Samper & Samper
[2022] FedCFamC2F 1124
Federal Circuit and Family Court of Australia
(DIVISION 2)
Samper & Samper [2022] FedCFamC2F 1124
File number(s): SYC 2499 of 2015 Judgment of: JUDGE ELDERSHAW Date of judgment: 25 August 2022 Catchwords: FAMILY LAW – COSTS – Where final property orders were made in 2020 – Where the wife seeks costs on an indemnity basis – Where the wife alternatively seeks costs on a party/party basis – Where the husband opposes all costs applications against him – Where the wife made offers to settle – Where the husband did not respond to the offers to settle – Where the husband failed to provide proper disclosure – Where the husband shall pay the wife of an incidental to the substantive proceedings on an indemnity basis – Where the husband shall pay the wife of and incidental to the application for costs on a party/party basis – Where there is certify for counsel Legislation: Family Law Act 1975 (Cth) ss 79, 117
Family Law Rules2004 (Cth) r 10.06
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 4.11(2), 12.17
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 1250
Black & Kellner (1992) FLC 92-287; [1992] FamCA 2
Browne & Green (2002) FLC 93-115; [2002] FamCA 791
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
I & I (No. 2) (1995) FLC 92–625; [1995] FamCA 80
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfoldv Penfold (1980) 144 CLR 311
Rimac & Rimac (No 2) [2022] FedCFamC1F 159
Weir & Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 2 Family Law Number of paragraphs: 89 Date of hearing: 8 August 2022 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Madison Marcus Law Firm ORDERS
SYC 2499 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SAMPER
Applicant
AND: MR SAMPER
Respondent
order made by:
JUDGE ELDERSHAW
DATE OF ORDER:
25 AUGUST 2022
THE COURT ORDERS THAT:
1.Within 28 days from the date of these Orders, the husband pay to the wife the costs of, and incidental to, the proceedings instituted by the Initiating Application filed 30 July 2015, and the Application in a Case filed by the wife on 2 May 2017, including, but not limited to, the costs of the hearing and costs of Senior Counsel fixed pursuant to rule 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in the amount of $277,330.
2.Within 28 days from the date of these Orders, the husband pay to the wife costs of, and incidental to, the Application for Costs filed 3 August 2020 on a party/party basis fixed in the sum of $40,144.
3.Certify for Counsel, including Senior Counsel.
4.All outstanding applications are otherwise dismissed and the proceedings are removed from the List of Matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Samper & Samper has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
This is an Application for costs made by Ms Samper (formerly Samper) (“the wife”) against Mr Samper (“the husband”).
Final property Orders were made on 6 July 2020 (“Final Orders”).
The wife seeks:
(a)Costs of, and incidental to, the substantive proceedings on an indemnity basis in the fixed sum of $373,673.36. In a series of alternatives, she next seeks indemnity costs as assessed or agreed, then party/party costs in the fixed sum of $282,464.58, and then party/party costs as assessed or agreed;
(b)Costs relating to the Application in a Case filed on 2 May 2017 and costs of subpoenas, to the extent such costs are not otherwise ordered; and
(c)Costs of and incidental to the substantive Costs Application on an indemnity basis in the fixed sum of $56,769.03 or, alternatively in the fixed sum, on a party/party basis, of $40,144 (“Costs of Costs Application”).
The husband opposes all costs applications against him.
DOCUMENTS
The wife relies on:
(a)Orders and Reasons for Judgment dated 6 July 2020;
(b)Initiating Application filed 30 July 2015;
(c)Response to Initiating Application filed 12 January 2016;
(d)Amended Initiating Application filed 14 July 2016;
(e)Application in a Case filed 2 May 2017;
(f)Her affidavit filed 2 May 2017;
(g)Orders dated 3 May 2017;
(h)Her affidavit filed 3 August 2020;
(i)Application in a Case filed 3 August 2020 (although appearing on the Portal with filing date of 2 October 2020);
(j)Her affidavit filed 10 June 2022;
(k)Her Financial Statement filed 10 June 2022;
(l)Outline of Case Document (Interim Hearing) filed 17 June 2022, including the Minute of Orders contained therein; and
(m)Costs Notice filed 17 June 2022.
The husband relies on:
(a)Response to an Application in a Proceeding filed 17 December 2021;
(b)His affidavit filed 17 December 2021;
(c)His Financial Statement filed 20 June 2022;
(d)His affidavit filed 17 August 2018;
(e)His Financial Statement filed 17 August 2018; and
(f)Written submissions dated 7 August 2022.
