Scott & Munayallan
[2021] FedCFamC1F 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan [2021] FedCFamC1F 104
File number(s): SYC 59 of 2010 Judgment of: HENDERSON J Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – PROPERTY – Interim property – Where the wife seeks the sum of $100,000 be paid to her by way of interim property distribution – Where the wife has limited financial means and the husband is in sole control of the matrimonial assets – Application granted.
FAMILY LAW – COSTS – Where the wife seeks her costs of four hearing days be paid on an indemnity basis – Where the final hearing listed since February 2021 was not able to commence in relation to the substantive issues due to the husband’s conduct – Application granted – Order for husband to pay wife’s costs on an indemnity basis.
Legislation: Family Law Act 1975 (Cth) s 79, s 117 Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) [1993] FCA 70
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311
Phillips & Hansford (2020) FLC 93-941
Rankin & Rankin (No. 3) [2019] FamCAFC 133
Sfakianakis & Sfakianakis (2019) Fam LR 419
Smith & Fields (third party costs) [2013] FamCA 505
Strahan & Strahan (Interim property orders) (2011) FLC 93-466
Worth & Worth (No. 2) (2019) FLC 93-910
Division: Division 1 First Instance Number of paragraphs: 85 Date of hearing: 30 September 2021 Counsel for the Applicant: Mr Duc Solicitor for the Applicant: Mills Oakley Lawyers The Respondent: Self-represented litigant ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUNAYALLAN
Applicant
AND: MR SCOTT
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The wife’s costs be paid by the husband on an indemnity basis in the sum of $49,820.50 within 14 days of the date of these Orders.
2.The husband pay to the wife the sum of $12,455 being a total of the unpaid costs orders made against the husband in favour of the wife in these proceedings within 14 days of the date of these Orders.
3.The husband pay to the wife the sum of $100,000 by way of interim property distribution within 14 days of the date of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Munayallan & Scott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
The two matters before me are the interim application by the wife Ms Munayallan (“the wife”) for a lump sum payment of monies to fund her litigation and, secondly, an application for payment by the husband, Mr Scott (“the husband”), of her costs of preparation for the final hearing and court appearances commencing Monday, 27 September 2021 to Thursday, 30 September 2021 inclusive on an indemnity basis.
Mr Scott objects to the applications filed by the wife and seeks that I stay the hearing of this matter until an appeal before Justice Austin of orders I made on 13 August 2021 has been determined. There is no date set for this appeal to be heard.
CHRONOLOGY
The matter has been listed for final hearing on property issues since February 2021 for four days.
On 26 July 2021 I joined parenting proceedings to the matter being the wife's application that the current interim orders made by Senior Registrar Campbell, as his Honour then was, on 30 March 2021 that the children spend time with their father on alternate weekends from after school Friday until Sunday afternoon, time during the school holidays and other special occasions continue. Mr Scott’s application is that the orders Justice Berman made on 15 August 2020 whereby the children were to spend time with him from Thursday after school to the commencement of school Monday morning each alternate week be reinstated.
Since I listed this matter for final hearing Mr Scott has filed no less than two applications that I disqualify myself from hearing this matter on the basis of bias which applications I dismissed on 13 August 2021.
On 8 September 2021 Mr Scott filed an appeal from this decision. He did not file a stay.
On 24 September 2021 Mr Scott filed an application for a stay of the final hearing until after the appeal he had filed in relation to the decision I made not to disqualify myself had been heard.
The application for a stay of the final hearing has been, by consent, stood over for hearing to 7 October 2021 when the final hearing is to resume.
The relevant history of the applications filed by Mr Scott and the decisions made are as follows.
The matter was due to commence for final hearing on Monday, 27 September 2021 and as of Friday, 1 October 2021 the matter had not yet commenced to be heard on the substantive issues between the parties which is their entitlement pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) of the matrimonial property.
The matter could not proceed on Monday, Tuesday, Wednesday or Thursday for the following reasons.
On Monday, 27 September 2021 Mr Scott did not appear by way of telephone or Microsoft Teams and the only communication the Court had with him were emails from a person called “Helen Tae” wherein she alleged Mr Scott had had an adverse reaction to a COVID-19 vaccination he had taken the Saturday before this final hearing was due to commence, had been admitted to EE Hospital, had had a suspected heart attack and was too unwell to appear or represent himself at the hearing. A medical certificate was provided from the LL Medical Centre dated 27 September 2021 from a Dr FF, which is as follows:
THIS IS TO CERTIFY THAT
Mr Scott has a medical condition and will be unfit for Court Appearance, Preparation, Work from 27/09/2021 to 30/09/2021 inclusive.
