosecute their claim and leaving the other party to fend for themselves without that benefit.
This is not a case where there are assets available for division, and s 79 or its equivalent s 90SM of the Act which might ultimately apply here, have no operation because of the Cohabitation Agreement. Rather, the application is to set that agreement aside. Nonetheless, it is accepted by the appellant, as it must be, that s 117 of the Act empowers the Court to make such orders as to costs and is of sufficient width to empower the making of the order sought by the respondent in the proceedings.
Such a concession merely accepts a now long-held and unimpeachable jurisprudence.
The effect of the Cohabitation Agreement is that there is no property capable of being divided between the parties pursuant to s 90SM of the Act. If, as the respondent asserts, her assent to that agreement was improperly and unconscionably obtained, then the jurisdiction as to interim costs is enlivened because it is that agreement which operates as a bar to otherwise unremarkable property settlement proceedings. The mere making of such assertions is, of course, not of itself sufficient to justify such an order.
The considerations that apply to applications under s 79 and s 90SM and, s 117 of the Act, are quite different and some care must be taken in identifying the relevant principles that apply to each (Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [84]).
Importantly, in property settlement proceedings it may be sufficient for an applicant to establish that he or she would be likely to receive a property settlement that would be “sufficient to cover the advance” (Zschokke and Zschokke (1996) FLC 92-693 (“Zschokke”) at 83,216). There, the Full Court of the Family Court of Australia went on to adopt the following passage from Harris and Harris (1993) FLC 92-378 at 79,930:
…[T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently necessary to do so…
The power to make orders in the exercise of the property power may be exercised by a series of orders, with the crucial issue being whether or not the power to make orders for the settlement of property has been exhausted or spent. Unless it has, further orders may be made with respect to property the subject of earlier orders (Gabel & Yardley (2008) FLC 93-386 at [69] and [126]). In other words, that earlier order may be taken into account or, indeed reversed, prior to or as part of the final exercise of the s 79 (or s 90SM) power without resort to s 79A of the Act and its equivalents or, an appeal. However, the notion of orders being “reversed or adjusted” does not easily apply to costs orders made in the exercise of the costs power, especially if the applicant fails. The very nature of a litigation funding order is that the funds will be spent on the costs of the proceedings, which may or may not be successful. There is a real risk that the funds can never be recovered or otherwise taken into account.
The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant’s case and the effect of the order upon the respondent.
It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant’s case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at 83,217, where the Full Court said:
… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a “basic” condition in the making of an order of the type in question under s 117(2).
(See also Strahan at [124]).
In this matter, the respondent faced the task of persuading not only the primary judge that she had a claim to set aside the Cohabitation Agreement of sufficient merit to justify an interim costs order but also that her subsequent property application was of sufficient merit and value to justify that course. There would be no point in providing funding to pursue a case to set aside the Cohabitation Agreement, unless the Court was satisfied that the respondent would be likely to receive a property settlement of such value as to justify that course.
The position is somewhat analogous to an application for leave to commence property proceedings out of time pursuant to s 44(3) (or s 44(6)) of the Act. In such proceedings, the Court looks at, amongst other things, the likely costs of the proceedings and the probable range of results. If the costs of the proceedings do not justify the likely return and would not have the effect of alleviating the applicant’s hardship, then leave will not be granted (Gadzen & Simkin (2018) FLC 93-871 at [35]–[37]).
This is a significant concern in this case, given the following:
·The property available for division between the parties is of the order of approximately $1,367,782.90, all of which, save for $6,800, was brought into the relationship by the appellant;
·A very significant part of those assets consisted of cash ($341,573) and shares ($439,409.90), which the appellant depended on to produce income; and
·The parties lived together for 14 years and had no children.
Of course, the orders sought by the respondent, if granted, had the immediate effect of reducing the property available for division by the amount of the interim costs order. A further reduction would occur if, as was indeed the case, the appellant engaged lawyers to defend the proceedings.
Although the property owned by the parties was known and there was no real dispute about its value, the respondent did not identify the property settlement orders that she would seek if the Cohabitation Agreement was set aside and her solicitor merely opined, quite unhelpfully, that the respondent’s “entitlement would exceed the funds she seeks on an interim basis” (affidavit of Mr Greer filed on 5 November 2018, paragraph 11). It should be observed that in Chester v Chester (1995) FLC 92-612 (“Chester”) at [30], one of the reasons why the wife’s claim for a litigation funding order failed was that no proper attempt had been made to assess the monetary ambit of her claim.
However, the Court is an expert tribunal and provided there is sufficient evidence before the Court, it can form a view as to the likely outcome of the property settlement proceedings. It would be astute to look past any optimistic ambit claim sought in the application or made by the respondent’s lawyers. The primary judge proceeded on the basis that his Honour needed to determine whether the respondent’s claims were “arguable”. It was not suggested to his Honour that a different approach should be taken. Reference to “arguable” seems to be a reference to Chester as cited by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 (“Paris King”) at [30]. In Strahan at [141], the plurality adopted Brereton J’s reference to the necessity for the substantive case to be “arguable”, but without addressing that in Chester, Moss J in fact asked whether the wife demonstrated “a good case on its merits” (Chester at [27]).
In any event, the primary judge said:
20.[The respondent] says that in the substantive proceedings she has an arguable case, and at paragraphs 24 to 27 of her written outline, explained it as follows:
24.This is matter in which the following factors are relevant, and deposed to by the [respondent]:
(a)The Agreement was offered on the basis of it being nonnegotiable, with the [respondent] feeling she had no choice but to sign, and no ability to negotiate;
(b)The [respondent] felt pressured over a period of time, and made to feel she had to sign the Agreement to stop the [appellant] from pressuring her, and berating her to sign the Agreement;
(c)The meeting with the [respondent’s] solicitor was for approximately 30-45 minutes, with no ability to reflect upon the meeting, or any advice given to the [respondent], prior or during the short meeting with the solicitor;
(d)The [appellant’s] financial position was far superior to that of the [respondent]; and
(e)The [respondent’s] English comprehension was limited to basic English;
(f)The [respondent] had limited understanding of the meaning and effect of the agreement as a consequence of her limited English comprehension.
25.Taking the [respondent’s] evidence at its highest in this regard, a case in relation to unconscionable conduct or undue influence can be made out, and there is clearly an arguable case as to these matters. As such, the Court should consider the provision of litigation funding to allow the [respondent] to continue to pursue her application to have the Agreement set aside in the interests of justice.
26.If the Agreement were to be set aside, the [respondent’s] evidence if accepted as to the relationship is as follows:
(a)Although the [appellant’s] financial contributions exceeded that of the [respondent], the parties were in a de facto relationship for over 16 years;
(d)During the relationship, the [respondent] made significant contributions to the home, including home maker duties;
(c)The [respondent] cared for the [appellant] whilst he was unwell;
(d)The [respondent] was financially supported by the [appellant] who was responsible for the mortgage, and other living expenses, whilst the [respondent] also contributed to some extent to living expenses;
(e)The [appellant] further financially supported the [respondent] by providing her additional income each month to assist with covering living expenses;
(f)The [respondent] currently only receives a pension, and has no other assets of value, and as such has a greater future needs, in that regard, compared to the [appellant];
(g)Post separation the [appellant] has provided financial support to the [respondent]. The [respondent] received $6,057.00 from the [appellant] following her request for support on 22 May 2017. The funds were requested on account of expenses including urgent repairs to her car and the purchase of new dentures.
27.In such circumstances, if the Court were to set aside the Agreement, it is contended that the [respondent] would receive an adjustment in her favour of the current property interests.
21.The [appellant’s] material contradicts many of the [respondent’s] assertions, however, I cannot determine whose evidence is preferable in any application such as this. However I accept the [respondent] has an arguable case, both in relation to impugning the [Cohabitation Agreement], and if successful, for a property division in due course.