BACKGROUND
The parties were married and commenced cohabitation in 1987. They separated in June 2013.
On 30 June 2015, the wife commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). By that Application, she sought to retain 55 percent of the net assets of the parties. This included the whole of the Company AB, through which a business known as “C Company” was operated from premises at B Street, Suburb C (collectively “the Business”). The wife also sought an Order that the husband retain his F Company business.
On 12 January 2016, the husband filed a Response. By that document, the husband sought to retain 55 percent of the net assets of the parties including the Business and his F Company business.
On 9 May 2016, the parties attended a Conciliation Conference, at which the husband offered to purchase the wife’s interest in the Business using a value of $3,500,000.
On 7 July 2016, the wife offered to settle the proceedings on the basis that the Business be sold and the property of the parties be divided equally (“the 2016 Offer”).
At the time of the 2016 Offer, the value of the Business was in dispute. That said, the sale of the Business would crystallise its market value.
The 2016 Offer attached a set of draft Consent Orders. These included an Order for the calculation of Capital Gains Tax on the sale and creation of a retention fund for that purpose;, and a formula for calculating the overall equal distribution of property.
The husband did not respond to the 2016 Offer, nor seek clarification of it.
On 14 July 2016, the wife filed an Amended Initiating Application in which she sought Orders to reflect an overall equal distribution of assets and that the Business be sold.
On 2 May 2017, the wife filed an Interim Application seeking injunctions against the husband after he withdrew $125,000 from a business account. On 3 May 2017, without having filed a Response to the Interim Application, Orders were made by consent to, inter alia, require the husband to return the funds to the Business account.
On 25 June 2018, the wife offered to settle the proceedings on the basis that she retain the Business and pay the husband $1.75 million (“the 2018 Offer”).
The husband did not respond to the 2018 Offer.
On 8 August 2019, the wife offered to settle the proceedings on the basis that she retain the Business and pay the husband $1.6 million (“the 2019 Offer”).
The husband did not respond to the 2019 Offer.
Shortly before the hearing, the parties agreed that the value of the Business was $4,025,000.
The final hearing was listed for three days commencing 12 August 2019.
Until closing submissions on 13 August 2019, the husband sought to purchase the wife’s interest in the Business and retain it for himself. The husband proposed that, if he could not retain the Business, it should be sold with each party able to make an offer to buy it.
The third allocated hearing day was not required. The counsel for the wife charged a reservation fee of $6,000 for that day in accordance with his costs agreement.
The Final Orders of 6 July 2020 distributed the property of the parties equally, and permitted the wife to retain the Business on condition that she pay the husband the sum of $1,553.005.50 within three months, failing which the Business was to be sold.
LEGAL FRAMEWORK
The issue of costs is to be determined in accordance with s 117 of the Act, which relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(e) such other matters as the court considers relevant.
I note that:
(a)All relevant matters in s 117(2A) of the Act “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an Order for costs”: I & I (No. 2) (1995) FLC 92–625 at 82,277;
(b)No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664 at [24];
(c)There is nothing to prevent any factor in s 117(2A) of the Act being the sole foundation for an Order for costs: PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41]; and
(d)Neither special circumstances nor an exceptional case is required before an Order for costs can be made: Penfoldv Penfold (1980) 144 CLR 311.
APPLICATION FOR COSTS OF the SUBSTANTIVE PROCEEDINGS
Financial Circumstances of the Parties
The wife has net assets of about $2.4 million. This includes the value of the Business
(or business name) at $1 million and a gross weekly income from the Business of $8,030.
The husband has cash assets of $1,433,393 and real property valued at about $1 million (net). He has an income as a self-employed health care professional of about $112,000 per annum.
Wife’s Offers and Whether There was an Imprudent Failure to Accept
Settlement offers are a matter of considerable significance in the exercise of the Court’s discretion, and advert to the jurisprudence of the Full Court of the Family Court of Australia in Browne & Green (2002) FLC 93-115 which held:
The insertion of s 117C into the legislation is a clear indication of the desire of parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which the litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration, is something to which very significant weight ought normally be given.