(Emphasis in original)
On 27 September, and in Mr Scott’s absence, I dealt with two groundless reviews he had filed in relation to a Senior Judicial Registrar’s orders concerning service of subpoenae on individuals to give evidence and produce documents at the hearing and subpoenaing of records at various banks which held accounts in the name of companies that the wife asserted were the alter-ego of the husband. I dismissed his reviews.
On the basis of the medical certificate, and in the absence of Mr Scott’s appearance, I stood the substantive matter over to the next day, Tuesday 28 September 2021.
On Tuesday, 28 September 2021 the Court was able to contact Mr Scott by telephone where he confirmed he had attended EE Hospital on Sunday night, that he had a “mild heart attack”, that there were enzymes in his blood indicative of a mild heart attack, that he was to have an angiogram and was to make further appointments with his GP or other medical practitioner, and that he had had an adverse reaction to the COVID-19 inoculation.
On the basis of these somewhat alarming facts I granted leave to the legal representatives for the wife leave to issue subpoenae to the EE Hospital, LL Medical Centre and made orders that those institutions were to provide to the solicitors for the wife all information concerning the medical condition of Mr Scott. I further directed that his general practitioner, whose name he had given to the court on Tuesday, be available to provide evidence in relation to his current medical condition via teams and that Dr FF also be available to give evidence.
I adjourned the matter to Wednesday, 30 September 2021 for the information that the wife's representatives were obtaining to be provided to the Court. On Wednesday Mr Scott could not be contacted via telephone or email despite numerous attempts by the Court to do so and I proceeded to hear evidence from his GP and receive the EE Hospital records and LL Medical Centre notes into evidence.
I marked wife's Exhibit 1 being the notes from LL Medical Centre and wife's Exhibit 2 being the notes from EE Hospital.
I heard submissions from Mr Duc for the wife as to the progress of the matter and the interim orders the wife sought given these turn of events. On reading the LL Medical Centre notes it became apparent that the medical certificate Mr Scott had sent to the Court on 27 September 2021 had been substantially altered, as the medical certificate contained in the files of the LL Medical Centre did not have the words for “court appearance” or “preparation” contained therein and read only:
THIS IS TO CERTIFY THAT
Mr Scott has a medical condition and will be unfit for Work from 27/09/2021 to 30/09/2021 inclusive.
(Emphasis in original)
Further, Mr Scott had seen another doctor at the Practice, Dr GG, who issued a medical certificate to say he would be too unwell to attend court from 27 September 2021 to 1 October 2021, the very four days this matter had been listed for final hearing.
Upon reading of the extensive EE Hospital notes it was apparent Mr Scott presented to the emergency department complaining of symptoms perhaps consistent with an adverse reaction to a COVID-19 vaccination, or perhaps heart issues, but no doctor, registrar or any other person who saw Mr Scott and made notes on his file indicated or implied or stated that he had had either “a mild heart attack” or “elevated enzymes” in his blood consistent with a mild heart attack, this being the description Mr Scott gave to the Court on Tuesday of his current medical condition.
He was advised to go home, rest and take Nurofen for his symptoms and if concerned to see his general practitioner or return to the hospital.
On the basis of this concerning information indicating to the Court that Mr Scott had simply not told the truth on Tuesday 28 September 2021, I made a suite of orders in relation to joining companies and other persons to the litigation who were, on the wife's evidence, involved in concealing from the wife and the Court the true extent of Mr Scott's wealth and made various injunctions against those parties and companies from disposing of the assets that the wife had been able to ascertain were in their possession or control. Included in those orders were Mr M and Ms HH, who had been subpoenaed to attend Court in person to give evidence on Wednesday, 29 September 2021, and who had each failed to attend.
I stood the matter over to Thursday, 30 September 2021 to entertain the wife's application for an interim costs order and an indemnity costs order for the costs thrown away by the antics of the prior three days and the days leading to the preparation of the final hearing. Mr Scott appeared on this occasion and I heard the wife’s application.
I listed the matter on Friday, 1 October 2021 at Mr Scott’s request to permit him to access his personal bank accounts which had been erroneously frozen by his banks and his application was granted.
I stood the matter over to Tuesday, 5 October at 2.15PM for Mr Scott to either provide written or oral submissions in answer to the wife’s two interim applications and provided him with a copy of the transcript of that day, namely 30 September 2021. Mr Scott consented to this course. I indicated I would deliver judgement prior to 7 October 2021 when the final hearing was to resume.
At 11.59PM on Monday 4 October 2021 Mr Scott sent an email to the Court requesting an adjournment of the Tuesday afternoon listing, telling the Court he could not attend as he had another Court appearance. I refused the adjournment.