(As per the original)
This lead to the ultimate conclusion which was:
43.Ultimately I identify the points in favour for an order for litigation funding as sought by the [respondent] to be as follows:
· The [respondent] has an arguable case for substantive relief;
· There is a marked disparity in the assets and financial resources of the parties;
· Absent a litigation funding order, the [respondent] will not be able to pay for legal representation (albeit that does not necessarily mean she will be without legal representation).
44.On the other hand I identify the following points as telling against the [respondent’s] application:
· There is realistically no prospect of her ever being able to refund any sums to the [appellant] in relation to litigation funding, unless she, firstly, succeeds in having the [Cohabitation Agreement] set aside, and secondly, succeeds in proceedings for property division;
· There is an element of “Rolls Royce” in the level of funding which she seeks, including both for senior and junior counsel;
· It is not impossible, and indeed reasonably foreseeable, that pro bono counsel, and perhaps sympathetic solicitors, could represent her at the hearing.
45.Weighing all those factors in the balance to my mind tells in favour of there being an order for litigation funding in favour of the [respondent] in this case. I am satisfied that such an order is, in the circumstances of this case, just. Particularly, the disparity of the parties’ financial positions deserves real weight. I should say that I have some difficulty in giving much weight to the “irreversibility” point (although I accept it is valid). This is an application explicitly under s 117; by what means a costs order might be reversed so as to effect repayment to the [appellant], is unclear. I can understand questions of reversibility if the claim for funding is advanced as an interim property order, but the issue would otherwise inevitably arise in every case involving an impecunious applicant under s 117.
It was not suggested to his Honour that an evaluation should be undertaken of: the quality and nature of the claim to set aside the Cohabitation Agreement; the likely result that would ensue if a subsequent property division was undertaken; and the likely costs of such a course. No authority directly suggests such a course. We consider, however, that such a consideration is essential in a case such as the present.
How else can it be determined that an interim costs order is justified in all of the circumstances? In other words, what is missing is an assessment of the nature and quality of any property claim – what is the likely division that would follow, and are such proceedings justified by the nature and quality of the claim to set aside the Cohabitation Agreement and the likely costs involved?
It must be realised that the property available for division at any hearing is likely to be very different to that presently held. In this case, not only will it be diminished by the interim costs orders but also by the costs of the appellant defending the initial proceedings and by the parties’ costs of the property settlement proceedings.
In this matter, the effect on the appellant of the respondent’s proposed orders is significant as he lives on the income generated by the shares and cash held by him as well as the capital. There would be no point in interim costs orders if the ultimate likely orders in the property settlement proceedings did not justify the level of expenditure.
The difficulty that must be faced is that the appellant did not ask the primary judge to approach the matter in this way and did not submit that the above consideration should have been undertaken. We have, however, ultimately come to the view that this issue was so fundamental, having regard to the particular facts of this case which we have identified above, that it required consideration.
It follows that the Court did not undertake a necessary consideration. Whilst the grounds of appeal are not well drawn, Grounds 3 and 4 do raise this.
We also wish to address the submissions on what was said to be the “irreversibility” of the costs order which occupied much of the Court’s time.
First, as we have tried to explain, that concept is more apt to an order for the transfer of an asset or payment of money during the course of the property settlement proceedings, although in our opinion, it is an unfortunate and not entirely accurate shorthand expression of the applicable principle. Rather, the Court must take into account whether, and if so how, such an order could be taken into account, adjusted or possibly reversed at the final hearing.
It is as plain as a pikestaff that if the respondent failed to set aside the Cohabitation Agreement, the funds obtained by her could never be repaid. Thus, the order was incapable of being reversed, although if she succeeded, it was capable of being taken into account at a subsequent property settlement hearing. Another possibility is that the order might simply stand as appropriate if the Cohabitation Agreement was set aside.
As Kent J has persuasively reasoned, the fact that an interim costs order may never be repaid is not a bar to one being made. As the history of such orders demonstrates, it is not a determinative matter (Rakete v Rakete (2012) 48 Fam LR 325 at [55]).
It is, however, a consideration which justifies the particular evaluation we have described earlier.
We were referred to Norton & Wilkins [2017] FamCA 992 and Wall & Mitchell [2010] FamCA 1194, which it was said established a principle that interim costs orders are not normally made in cases such as these. We do not consider that they do. Those cases are applications of the requirement to do justice between the parties, which turned on the findings that the nature of the claims to be made in those proceedings did not justify requiring the respondent to pay the applicant’s costs in advance.
Secondly, his Honour did have regard to this consideration at [45] which is set out above.
We consider that in this paragraph the primary judge was doing no more than stating that the so-called “irreversibility” principle has little application to interim cost orders. For the reasons that we have given, we agree. If however, the primary judge was intending greatly to discount his earlier finding at [44], that there was no prospect of the respondent being able to refund any costs unless she was successful in both proceedings, then we would respectfully disagree.
The appellant has established both elements for leave to appeal, and for the same reasons, the appeal against the interim costs order should be allowed.
Spousal Maintenance
We agree with Watts J, that notwithstanding that the appellant abandoned his challenge to the approach to s 90UI of the Act, we need to be satisfied that s 90UI does not operate to bar the respondent’s claim to spousal maintenance. The question which arises from s 90UI is when does an agreement come into effect? We understand that it is uncontroversial that if the respondent’s circumstances were to be examined at the date that the agreement was signed, as the respondent was then in paid employment, the clause in the agreement barring a claim for spousal maintenance would be unaffected. A different answer may be given if the respondent’s circumstances were examined at the time of the breakdown of the relationship. Notwithstanding the potential significance of this issue to the appellant’s case, our requests for submissions on the topic on his behalf went unanswered. In these circumstances, we readily understand senior counsel for the respondent’s lack of enthusiasm to address the point, but we are grateful that he did. For the reasons which follow, we agree that s 90UI of the Act did not bar the respondent’s claim for spousal maintenance.
As Watts J and the primary judge have explained, the parties entered into a Cohabitation Agreement pursuant to s 264 and s 266 of the Property Law Act1974 (Qld), which then pertained. No doubt the Cohabitation Agreement was drafted with the provisions of that Act in mind. The Cohabitation Agreement predated the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth), yet it is to the changes made by that Act to the Family Law Act 1975 (Cth) that one turns, so as to understand the effect of the Cohabitation Agreement, and relevantly, when and how it comes into effect. Ordinarily, deeds and clauses take effect when signed and, as the primary judge said, this agreement purported to operate from three months after the parties ceased to cohabit. However, these agreements are creatures of statute and it is to the Act that attention must be given in order to understand whether the position at law pertains. Part VIIIAB agreements, such as this, are dealt with in Div 4 of that Part which contains various provisions concerning when and how a Part VIIIAB financial agreement and specific clauses comes into effect.
By reference to the Act, it is apparent that irrespective of whether a financial agreement is entered into in contemplation of, during, or after the breakdown of a de facto relationship, insofar as the financial agreement deals with property, financial resources, spousal maintenance and matters ancillary thereto, to attract the provisions of the Act, those clauses must operate, that is take effect, in the event of the breakdown of the de facto relationship (ss 90UB(1)(a), 90UC(1)(a) and 90UD(1)(a)). This is because an application for de facto spousal maintenance (s 90SF and s 90SG) may only be brought after the breakdown of the de facto relationship. Similar limitations on power apply in relation to de facto property settlement (s 90SM(1)) and relief ancillary to both. Unless another provision of the Act provides to the contrary, this means that the provisions of a financial agreement to which the Act applies, come into effect on the breakdown of the de facto relationship.
A number of provisions do provide to the contrary. By s 90UF of the Act, those clauses of a financial agreement which deal with the property or financial resources of the spouse parties, have no force or effect until the breakdown of the relationship and a separation declaration is made (s 90UF(1)). Any ancillary clauses as defined by ss 90UB(3), 90UC(3) or 90UD(3) are of no force and effect until the de facto relationship breaks down but there is no need for a separation declaration (s 90UG). A note to s 90UF explains that this means that before the separation declaration is made, the financial agreement will be of force and effect in relation to matters other than property or financial resources, or matters ancillary thereto (including ancillary to the maintenance of either member of the couple). If matters ancillary to a maintenance provision have no force or effect until the breakdown of the relationship, it is logical that maintenance clauses operate in the same manner.