I notice the words used by the Full Court were “adequate knowledge” as distinct from “complete” knowledge or total certainty; and “an appropriate basis” as distinct from “an exact basis” or similar. As I apprehend it, the Full Court has conveyed a need for parties to approach settlement discussions with a level of pragmatism and proportionality.
The wife made three offers to settle the proceedings. She contends that:
(a)Each offer was unambiguous, capable of acceptance and reasonable;
(b)The husband failed to respond to any of the Offers; and
(c)The husband’s refusal of each offer was imprudent.
The 2016 Offer
The 2016 Offer was, to the effect, that the property of the parties be divided equally, that the Business be sold, that the husband retain his business, and that other assets and resources be distributed in a convenient manner to give effect to the overall parity.
Of the 2016 Offer, at paragraph six of his written submissions, counsel for the husband said:
At that time, no valuations had been obtained as to the value of [the Business]. This offer contained some 23 pages and in particular in paragraph 14, it is submitted, contained a somewhat complicated formula as to the wife’s entitlement was to calculated and ascertained on the sale of [D Company]. A sale would also cause the parties to incur a potential CGT liability, as well as the costs of sale. The husband at that time was reluctant to sell [D Company], particularly as there was no formal valuation evidence and its retention had been part of his ultimate retirement plan. There had been a reference in the correspondence to the wife buying out the husband on the basis of ascribing a value of $3.1 million to the business and the husband buying out the wife at a value of $3.5 million ascribed to the business.
Having considered the draft Consent Orders attached to the 2016 Offer, I find that:
(a)The formula in Order 14 was an unremarkable expression of how to calculate the distribution of property in family law matters;
(b)
Capital Gains Tax, and a mechanism for calculating the sum, was addressed in
Order 10.6;
(c)The sale of the Business would crystallise its value. Thus, there was no reason to resist the sale of the Business on the basis that there was no formal valuation evidence; and
(d)The offer was unambiguous, reasonable and capable of acceptance.
The Final Orders placed the husband in no different positon than was offered to him in 2016. That is, he would receive half the parties’ net assets including the retention of his business.
I find that the husband’s failure to accept the 2016 Offer as imprudent. This fact alone attracts very significant weight given the antiquity of the Offer.
The 2018 Offer
The 2018 Offer was, to the effect, that the wife retain the Business and pay the sum
of $1,750,000 to the husband. The covering letter describes the effect of the Offer as being an equal distribution of assets. The 2018 Offer was open for acceptance for seven days.
However, I am not certain what value was ascribed to the Business for the purposes of calculating the cash sum. At the time of the 2018 Offer, I understand that the Business value was in dispute.
Counsel for the husband submits that the single expert valuation of the Business as at
June 2018 was $4,550,000, and that the wife’s expert ascribed a value of $4 million.
I am unwilling to conclude that the husband ought to have accepted an offer that proposed a cash payment of $197,000 more than he received pursuant to the Final Orders in circumstances where the value of the Business, to be retained in specie, was potentially $4,550,000. This can be distinguished from the 2016 Offer, where the value of the Business would be crystallised upon its sale.
The 2019 Offer
The 2019 Offer was, to the effect that, the wife retain the Business and pay the sum
of $1,600,000 to the husband. This offer was made on 8 August 2019. The hearing was due to start on 12 August 2019. The 2019 Offer was not expressly time limited and so was implicitly open for acceptance for a reasonable period. In my opinion, this would have included until at least 10.00 am on the first day of the hearing.
The husband submits that he was entitled and justified in relying on the single expert valuation of the Business, being $4,550,000, in his consideration and rejection of the Offer. However, unlike the circumstances of the 2018 Offer, shortly prior to the hearing, the parties agreed on the value of the Business. Once the value was clarified, there was no barrier to the husband calculating the effect of the 2019 Offer in real terms.
Had the husband accepted the 2019 Offer, he would have been better off, noting he was awarded a cash sum of $1,553,005, whereas the wife offered him $1,600,000. In those circumstances, I find that the husband’s refusal of the 2019 Offer was imprudent.
Conduct of the Parties
The wife contends that the husband did not make any offer of settlement during the proceedings, despite r 10.06 of the Family Law Rules2004 (Cth) (“the 2004 Rules”), as then applied.
Counsel for the husband submits that the rule requiring the making of offers did not apply in the same terms as required by r 4.11(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the FCFCOA Rules”). The purpose of this submission, as I understand it, is to guard against imposing a retrospective standard of conduct on the husband.