The wife's case is that the following companies are the alter-ego of Mr Scott who maintains he has nothing to do with the companies. The companies are:
(1)I Pty Ltd trading as JJ Trust;
(2)P Pty Ltd;
(3)DD Pty Ltd;
(4)KK Business; and
(5)CC Pty Ltd.
The wife has been able to ascertain by the filing of subpoenae that a company known as DD Pty Ltd has some $309,542 in its bank account.
The wife had annexed to a tender bundle provided to the Court on Tuesday, 28 September an ASIC search and other company searches which reveal that Ms HH and Mr M are directors and controllers of these companies and that Mr Scott does not appear as a shareholder or director however he has been given authority to deal with and access the bank accounts of each of the above companies.
Justice Berman in his decision of 2 August 2019, Munayallan & Scott [2019] FamCA 549, found that Mr Scott was the alter-ego of at least I Pty Ltd as when Mr M appeared before his Honour and was being questioned about this company, Mr Scott continued to interrupt Mr M’s evidence, provided him with documents and it was apparent Mr Scott, in contrast to Mr M, was well across all aspects of the company and its processes including the other companies I have referred to.
Justice Sackar in the Supreme Court, where Mr Scott has had ongoing litigation for some three years with a Mr Phong, has also found that some of these various companies were the alter-ego of Mr Scott. These findings by other Judges in other proceedings are consistent with the wife’s position in these proceedings and the evidence the wife has relied upon before me supports her contention.
In relation to an interim costs application, the law is clear and is set out in the decision of Strahan & Strahan (Interim property orders) (2011) FLC 93-466 (“Strahan”).
The application before me is based upon my power under section 79 of the Act and that power can be exercised by me until it is exhausted, as their Honours state in Strahan at 85,645:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Factors relevant to me in the exercise of my discretion are:
(1)That in making the interim costs order I do not defeat the other party's claim;
(2)That one party is in control of the assets and the other party is in a disadvantaged position;
(3)That the application made is bone fide and this is part of the consideration that it is in the interests of justice to make the orders sought; and
(4)There must be more than just the fact that the party seeking the interim property order would receive that amount of money after a final hearing.
The financial circumstances of both parties are relevant at this procedural stage as well as at the substantive stage.
As their Honours state in Strahan referring to the decision of Zschokke & Zschokke (1996) FLC 92-693, there must be a need for the funds and the financial circumstances of the parties is an important consideration.
THE EVIDENCE
The wife is on an exceedingly limited income. She works at a preschool and does some accounting work and receives an income of some $500 per week which, together with her parenting payment benefits A & B, enable her to pay for the rent of a modest two-bedroom unit and the entire upkeep not only for herself but her two children amounting to just over $1,000 per week. The husband makes virtually no contribution whatsoever to his children and has not done so since separation.
The wife receives the paltry sum of four dollars per week in child support.
There is close to $2 million held in the Supreme Court of NSW of which Mr Scott has, if not legal ownership, at least beneficial ownership of.
There is clear evidence on bank records from the Commonwealth Bank of Australia and Citibank that Mr Scott removed some $1.3 million from one of the aforementioned companies in June 2021 and placed that money, the wife suspects, in an account in his mother's name, Ms Scott, who has also been joined to these proceedings. The current whereabouts of those monies are unknown.
The wife has, by way of a tracing exercise with the various bank accounts she has been able to subpoena of these companies which she asserts are the alter-ego of the husband, established movement in excess of $10 million over a period of time in these companies.
Mr Scott boasted during the relationship that he was a man of means and he was able to buy property without obtaining a mortgage such was the availability of funds to him and he did so during the marriage.
Mr Scott is in total control of the assets of the marriage and the wife has continued, as was the case during the relationship, to be financially controlled and deprived of access to the wealth of the parties.
In light of the fact there is a fund of money available to satisfy the wife's needs, being an amount of $309,000 in the accounts of DD Pty Ltd , that the matrimonial pool has the potential to be in excess of $4 million, that the wife has a strong case for an adjustment under section 79 of the Act having regard to her role as parent and homemaker and effectively sole parent for many years and a strong case that Mr Scott is the alter-ego of these various companies, that Mr Scott has failed to pay child support or maintain his children to the best of his ability and it is unlikely the wife will receive child support from him and that she seeks $100,000 to continue this litigation at the resumed hearing on 7 October 2021 I find it is just and equitable and otherwise proper to make an interim costs order pursuant to my power under section 79 of the Act.
I will order the husband pay the wife's interim costs in the sum of $100,000 within 14 days of today's date.
In addition, there are some $12,455 of unpaid costs orders that be have been made against Mr Scott in favour of the wife throughout this litigation which he has not paid and I will order those costs orders also be paid in one lump sum.