There are no similar provisions in relation to maintenance clauses per se, albeit in the circumstances set out in s 90UH of the Act (which does not in any event apply to this agreement), certain clauses as to maintenance may be void. Section 90UI restricts the ability of spouse parties to exclude or limit the power of the Court to make a maintenance order pursuant to s 90SE and s 90SG in favour of a party in the circumstances addressed by s 90UI(2). Section 90UI(2) examines the circumstances of the applicant spouse at the time “when the agreement came into effect” and if at that time the applicant party is unable to support themselves in the manner described in that subsection, the exclusion or limitation clause is rendered inoperative. This subsection requires that the applicant party’s circumstances are to be examined “taking into account the terms and effect of the agreement”. Reference to s 90UI(3) makes it clear that where the financial agreement provides that the property or financial resources of a de facto spouse are to continue in the ownership of that party, that property or financial resource is to be taken into account in determining the circumstances of the party. If the applicant’s circumstances were to be considered when the agreement was signed rather than on the breakdown of the relationship, this provision is otiose. The work it does is to ensure that the applicant’s circumstances include property and financial resources which the applicant already has (and will retain) are taken into account as well as any property or financial resource that the applicant is to receive at the breakdown of the relationship. This lends strong support for the proposition that s 90UI is to be considered at the breakdown of the de facto relationship. Any disquiet is dispelled by asking how could the fact that when a party signs an agreement, which means that at some distant time the party will receive property, mean that at that earlier point in time, the party is unable to support himself or herself without an income tested pension etc.? Plainly it could not.
We are bolstered in this view because, interpreted in this fashion, it means that in this respect, financial agreements entered into between married spouses and those entered into between de facto spouses operate harmoniously (see s 90F of the Act and the discussion at [55]–[62] of the trial reasons).
We otherwise agree with Watts J in relation to the challenges raised against the spousal maintenance order and thus, we would dismiss the application for leave to appeal against it.
Conclusion and Costs
It follows that the interim costs order must be set aside, even though on the re‑exercise of the discretion it is possible that a not dissimilar order might be made (albeit if the application is pursued pursuant to s 117 of the Act, further attention should be given to reimbursement for past legal expenses compared to those required to enable the respondent to continue to fund her case (see Chester at [26] and the cases cited; Paris King at [31]). This is because if a discretion has been exercised without regard being given to the appropriate principles, it must be reconsidered, even if the original result could be regarded as correct (Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533 at [22], [25] and [137]). It was common ground that in this event, the application should be remitted for rehearing. We are not sure why and express our anxious concern about escalating legal expenses. However, that being the agreed course, orders will be made accordingly.
We agree with Watts J as to costs.
Watts J
Introduction
By an Amended Notice of Appeal filed on 25 October 2019, Mr Salvage, the de facto husband (“the appellant”), seeks leave to appeal and, if granted, to appeal from interlocutory orders made by the primary judge on 14 June 2019 (“the orders”) requiring the appellant to pay to Ms Fosse, the de facto wife (“the respondent”), $100,000 to be used only to meet the respondent’s legal costs of these proceedings (“the litigation funding order”) and interim spousal maintenance of $516.05 each week (“the maintenance order”). The respondent opposes leave being granted but if it is, seeks that the appeal be dismissed.
Background
By way of background, the parties first lived in a de facto relationship for about four years, separated for about two years and then resumed living together in that relationship for a second time for about another 10 years, until they again separated in September 2016.
During the second period of the relationship, in March 2008, the parties made a Cohabitation Agreement (“the Cohabitation Agreement”) pursuant to s 264 and s 266 Property Law Act 1974 (Qld) which, if not set aside, excluded the making of orders under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
The appellant is currently 73 years of age and the respondent is 72 years of age. The net assets held by the appellant are about $1,350,000 and about $775,000 of that amount is in cash or shares. He lives on the income from that capital and from drawing upon that capital. The respondent has no assets and relies upon an income tested pension.
On 13 July 2018, the respondent commenced proceedings and by her Amended Initiating Application filed on 5 November 2018 seeks a final order to set aside the Cohabitation Agreement (including now on the basis of undue influence and unconscionability) and, if set aside, an order to file a further final application for a property settlement order and a spousal maintenance order. The respondent sought interim orders as to costs in the amount of $135,000 for litigation expenses and an interim spousal maintenance order of $516.05 each week.
The appeal from the litigation funding order complains that the primary judge made errors that relate to: jurisdiction and power; adequacy of reasons; acting on a wrong principle; mistaken facts; failure to consider relevant matters; and whether or not the exercise of discretion miscarried. The appeal against the interim maintenance order complains: that there was no jurisdiction to make it; that the appellant had contractual and equitable defences arising from the Cohabitation Agreement; that the respondent was not unable to support herself adequately; that the appellant did not have a capacity to pay; and that the primary judge failed to provide adequate reasons.
For reasons which follow, the appellant’s application for leave to appeal both the litigation funding order and the spousal maintenance order should be dismissed.
The terms of the Cohabitation Agreement
At [13] of primary judge’s reasons for judgment (“the reasons”), his Honour sets out some of the essential clauses of the Cohabitation Agreement, the most important of which are the provisions under the heading “Separation” which are in the following terms:
5.Separation
5.1Neither will be required to pay maintenance to the other.
…
5.4That save as otherwise herein provided assets and resources accumulated in the name of one, other or both of the parties during the course of the relationship (“the Joint Property”) shall be deemed to be owned by the parties in the proportions described in any document evidencing title and if none then in accordance with their respective contributions thereto.
5.5If either party acquires assets and/or financial resources after the date of this agreement in their own name then that party will be entitled to the benefit of that property or financial resource.
…
Applicable Law and Principles
When making an order for litigation expenses, it is important to identify the source of power because that will determine the relevant considerations for making the order (see Zschokke and Zschokke (1996) FLC 92-693 (“Zschokke”); Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 (“Paris King Investments”) and Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [221]).
The four possible powers referred to by relevant authorities for the making of an order for interim provision of litigation expenses are the powers to make orders as to: property (s 90SM and s 90SS(1)(h) and (k)), costs (s 117(2)), maintenance (s 90SE) and injunctions (s 114(2A)(c)).
In a financial case involving de facto spouses, an order for litigation expenses will most usually be made relying upon the property power. If unavailable, for example because of the need to determine jurisdictional facts, the next most obvious source of power is s 117(2) of the Act (see Breen v Breen (1990) 65 ALJR 195) (“Breen”); Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at [2], [10], [60]–[62]; Zschokke and Strahan).
Section 117(2) is available “in proceedings under this Act”. In this case, the respondent has commenced proceedings under s 90UM of the Act to set aside the Cohabitation Agreement. This section provides jurisdiction to, in effect, decide whether s 90SA(1) excludes the respondent from making an application under s 90SM. The availability of this Court to determine jurisdiction attracts the provisions of s 117(2).
Section 117(1) expresses the general rule that a party to proceedings under the Act shall bear his or her own costs. However, the High Court in Penfold v Penfold (1980) 144 CLR 311 (“Penfold”), said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs…
The requirement of justice must remain a basic condition in the making of an order of the type in question under s 117(2) (see Strahan at [124] quoting Zschokke). That should be understood to mean justice when balancing competing considerations in favour of or against each of the parties.
When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:
If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)…
In relation to s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:
a)a position of relative financial strength on the part of the respondent;
b)a capacity on the part of the respondent to meet his or her own litigation costs; and
c)an ability on the part of the applicant to meet his or her litigation costs.