The operative rules at the time of the 2016 Offer were the 2004 Rules. Rule 10.06 of those Rules provided:
(1) This rule applies to a property case.
(2) Each party must make a genuine offer to settle to all other parties within:
(a) 28 days after the conciliation conference;
(b) if no conciliation conference has been held – 28 days after the procedural hearing at which the case was allocated the first day before the Judge; or
(c) such further time as ordered by the court.
As at July 2016, the Federal Circuit Court Rules 2001 (Cth) did not contain provisions about making offers. In such circumstances, the 2004 Rules applied in respect of this requirement.
I accept that the husband made an offer to settle the matter at the Conciliation Conference in May 2016. So much is clear from the wife’s letter dated 7 June 2016 containing
the 2016 Offer. However, the 2004 Rules required the husband to make an offer of settlement within 28 days of the Conciliation Conference. He did not do so, nor did he make an offer at any other time.
Pursuit of a case against the wife regarding the disposition of business profit
The wife contends that the husband pursued a contention that she had “wrongly retained or converted to her sole use and benefit” all the profits of the Business. This issue was addressed at paragraphs 47 to 121 of the trial judge’s Reasons.
I accept the wife’s contention that the trial judge was not satisfied that the wife improperly retained or converted funds from the Business.
That said, the trial judge found, at paragraph 107 of his Reasons that:
… Much of the antagonism between the parties [about the distribution of profits from the Business] may have been avoided if [Ms Samper] had asked as she made these expenditures rather than making them unilaterally.
In light of the above finding, I am not inclined to place weight on this aspect of the wife’s case about the husband’s conduct.
2017 Application in a Case
The wife contends that, as an aspect of the husband’s conduct, she was put to expense in 2017 because the husband removed $125,000 from a business account without her consent, where such funds were required to meet business expenses.
The Application was filed on 2 May 2017. The husband consented to an Order requiring the repayment of the funds to the Business account the next day.
Counsel for the husband submits that the 2017 Consent Orders contained other elements such as the partial distribution of other monies. So much is apparent on the face of the 2017 Orders. However, this does not detract from the fact the wife was put to the task of filing an Application to recover business funds that the husband had removed.
Failure to Provide Proper Disclosure
The wife contends that the husband did not discharge his obligation to provide proper disclosure. She says this required her to issue subpoenas and it occupied time in
cross-examination of the husband at the trial I note paragraphs 132, 133, 138 and 145 of the trial judge’s Reasons in this regard.
Counsel for the husband conceded in his written submissions that the Court found the husband had not discharged his duty of full and frank disclosure. However, he submits that, despite this:
(a)The trial judge did not justify an adjustment in the wife’s favour in accordance with Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338; and
(b)“… any failure to adequately disclose financial matters by the husband played little part in these proceedings and certainly the hearing was not prolonged as a consequence of issues concerning his non-disclosure. In fact, the hearing concluded one day early.”
These arguments are not persuasive because the husband’s non-disclosure occupied time and expense on the part of the wife. In any event, the non-disclosure was material because it limited the Court’s ability to determine the value of the financial benefits accruing to the husband through the operation of his business.
The Husband was Wholly Unsuccessful
The 2020 Orders provided that:
(a)The wife would retain the Business; and
(b)The wife would pay the husband $1,553,005 to achieve an overall equalisation of assets.
At trial, the husband sought to retain the Business, or that it be sold, and for there to be a distribution of 55 percent of the assets to him and 45 percent to the wife.
Given the husband was unsuccessful in respect of both realms of dispute, namely the retention of the Business and overall percentage distribution, I find that he was wholly unsuccessful in the proceedings.
Conclusion in respect to s 117(2A) considerations
For all these reasons, I am of the opinion that there are circumstances which justify the making of an order that the husband pay the wife’s costs of, and incidental to, the substantive proceedings. The question then becomes on what basis such orders should be made.
Should costs be ordered on an indemnity basis?
A useful summary of the law in this respect is contained in the decision of
Rimac & Rimac (No 2)[2022] FedCFamC1F 159 at [24]-[29], which I incorporate into these Reasons but need not repeat.