As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:
a)the applicant should have “at least an arguable case for substantive relief which deserves to be heard”;
b)there should be evidence of the applicant’s “likely costs of litigation” (see also Wilson and Wilson (1989) FLC 92-033 at 77,453); and
c)it is not “an essential pre-condition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
In respect of the first of the considerations referred to in the preceding paragraph, that the applicant should have at least an arguable case for substantive relief which deserves to be heard, the trial before the primary judge and the submissions before this Court proceeded on the basis that the statement made by the Full Court in Strahan at [141] was correct. The primary judge was asked to make an assessment as to whether or not the respondent had at least an arguable case for substantive relief which deserved to be heard. The test adopted in Strahan was formulated by Brereton J in Paris King Investments at [30]. It was an objective test. Brereton J had apparently drawn upon an earlier statement made by Moss J in Chester v Chester (1995) FLC 92-612 (“Chester”), which was in different terms. Moss J said, “[i]t is desirable that the [a]pplicant should provide evidence of having been advised by the [a]pplicant’s solicitor that the [a]pplicant has a good case on the merits” (at [27]). This was a subjective test and in this case, as discussed below, the respondent’s solicitor made such a submission. The test proposed by Brereton J and adopted by the plurality in Strahan went beyond the mere advice of the lawyer for the applicant for the litigation funding order. The test is “at least an arguable case”. The hearing of an application for a litigation funding order is not an occasion to run a rehearsal of the substantive application on tested evidence. As Kirby J said, in the context of a summary dismissal application, in Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 256, “[e]xperience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment”. Departure from an earlier decision of the Full Court should be done “cautiously and only when compelled to the conclusion that the earlier decision is wrong” (Nguyen v Nguyen (1990) 169 CLR 245 at 268-270). It was not argued before us that the Full Court in Strahan was wrong. Absent argument, I am not compelled or prepared to say that the Full Court had set an inappropriate test.
The plurality in Strahan at [96] also made reference to further considerations articulated in Paris King Investments at [31]. The first was that an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”. In Kendling v Kendling (2008) 39 Fam LR 404 at [48], the Full Court, referring to a statement by Nygh J at first instance in Poletti & Poletti (1990) 15 Fam LR 794 (“Poletti”), said that it was not necessary to require an “itemised bills of cost” or that the costs “be at scale” or that a taxation assessment under the Family Law Rules 2004 (Cth) is required. The second was that “an order can be made in respect of costs already incurred as well as of future costs”. In Chester, Moss J at [26] notes that general principles expressed in earlier cases under the Matrimonial Causes Act 1959 (Cth), included recognition that the object of an interim costs order “is to provide the [a]pplicant with a means to continue the conduct of the litigation not to reimburse the [a]pplicant for moneys already expended on or towards her costs”. In Paris King Investments, Brereton J at [31] expressed the view that an order can be made in relation to costs already incurred but the exercise of distinction between costs already incurred and those to be incurred may be relevant to the discretion to make an order, and its quantum.
Cases involving a dispute on the facts as to jurisdiction, may raise the question as to whether or not an order for litigation expenses is recoverable if the party against whom the order is made is ultimately successful in opposing the application for substantive relief. In the context of an interim property case, the Court in Strahan at [99] endorsed the statement in Harris and Harris (1993) FLC 92-378 (“Harris”) at 79,930:
… [T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so.
However, in relation to an order for litigation expenses, the Full Court in Zschokke at 83,221 said:
However, while the conclusion in relation to the uncertainty of the amount of the [applicant’s] eventual property settlement award may be fatal to an application under s 80(1)(h), it is not necessarily so to an application under s 117(2). It is just one of the matters to be balanced in the exercise of the discretion under the latter sub-section.
As Kent J said in Rakete v Rakete (2012) 48 Fam LR 325 (“Rakete”) at [55]:
… [T]he capacity to repay, whilst a relevant consideration, cannot be elevated to the status of an essential pre‑condition to the making of an Order in cases involving s 90K [or s 90UM]…
The High Court in Breen said at 195–195 that an order for the interim provision of litigation expenses “should be so framed as to protect the parties from any risk of injustice arising from the manner in which the funds are expended”. There is no question that his Honour fulfilled that requirement in this case by attaching to the litigation funding order, the provision “which monies are only to be used to meet the [respondent’s] legal costs in these proceedings”. If a party pays to the other party monies for litigation funding, that party at least should obtain the advantage of moving the litigation towards finality.
The Full Courts in both Harris and Strahan make comments to the effect that there should be as few interim applications for orders for litigation expenses as possible.
Grounds of appeal from the litigation funding order
The grounds of appeal from the litigation funding order are set out in nine paragraphs. The first is not a ground of appeal but a statement of the effect of the litigation funding order. Ground 6 was abandoned.
The remaining grounds of appeal are disorganised and overlapping but when untangled and considered with the contents of the appellant’s Summary of Argument filed on 10 December 2019 and oral submissions, the asserted errors appear to concern issues about:
a)jurisdiction and power;
b)adequacy of reasons;
c)acting on a wrong principle;
d)mistaken facts;
e)failure to consider relevant matters; and
f)whether the exercise of discretion miscarried.
Was the order as to costs beyond jurisdiction or power?
The appellant correctly concedes that s 117 of the Act provides power to make an order for litigation expenses. However, the appellant asserts that the order that the primary judge made, whilst appearing to be an order for litigation expenses, was in reality, given the facts of this case, an interim property order impermissibly made under s 90SM because:
a)it was made contrary to s 90SA(1) of the Act given the existence of the Cohabitation Agreement;
b)the respondent’s claim under s 90SM had yet to be formulated; and
c)There was no consideration of the principles advanced in Stanford v Stanford (2012) 247 CLR 108.
I accept that if the order was in fact an interim property order under s 90SM, it would not have been properly made.
The appellant also argued that the order as to costs was in reality an order made under s 90SM because the order required the appellant to transfer the amount of $100,000 from assets that he held and consequently the order effected an alteration of property.
The respondent’s interim application sought the payment of $135,000 “on account of the Wife’s Legal Costs”. The primary judge at [1] of the reasons described this as interim relief sought “in the form of a litigation funding order”. At [14] to [16] of the reasons, the primary judge identifies there are at least three sources of power to make litigation funding orders; s 117, s 90SM and s 90SF of the Act.
The primary judge said:
17.Many cases have now emphasised the importance in applications such as this of identifying the relevant source of power for the proposed order, as that determines the necessary preconditions and relevant considerations for making the order…
…
19.The [respondent] expressly advances her claim for litigation funding under s 117 of the Family Law Act, and no other basis.
…
45.… This is an application explicitly under s 117…
(Footnote omitted)
The primary judge sets out ss 117(1), 117(2) and 117(2A) in full at [14] of the reasons. His Honour’s discussion of the arguments made by the respondent on the one hand and made by the appellant on the other hand and his exercise of the discretion are contained at [19] to [47]. There can be no doubt that his Honour determined the matter applying the provisions of s 117 and without reference to the possible alternative provisions of s 90SM or s 90SF.
I reject the appellant’s argument that whilst the application for the litigation funding order might appear to have been dealt with under s 117(2), the legislative basis for making the order is not what it appears to be. Any interim order made for litigation expenses moves money from one party to the other or more usually, to the lawyer for the other. That alone does not make it an order altering the interests of a party in property pursuant to s 90SM of the Act. The order was incontrovertibly made under s 117(2) and there was jurisdiction and power to do so.
There is no merit in any ground of appeal which asserts a lack of jurisdiction or power to make the order.
Were the primary judge’s reasons inadequate?
Whether reasons are adequate will depend upon the issues for determination. The losing party needs to know why they lost and an appeal court should not be denied the opportunity to detect error (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 279 and Bennett and Bennett (1991) FLC 92‑191 at 78,266).
At [20] to [21] of the reasons, his Honour adequately explains why he accepted that the respondent had an arguable case, both in relation to impugning the Cohabitation Agreement, and if successful, for a property settlement order in due course.
At [43] to [47], the primary judge explains why he exercised his discretion to make an order for $100,000 in the respondent’s favour for litigation expenses:
43.Ultimately I identify the points in favour for an order for litigation funding as sought by the [respondent] to be as follows:
·The [respondent] has an arguable case for substantive relief;
·There is a marked disparity in the assets and financial resources of the parties;
·Absent a litigation funding order, the [respondent] will not be able to pay for legal representation (albeit that does not necessarily mean she will be without legal representation).
44.On the other hand I identify the following points as telling against the [respondent’s] application:
·There is realistically no prospect of her ever being able to refund any sums to the [appellant] in relation to litigation funding, unless she, firstly, succeeds in having the [Cohabitation Agreement] set aside, and secondly, succeeds in proceedings for property division;
·There is an element of “Rolls Royce” in the level of funding which she seeks, including both for senior and junior counsel;
·It is not impossible, and indeed reasonably foreseeable, that pro bono counsel, and perhaps sympathetic solicitors, could represent her at the hearing.
45.Weighing all those factors in the balance to my mind tells in favour of there being an order for litigation funding in favour of the [respondent] in this case. I am satisfied that such an order is, in the circumstances of this case, just. Particularly, the disparity of the parties’ financial positions deserves real weight. I should say that I have some difficulty in giving much weight to the “irreversibility” point (although I accept it is valid). This is an application explicitly under s 117; by what means a costs order might be reversed so as to effect repayment to the [appellant], is unclear. I can understand questions of reversibility if the claim for funding is advanced as an interim property order, but the issue would otherwise inevitably arise in every case involving an impecunious applicant under s 117.
46.In any event, the exercise here is exactly as confronted Kent J in Rakete (supra) at [54]-[55]:
54.On the basis that s 90K of the Act is statutory recognition of the potential for injustice in cases falling within one or more of the circumstances it identifies, it follows that it would be unjust if the protection it affords cannot, in practical terms, be accessed by a party seeking it by reason of impecuniousness occasioned in any way by one or more of the very circumstances s 90K identifies.
55.Put another way, the capacity to repay, whilst a relevant consideration, cannot be elevated to the status of an essential pre-condition to the making of an Order in cases involving s 90K. To do so would place a fetter on the discretion that is in conflict with the mischief s 90K is designed to address.
47.I am further satisfied that the range of estimated costs is reasonable, and whilst there is some merit in the assertion that there is a “Rolls Royce” aspect to the costs, by selecting the figure at the lower end of the range, which is about $100,000.00, those concerns can be accommodated.
The primary judge has adequately explained why the litigation funding order was made. There is no merit in any challenge based upon an assertion that the reasons were inadequate.
Did the primary judge act upon a wrong principle?
The appellant asserts that the primary judge failed to have properly applied s 117(1) of the Act which is in the following terms:
(1)Subject to subsection (2)… each party to proceedings under this Act shall bear his or her own costs.
The primary judge set out the terms of s 117(1) at [14] of the reasons. As is self‑evident, s 117(1) is subject to s 117(2) which was enlivened in this case because the primary judge found it was just to depart from the general rule in s 117(1). As the High Court made clear in Penfold (see [60] above), in those circumstances, s 117(1) must yield to s 117(2) of the Act.
The appellant did not assert that the primary judge had misapplied any other appropriate principle.
There is no merit in this ground.
Did the primary judge make any material mistake as to facts or presumptions?
Firstly, the appellant asserts the primary judge erred in finding or presuming that:
a)the respondent could not conduct her own case;
b)the respondent could not get legal representation at scale costs as set out in Sch 3 of the Family Law Rules 2004 (Cth); and
c)the respondent could not get a lawyer who would operate on a no win/no charge basis or alternatively could not get one to do so if litigation expenses were paid into a frozen account.
Given the arguments foreshadowed in the respondent’s application under s 90UM to set aside the Cohabitation Agreement, it was open to the primary judge to presume it was preferable for the respondent not to conduct her own case. At [43] and [44] of the reasons (set out above), the primary judge found that absent a litigation funding order, the respondent would not be able to pay for her present legal representation (albeit that does not necessarily mean she will be without legal representation) but that it was not impossible, and indeed reasonably foreseeable, that pro bono counsel and perhaps sympathetic solicitors, could represent her at the hearing.
It is consequently apparent that the primary judge did not make the factual errors or presumptions asserted.
Secondly, the appellant submitted that the primary judge incorrectly presumed that the appellant would continue to be legally represented. No such presumption is articulated by the primary judge but it is reasonable to assume that that is what his Honour did presume. The appellant was in a position of financial strength, relative to the respondent, and had the funds available to pay lawyers. It was conceded that his present lawyers were being paid and their fees were not being deferred. It was not suggested to the primary judge that the appellant would not be legally represented in the future. There is no merit in this complaint.
Thirdly, the appellant also asserted the primary judge was mistaken when he found at [21] that the respondent had an arguable case both in relation to impugning the Cohabitation Agreement and if successful, for a property division in due course.
In respect of the first finding, the respondent’s challenge to the Cohabitation Agreement was on the basis of undue influence and unconscionability (see Thorne v Kennedy (2017) 263 CLR 85 at [30]–[33]; [37]–[60] and s 90UM(1)(e) and (h)). As set out at [55] above, although clauses 5.4 and 5.5 of the Cohabitation Agreement might be inconsistent, clause 5.5 provides that assets held in the title or name of one party would be retained by that party irrespective of either the value of those assets at separation or contributions made by the other party after March 2008. Also as discussed, the net pool of assets was about $1,350,000 with the appellant holding title to all of those assets.
The primary judge had considered the respondent’s untested evidence including:
a)the respondent’s assertion the Cohabitation Agreement was offered to her on the basis of it being non-negotiable, with the respondent feeling she had no choice but to sign, and no ability to negotiate;
b)the respondent felt pressured over a period of time, and was made to feel she had to sign the Cohabitation Agreement to stop the appellant from pressuring her, and berating her to sign the Cohabitation Agreement;
c)the meeting with the respondent’s solicitor was for approximately 30-45 minutes, with no ability to reflect upon the meeting, or any advice given to the respondent, prior or during the short meeting with the solicitor;
d)at the time of the signing of the Cohabitation Agreement, the respondent was in a relatively inferior financial position;
e)the respondent’s comprehension of the English language was limited to basic English; and
f)the respondent had limited understanding of the meaning and effect of the Cohabitation Agreement as a consequence of her limited English comprehension.
If the Cohabitation Agreement was to be set aside, some of the evidence the respondent relied upon in support of her application for alteration of property, asserted:
a)although the appellant’s financial contributions exceeded that of the respondent’s, the parties were in a de facto relationship for about 14 years;
b)during the relationship, the respondent made significant contributions to the home, including home maker duties;
c)the respondent cared for the appellant whilst he was unwell;
d)the respondent was financially supported by the appellant who was responsible for the mortgage, and other living expenses, whilst the respondent also contributed to some extent to living expenses;
e)the appellant further financially supported the respondent by providing her additional income each month to assist with covering living expenses;
f)the appellant’s position was far superior to that of the respondent’s;
g)the respondent currently only receives a pension, and has no other assets of value, and as such has greater financial needs compared to those of the appellant; and
h)post separation, the appellant has provided financial support to the respondent. The respondent received $6,057 from the appellant following her request for support on 22 May 2017. The funds were requested on account of expenses including urgent repairs to her car and the purchase of new dentures.
The primary judge acknowledged at [21] that the appellant’s evidence contradicted many of the respondent’s assertions.
It was open on the evidence for the primary judge to find the respondent had an arguable case for substantive relief pursuant to s 90UM and for a property settlement order.
No material mistake by the primary judge as to facts or presumptions has been demonstrated.
Did the primary judge fail to take into account a relevant consideration?
Firstly, the appellant complains that the primary judge failed to accept that the Cohabitation Agreement had operative effect. This complaint is without merit given at [28] his Honour records:
… The uncontroversial starting point for that argument was that, unless and until the cohabitation agreement has been set aside, it must be presumed to be legally binding, and the parties bound by it…
Secondly, the appellant asserts that the primary judge failed to take into account that the Cohabitation Agreement was an agreement between the parties which contractually precluded the respondent from seeking the orders.