The wife contends that this case was of an exceptional kind as to warrant that approach. She contends this arises because:
(a)The husband’s “failure to not only accept, but to simply not engage with, the [wife’s] repeated attempts to negotiate a compromise of the proceedings was at least imprudent”;
(b)The husband ought to have known his application for less than 50 percent of the assets, and the retention of the Business and related property, were “doomed to fail”, yet he maintained both positions throughout the proceedings. The wife contends that this provides a basis to presume that the husband maintained the Application for an ulterior motive; and
(c)The allegations as to the wife’s improper retention of company assets was tantamount to fraud without a proper foundation.
In his oral submissions, senior counsel for the wife said that the husband’s failure to make any offer “in and of itself” engages the reasonable discretion to make an indemnity costs order.
Other than the offer made at the Conciliation Conference on 9 May 2016, the husband did not make any settlement offer. Further, he failed to respond to the wife in respect of
the 2016, 2018 and 2019 Offers.
This Court is heavily laden with cases that cannot find time before a judge. This matter was allocated three days of hearing time, leaving aside other case management responsibilities and judgment writing for an outcome that, from the husband’s perspective, could have been achieved in 2016.
For the husband to fail to engage in any settlement discussions from 7 July 2016, when
the 2016 Offer was made, and to have failed to make an offer, is unacceptable.
I am satisfied that this matter reaches the evidentiary standard to justify making an indemnity costs order for the wife’s professional fees, counsel’s fees and other disbursements from 7 July 2016 until the making of the Final Orders, other than the reservation fee for senior counsel. Such fees are controversial within the profession, such that I do not consider it justified to impose such a cost on the husband.
QUANTUM
The wife has set out her costs in Schedule A to her affidavit filed on 19 June 2022 (“Schedule A”).
The husband does not suggest that the hourly rates are excessive, that there has been
over-servicing, that the arithmetic is in error, or that there is any other unreasonableness or error associated with Schedule A.
It is a matter of discretion as to whether I fix a sum of costs, or require that such costs be assessed or agreed.
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permits the Court to order costs in a specific amount. The power to do so is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”; Graham & Squibb (2019) FLC 93-892 at 78,858 [92] citing Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
Counsel for the husband submits that the proceedings were complex and that this weighs against the fixing of a sum. On enquiry, he conceded that the proceedings were straightforward but for the issue of valuation.
The fact that valuation of an entity is disputed does not, of itself, render proceedings complex.
The protracted nature of these proceedings, and the costs already incurred, operate in favour of fixing the sum.
The wife has set out her costs with sufficient specificity as to satisfy me that the sum I will impose is logical, fair and reasonable. I am entitled to take a broad-brush approach to this.
It is my intention that the wife receive her costs of, and incidental to, the substantive proceedings on an indemnity basis from the time of the 2016 Offer until the Final Orders, that is, the sums represented by the following Items in Schedule A:
(a)Professional fees: Items 268 to 1134 inclusive;
(b)Counsel’s fees: Items 1305 to 1325 inclusive; and
(c)Other disbursements: Items 1331 to 1346 inclusive.
I have excluded the costs and disbursements in Schedule A that post-date the Final Orders because they either pertain to:
(a)The implementation of the Final Orders, which is an ordinary incident of the result of the litigation;
(b)The appeal, in which a costs order was made by the Appeal Court; or
(c)The costs Application, to which I am about to turn.
The Order that I have made for costs of, and incidental to, the substantive proceedings is intended to encompass the 2017 Application in a Case. For that reason, there is no need to further consider Order 2 in the wife’s Minute of Orders.
For these Reasons, there will be an order for costs in favour of the wife in the sum of $277,330. Such costs will be payable in 28 days from the date of these Orders.
COSTS of the COSTS APPLICATION
I have considered the financial circumstances of the parties, as set out above.
The husband has been wholly unsuccessful in relation to the substantive Costs Application.
I am of the opinion that this justifies the making of a costs Order.
There is no evidence in respect of the ancillary Costs Application that would establish that such costs should be awarded other than on a party/party basis.
The wife has set out her costs of her ancillary Costs Application in her Costs Notice filed on 17 June 2022 with sufficient specificity as to satisfy me that the sum is logical, fair and reasonable.
For the same reasons as given earlier as to the operation of r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I will award the wife costs on a party/party basis in the fixed sum of $40,144, payable within 28 days from the date of these Orders.
CERTIFICATION OF SENIOR COUNSEL
I will make an order certifying for senior counsel. An indemnity Costs Application is difficult and exceptional. It should not be embarked upon lightly and warrants the assistance of experienced counsel.
For these Reasons given, I make the following orders.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 25 August 2022
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