Whilst the existence of the Cohabitation Agreement is a relevant consideration, absent the provisions of s 90SA, the Cohabitation Agreement does not exclude the power of a court to entertain an application for the orders sought by the respondent (see Sykes and Sykes, Dotch and Ors (1979) FLC 90-652; Woodcock v Woodcock (1997) FLC 92-739; Candlish and Pratt (1980) FLC 90‑819 and Woodland and Todd (2005) FLC 93-217). No question of estoppel arises. There is no merit in this challenge.
Thirdly, the appellant asserts that the primary judge failed to find that the respondent had not demonstrated she could not have conducted her own case or found alternate lawyers prepared to act on an arrangement as to fees different from the one that she had with her current lawyer. This is just another way of framing the complaint that the primary judge made a mistake in presuming that the respondent could not do this. I have already found that complaint without merit.
Fourthly, in this Court, but not before the primary judge, the appellant asserts that the primary judge failed to acknowledge that the sum of $100,000 would be first used by the respondent’s solicitors to discharge an existing debt owed for work that had already been conducted. That consideration is of no great relevance given that an order for litigation expenses may be made for expenses already incurred (see [66] above). In any event, at [22] of the primary judge’s reasons, his Honour says:
22.The [respondent’s] solicitor says that the likely costs of the litigation, up until the conclusion of the separate hearing of the preliminary matter as to whether or not the cohabitation agreement should be set aside, will be in the range of $100,806.58 to $132,056.58.
The primary judge is quoting from paragraph 8 of the respondent’s lawyer’s affidavit filed on 5 November 2018. At paragraphs 6 and 7 of that affidavit, the respondent’s lawyers give particulars as to how those totals are calculated. On the face of those particulars, the fees incurred up until the time of the swearing of the affidavit were $45,006.58. Not every fact considered needs to be set out in the reasons (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). His Honour was not specifically asked to take into account how the overall estimate of fees had been calculated nor was it submitted that an order for litigation expenses was unjust if it was to be used in part to pay legal costs already incurred. On appeal, a party is bound by the manner in which they conducted their case at trial particularly where the point sought to be raised on appeal could have been met at the trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”); Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438).
There is no merit in this fourth challenge.
Overall, the primary judge did not fail to take into account a relevant consideration.
Exercise of discretion
A number of the appellant’s grounds of appeal make the general assertion that the exercise of discretion by the primary judge was substantially wrong (and inferentially, the order made on the facts was unreasonable and plainly unjust). Notoriously, arguments about the weight accorded to the evidence face a high hurdle to achieve appellate success (Gronow v Gronow (1979) 144 CLR 513 at 519-520).
Under the rubric of this challenge, the applicant asserts that discretion miscarried because the primary judge failed to give weight to the facts, either individually or cumulatively, that:
a)the order made was for indemnity costs;
b)the order made was irreversible if the respondent ultimately was not successful; and
c)the applicant had not formulated the order that she sought under s 90SM.
Was the order for costs made on an indemnity basis and, if so, was that impermissible?
The appellant complains the primary judge erred in failing to take into account that the order as to costs sought and ordered was for indemnity costs and making an indemnity costs order was an impermissible exercise of discretion.
The appellant made a submission at trial (Appellant’s Outline of Submissions, paragraphs 31 and 32) that the appellant should not automatically bear what amounted to an indemnity costs order and that any litigation funding costs order should be limited to the Family Court scale of fees and considered in conjunction with a managed approach to the litigation.
It is not contentious that the respondent’s estimated range of legal fees, between $100,806.58 to $132,056.58, was on at least a solicitor/client basis. The selection of $100,000 at the lower range by the primary judge is still on that basis and not on a party/party basis. The appellant asserts that absent some special or unusual feature that would provide a proper basis for a solicitor/client or indemnity costs order, the primary judge erred in making such an order for costs (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Prantage and Prantage (2013) FLC 93-544 and Kohan and Kohan (1993) FLC 92-340). It is not controversial that normal indicia for indemnity costs orders did not exist in this case.
However, s 117(2) allows the court to make “such order as to costs” as the court considers just. The power is not confined to making an order for costs after completed interlocutory or final proceedings where such matters as the conduct of the parties, a party being wholly unsuccessful and written offers can be taken into account. As already mentioned, an order for litigation expenses can be at a rate that appears reasonable, does not need to be at scale and can be for costs already incurred (see [66] above). One of the purposes for an interim litigation funding order is to attempt to create a “level playing field” (to repeat the expression used Gould & Gould [1994] FamCA 76 quoted in Farnell and Farnell (1996) FLC 92-681 at 83,079).
There was no suggestion other than that the appellant had paid his lawyers on a solicitor/client basis. The order as to costs is unlikely to cover all of the respondent’s legal costs if the matter is litigated to a final conclusion.
Whilst exceptional circumstances did not exist to make an indemnity costs order, the primary judge did not err when making an order for litigation expenses in the sum of $100,000.
Should an order be made which is potentially “irreversible”?
As indicated above, the primary judge acknowledged at [44] of the reasons that unless the respondent was ultimately successful, there is no realistic prospect of her ever being able to refund the $100,000. This is a discretionary consideration (see Zschokke and [68] above). At [46] of the primary judge’s reasons, his Honour adopted the statement by Kent J in Rakete (see [69] above).
The weight to be placed upon this consideration will be dependent upon the facts of an individual case and the weight given to other relevant considerations.
During submissions, reference was made to Rakete; Wall & Mitchell [2010] FamCA 1194; Esdale & Schenk (2010) 46 Fam LR 547 and Norton & Wilkins [2017] FamCA 992 to illustrate how other judges at first instance had weighed this consideration in circumstances where jurisdiction to make the substantive order had yet to be established. Each of these cases have factual features very different from each other and the present case.
The primary judge’s reasons demonstrate that he was cognisant of the relevant facts in this case. At [45] he accepted that the “irreversibility” point was valid but in the exercise of his Honour’s discretion, decided against giving it much weight.
Further, as a buttressing argument on appeal, the appellant says that the primary judge could have ameliorated the risk of not being able to reverse the order by making an order for a lower amount or an order leaving unbilled costs and disbursements, which had to the date of the trial been deferred by the respondent’s lawyers, out of the calculation. However, no submission that the quantum of the order could be used to ameliorate any lack of reversibility was made to the primary judge at the hearing by the appellant and again the appellant is bound by the manner in which he conducted his case at trial (Metwally at [71]).
It is worth observing that the word “reversibility” is apt to mislead. It would not usually be appropriate to discharge an order for litigation expenses that have been complied with. The Full Court in Hogan and Hogan (1986) FLC 91-704 (“Hogan”) at 75,092 referred to the fact that the primary judge had attached to an order for litigation expenses the direction: “[t]he amounts paid by the husband…be taken into account in the determination of the property proceedings between the parties”. The Full Court in Zschokke at 83,211 noted that the Full Court in Hogan did not interfere with the primary judge’s direction and at 83,217 referred to their approval of the course adopted. However, even if such a provision is not made, it is axiomatic that, in any successful application by the respondent pursuant to s 90SM, the court when making an appropriate, just and equitable property settlement order, can take into account the interlocutory order for litigation expenses which had been made in the respondent’s favour.
Should the order as to costs have been made when the respondent had not been precise about the order she sought under s 90SM?
The appellant challenged the primary judge’s exercise of discretion in making the litigation funding order in circumstances where the primary judge had made a finding that the respondent had an arguable case for both an order under s 90UM and under s 90SM.
On appeal, the appellant submitted that the primary judge had failed to carry out any assessment of s 90SM considerations including whether any order should be made and what the minimum might be that the respondent might expect. The respondent had not formulated the terms of the final property settlement order or the order for spousal maintenance which she seeks, notwithstanding the fact that she has incurred approximately $45,000 in legal fees to date.
The primary judge did not embark upon such an assessment of s 90SM(3) and (4). There was no submission made to the primary judge that he should embark upon an assessment of s 90SM(3) and (4) considerations and as earlier indicated, the hearing of this type of application is summary in character. A detailed hearing of the merits is not required as the respondent did not need to establish her final case.
Although it was not argued at trial or on appeal, in the circumstances of each case, one relevant factor under s 117(2)(g) may be whether the quantum of a proposed order for litigation expenses is likely to be greater than any benefit a party shall receive from the proceedings, given that monies received as a result of an order for litigation expenses were likely to be taken into account in the determination of the final outcome. This consideration is analogous to the need in s 44(6) applications to have regard to whether or not the granting of leave would alleviate hardship (see Edmunds & Edmunds (2018) FLC 93‑847 at [88]).
The respondent’s lawyer gave the following opinion evidence:
Based on my experience in family law litigation and my assessment of the authorities, I consider that should [sic] cohabitation agreement be set aside, my client’s entitlement would exceed the funds she seeks on an interim basis.
(Respondent’s solicitor’s affidavit filed on 5 November 2018, paragraph 11)
In the respondent’s Outline of Submissions at trial at paragraph 37, the respondent submits “[e]ven if [the respondent] were to receive only 15% of what is considered the current pool on the [appellant’s] current financial statement (an amount which is not accepted as to what would be considered an appropriate adjustment), this would equate to approximately $210,000”. The appellant did not challenge this submission at trial. It can also be observed that had the primary judge applied the subjective test of Moss J in Chester (the respondent’s lawyer’s advice as to whether or not the respondent had a good case), that standard would have been satisfied.
As set out at [64] and [65] above, the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. At [43] of the reasons, the primary judge found that the respondent has an arguable case for substantive relief. Whilst the primary judge did not explicitly say that the respondent’s case deserved to be heard, when read as a whole, that was the conclusion which was reached by the primary judge.
I am unable to conclude that the primary judge’s consideration of whether the respondent has an arguable case for substantive relief was unreasonable or plainly unjust.
Conclusion about the primary judge’s exercise of discretion
An appellate court will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment and intuition involved. This court does not have the authority to disturb a decision simply because, faced with the same material, it might have reached a different conclusion to that under appeal. The claim that the exercise of the primary judge’s discretion miscarried when making the litigation funding order, fails.
Conclusion about the appeal and leave to appeal against the litigation funding order
Given that none of the grounds of appeal which challenge the order for litigation expenses succeed, the appeal against the order would fail if leave were granted. The decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by this court and the first limb of Medlow & Medlow (2016) FLC 93-692 at [57] is not satisfied. Accordingly, the appellant’s application for leave to appeal the litigation funding order should be dismissed.
Grounds of appeal in relation to the spousal maintenance order
There are five grounds of appeal (Grounds 10 to 14) in relation to the interim maintenance order made under s 90SE of the Act. Grounds 10(a) to (e) were abandoned.
What is the significance of the Cohabitation Agreement being a Part VIIIAB financial agreement?
It was not controversial that by virtue of Part 2 Division 5, item 88(2) of Schedule 1 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth) (“the Transitioning Act”), the Cohabitation Agreement is taken to be a Part VIIIAB financial agreement under s 90UC of the Act.
Section 90SA(1) of the Act excludes the court’s power to make maintenance orders when those matters are the subject of provisions in a binding Part VIIIAB financial agreement.
It is convenient to again record clause 5.1 of the Cohabitation Agreement provided that “[n]either will be required to pay maintenance to the other”.
Do the provisions of s 90UI apply and, if so, when do the maintenance provisions of the Part VIIIAB financial agreement come into effect?
In order to avoid the operation of s 90SA(1), the respondent relied upon the provisions of s 90UI of the Act to argue that she was not prohibited from making an application for spousal maintenance.
Section 90UI(1) and (2) provides:
(1)No provision of a Part VIIIAB financial agreement excludes or limits the power of a court to make an order under Division 2 in relation to the maintenance of a party to the agreement if subsection (2) applies.
(2)This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.
(Emphasis added)
The purpose of s 90UI (and s 90F(1A) in respect of married persons) is the protection of the social security system. As counsel for the appellant conceded, as a matter of public policy, parties cannot contract out of these provisions.
The operation of s 90UI is not excluded by item 93(1) of Schedule 1 to the Transitioning Act.
The primary judge was satisfied at [79] that the prohibition on a claim for maintenance came into effect no earlier than the time of the parties’ separation, or “most likely 12 weeks thereafter”. The latter conclusion relied upon the definition in the dictionary in the Cohabitation Agreement of “separation” being “the irretrievable breakdown of the de facto relationship such that the parties have been living separately and apart for twelve (12) weeks other than by reason of illness, business or holidays”. The primary judge concluded that at that time, taking into account the terms and effect of the Cohabitation Agreement, the respondent was unable to support herself without an income tested pension, allowance or benefit and therefore, s 90UI(2) was enlivened and s 90SA(1) was avoided.
Initially the appellant challenged the findings made by the primary judge that the Cohabitation Agreement attracted the provisions of s 90UI(1) and that clause 5.1 “came into effect” at or following separation (Grounds 10 (a)–(e)). The appellant had argued that s 90UI(1) was not attracted because clause 5.1 of the Cohabitation Agreement, requiring neither party to pay maintenance to the other, came into effect in March 2008, upon the execution of the Cohabitation Agreement. The appellant abandoned this position during oral submissions at the hearing of the appeal, and even when pressed, did not offer any assistance on the point. Consequently, the possible unavailability of s 90UI and the meaning of the words “come into effect” in s 90UI(2) was not the subject of argument. That said, in order for the primary judge to have had power to make an interim maintenance order, I need to be satisfied s 90UI applies in respect of this Cohabitation Agreement.
The constitutional basis of Part VIIIAB of the Act is the referral power (s 51(xxxvii) of the Australian Constitution). Section 4(1)(a) of the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld) (“the Act referring powers”) relevantly referred power in relation to:
(a)Financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes.
(Emphasis added)
There is no power for the Commonwealth to enact any laws about financial matters relating to de facto partners (which includes maintenance; s 3(1)(a) of the Act referring powers) other than ones which have effect “arising out of the breakdown” of the de facto relationship. This does not mean that the Commonwealth cannot, as it has done, legislate to provide a regime of private ordering by binding financial agreement that comes into effect upon the breakdown of the de facto relationship.
Section 90UC allows parties to a de facto relationship to enter into a written agreement about matters which may include, inter alia, maintenance, in the event of the breakdown of the relationship (s 90UC(1)(a); (2)(b)). For clause 5.1 of the parties’ Cohabitation Agreement to have binding effect in a s 90UC agreement, it can only have effect on or after the breakdown of the relationship of the parties.
Section 90SE of the Act provides that a court may make such order as it considers proper for the maintenance of one of the parties to a de facto relationship “after the breakdown of the de facto relationship”. This is important because, as indicated, s 90UI is designed to protect the revenue by not allowing a cohabitation agreement to limit a de facto spouse’s ability to make a maintenance application if she/he otherwise requires an income tested pension, allowance or benefit to support themselves. It follows that it would defeat the purpose of s 90UI to interpret the words “when the agreement came into effect” as meaning the date of the signing of the s 90UC agreement, when no application for spousal maintenance could be made at that time.
For the sake of completeness, I note:
a)section 90UG provides that provisions in a Part VIIIAB financial agreement that are incidental or ancillary to, inter alia, maintenance are of no force or effect unless and until the de facto relationship breaks down; and
b)that s 90UF(1) of the Act provides that a provision in a Part VIIIAB financial agreement (which the Cohabitation Agreement in this case is taken to be), so far as it relates to property or financial resources but not maintenance are of no force and effect until a separation declaration is made. A declaration must state the parties have separated and are living separately and apart at the time the declaration is made.
The primary judge was clearly correct in finding that s 90UI of the Act was engaged and that the respondent could rely upon it, if she could establish at the time of the breakdown of the relationship, she was unable to support herself without an income tested pension, allowance or benefit.
Was the respondent able to support herself without a pension?
Grounds 10(f) and 11 are:
10.The Court fell into error in finding and/or assuming or interpreting the Agreement when finding that:
…
(f)… [T]he Respondent was rendered unable to support herself on the balance of probabilities;
…
11.The primary judge’s decision as to the application of section 90UI of the Family Law Act 1975 Cth was vitiated by his Honour’s reliance upon material findings of fact for which there was no evidence, or which were not reasonably open on the evidence, in particular, the primary judge did not give adequate or any consideration to the respondent’s capacity to obtain employment to support herself without an income tested pension, allowance or benefit when the Cohabitation Agreement “came into effect” under section 90UI of the Family Law Act 1975 Cth.
(As per the original)
The appellant argued that the court ought to have found that at the date of separation, the respondent had not established that she was unable to support herself adequately and had not established that she was in need of a means tested pension. The appellant referred to the sustained work history of the respondent, her reasonable health and the fact that she put on no evidence of any attempts to gain employment. It was submitted that an inference could not be drawn simply because of her age, in the absence of appropriate attempts to obtain gainful employment.
It was uncontroversial that at trial:
a)the respondent was aged 71;
b)the respondent had retired from employment at the age of 65;
c)at the time of the hearing the respondent had net assets of approximately $6,800;
d)the respondent had commenced receiving an income tested Centrelink pension when she was approximately 64 or 65; and
e)in 2015 the appellant commenced paying the respondent approximately $1,000 per month to assist in supporting her.
At [8] the primary judge said:
By 2015, the [respondent] was retired and no longer working. She received a pension of $265.00 every two weeks. In consequence, the [appellant] commenced paying her $1,000.00 per calendar month.
When the Cohabitation Agreement was entered into in March 2008, the respondent had $70,000 in superannuation. By the time of the hearing, the respondent says she had expended this amount on personal and living expenses. The appellant relied upon his evidence that in January 2015 the respondent had obtained casual employment at some markets and in a hospitality business and had, for a short period, operated the business while the owner/manager returned to Asia to get married. This however, was at a time when the respondent was already on a reduced pension because of the parties’ ongoing relationship and the appellant was motivated to commence paying the respondent $1,000 per calendar month. At [9] of the reasons, the primary judge found that the payments of $1,000 per month ceased at the date of separation. I reject the suggestion that a 71 year old woman with deteriorating health is required to undertake the almost certainly humiliating exercise of seeking employment which she reasonably understands she is unlikely to obtain simply to satisfy the forensic test which the appellant asserts is set by s 90SE.
The appellant complains that the primary judge did not deal with asserted inaccuracies in financial documents provided by the respondent which he says indicated that the respondent may have greater financial resources available to her in the form of investments than outlined by her in her sworn material. The primary judge was entitled to place more weight on the uncontentious rather than the untested evidence.
It was open to the primary judge to conclude at the time the Cohabitation Agreement came into effect, the respondent was unable to support herself without the pension, allowance or benefit and that accordingly, s 90UI was enlivened.
There is no merit in grounds 10(f) and 11.
The challenges to the spousal maintenance order
Counsel for the appellant argued in his Summary of Argument that clause 5.1 of the Cohabitation Agreement and the appellant’s ability to plead contractual and equitable defences was a complete answer to the respondent’s claim for interim maintenance. As already discussed, it is only when an agreement satisfies s 90SA(1) that jurisdiction and the court’s ability to exercise power under s 90SE is excluded.
The appellant’s other challenges to the maintenance order are set out in Grounds 10(g), 12, 13 and 14:
10.The court fell into error in finding and/or assuming or interpreting the Agreement when finding that:
…
(g)… [T]he appellant in the circumstances of a loss to him of $100 000 pursuant to Order 1 had the ability to pay the periodic amounts awarded.
…
12.The primary judge erroneously failed to provide proper reasons as to how [h]is Honour arrived at the finding that the respondent’s weekly expenditure is reasonable.
13.The primary judge erroneously failed to give adequate consideration to the substantial injustice caused to the appellant in making an order for spousal maintenance from capital held by the appellant in circumstances where the appellant is reliant upon the income produced from capital to support himself.
14.That the Reasons for Judgment delivered 14 June 2019 demonstrate an error of law in that the Reasons advanced in the determination of the Respondent’s claim for spousal maintenance are insufficient to conclude that the Court determined the matter according to law and that the Court exercised its discretion correctly.
(As per the original)
The appellant submits that it was inappropriate and unreasonable to make an order for maintenance on an interim basis given the complexity of the factual issues in dispute, including the duration, nature, cessation and conduct of the parties during the relationship and the balancing of their competing needs arising from health, age and income capacity.
At [48] of the primary judge’s reasons, the primary judge sets out the effect of the relevant provisions of s 90SF(1) and (3) and records that the nature of the exercise in an interim application for spousal maintenance involves a broad‑brush approach and not an “exhaustive” hearing (Redman and Redman (1987) FLC 91-805).
The reasons of the primary judge should be read as a whole. The primary judge identified the relevant financial circumstances of the parties at [26] of the reasons:
I then turn to the parties’ financial circumstances. The [respondent’s] are somewhat parlous; the total of her assets are said to be worth $6,800.00 and her only present income government benefits totalling $453.80 per week. In contrast the [appellant] concedes that he has a property with a value of $560,000.00, $335,804.00 cash in one account, $5,769.00 in another account, $439,409.90 worth of shares, and a motor vehicle worth approximately $20,000.00. He has a weekly income of $483.14.
His Honour had indicated he intended to make an order that from the $1,350,000 (net) held by the appellant, he would pay to the respondent a sum of $100,000 as to costs. His Honour at [81]–[97] thereafter discussed succinctly other relevant s 90SF(3) considerations.
It was not suggested by counsel for the appellant that those findings were not open to his Honour.
As his Honour noted at [85], s 90SF(4) of the Act obliges him to disregard the respondent’s receipt of a Government pension.
In the context of this interim hearing, the primary judge was correct to assume the respondent had no earning capacity.
The challenge by the appellant to the primary judge’s conclusion that the respondent’s expenses of $516.05 per week were proper, fails. The primary judge took a broad-brush approach, including considering the respondent’s claim in the context of the appellant’s claim that his weekly expenses were $894 per week.
The appellant submits that the primary judge erred in not finding as a fact that the appellant was unable to earn income due to his long-standing ill health and he did not have the capacity to pay spousal maintenance from his income. The primary judge was more than aware of those circumstances (see [82] and [84] of the reasons). The appellant asserted that the primary judge did not adequately demonstrate that he understood that the appellant was in part living off interest earned on his capital and by drawing down upon his capital. The primary judge explicitly acknowledged that the appellant used capital to earn income on which to live (see [99] of the reasons).
It was open to the primary judge to conclude that the respondent is unable to support herself adequately and that the appellant had a reasonable ability to maintain the respondent and that the proper order was in the quantum claimed by the respondent.
There is no merit in Grounds 10(g) and 12–14.
Leave to appeal the spousal maintenance order
The primary judge’s decision to make the interim spousal maintenance order is not attended by sufficient doubt to warrant it being reconsidered by this court. The appellant’s application for leave to appeal the spousal maintenance order should be dismissed.
Costs
The respondent made an application for costs, in accordance with Schedule 3 of the Family Law Rules 2004 (Cth), in the range of $22,670.12 to $38,794.58. The appellant raised an issue as to the reasonableness of the respondent being represented by senior and junior counsel. Senior counsel for the respondent pointed out, and I accept, that it was not until the appellant was making oral submissions that the complex issue that had been raised by the Amended Notice of Appeal in relation to the construction of the legislation in relation to s 90UI and the Transitioning Act remained alive and accordingly, it was appropriate for the respondent to have chosen the representation that she did. The appellant did not otherwise cavil with the range of the quantum of the costs claimed by the respondent and it is just the appellant be ordered to pay the respondent’s costs assessed in the sum of $30,000.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 12 June 2020.
Associate:
Date: 12 June 2020
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