Going now to the wife's claim for indemnity costs and that the conduct of Mr Scott in the last four days and prior to this has been designed to delay the proceedings and the final disposition and hearing of the wife's application for property orders.
This is not just a claim for the costs thrown away in preparation of the final hearing but also in meeting the unmeritorious review applications filed by Mr Scott of Registrars’ orders relating to subpoenae and service of subpoenae.
My first task under the Act is to determine whether I should exercise my discretion under section 117(2) and make an order for costs. Mr Scott's conduct makes it clear that the usual order that each party bear their own costs is inappropriate for the following reasons.
Mr Scott lodged two separate reviews of orders made by a Senior Judicial Registrar on two dates in relation to subpoenae issues which had no merit whatsoever and the wife was put to the expense of responding to those reviews and was entirely successful in my upholding the Senior Judicial Registrar's decisions and Mr Scott was entirely unsuccessful.
On 24 September 2021, the Friday before the final hearing was to commence, Mr Scott filed a 200 page document which purported to be an affidavit which he had been directed to file on or before 27 August 2021. The wife's legal team was put to significant expense in trawling through the voluminous documents prior to the commencement of the hearing on Monday.
Mr Scott failed to attend court on Monday and forwarded to the Court a medical certificate which, on its face, has been tampered with as it was not the medical certificate contained within the records of the medical centre that issued it.
Mr Scott told the Court he had suffered a “mild heart attack”, that his enzyme levels were high and consistent with a mild heart attack, that this information had been imparted to him from EE Hospital and that he was suffering ill effects of a COVID-19 vaccination which he determined to have administered the Saturday before a final hearing.
The EE Hospital notes do not reveal any of this information, rather that he was making complaints of certain things such as stabbing pains in the chest and pins and needles in his arms and was generally unwell. The ultimate recommendation to him was to go home, rest and take Nurofen for his symptoms. He underwent extensive blood tests, saw multiple doctors and discharged himself from hospital.
Mr Scott did not attend attended Court on Monday or Wednesday. He attended on Tuesday, Thursday and Friday.
Mr Scott attended Court on Tuesday, 28 September 2021 and Thursday, 30 September 2021. On Thursday he again said he was unwell, that he was having pains and chest pains and had a medical appointment and a doctor's appointment but produced no further medical records or information to indicate what the cause of his difficulty was. The material he produced to support his assertion of being too unwell to attend Court on any occasion did not satisfy the Court this was the case and a medical certificate provided by him has been tampered with.
Mr Scott attended Court on Friday, 1 October 2021 at his request as he sought an order from the Court to lift the freezing of his personal accounts by his banks and also agreed to comply with orders to serve certain subpoena and provide details of the parties joined to the proceedings. He did not do so and could not be contacted after he obtained the order he sought from the Court that morning.
The wife’s costs of the four days in Court and in responding to his groundless reviews have been entirely wasted by Mr Scott’s conduct. The wife's affidavit and costs of the preparation for that affidavit will still be relevant for the final hearing as the matter will resume for hearing on 7 October 2021.
The costs claimed by the wife are set out clearly in a costs schedule pursuant to a costs agreement entered into and deal only with the matters I have referred to, that is, preparation for the review of the subpoenae issue, perusal of the husband's lengthy and voluminous affidavit, writing of letters to Mr Scott about service of subpoenas he was ordered to serve in accordance with the Senior Judicial Registrar’s orders, provision of details of parties now joined to the proceedings and for four days’ Court appearances and these costs amount, on an indemnity basis, to $49,820.50.
THE LAW
Going to section 117 of the Act which relates to costs and is as follows:
(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
(g) such other matters as the court considers relevant.
The power to award costs involves a wide exercise of discretion and the breath of that discretion is not limited as was recognised in a matter of Penfold v Penfold (1980) 144 CLR 311 (“Penfold”). The Court need not be satisfied that all the factors under section 117(2A) of the Act have occurred before making a costs order, rather the Court is required to find a justifying circumstance or circumstances as an essential preliminary step before making any costs Order.
There is voluminous authority from the Full Court of the Family Court and in other jurisdictions in relation to costs and in particular in relation to indemnity costs. Decisions such as Kohan & Kohan (1993) FLC 92-340 (“Kohan”) are still good authority in relation to the Court's discretion to award indemnity costs and the factors which may weigh upon a judge's exercise of the discretion to so do.
Four recent decisions of Phillips & Hansford (2020) FLC 93-941 (“Phillips”), Rankin & Rankin (No. 3) [2019] FamCAFC 133 (“Rankin”), Worth & Worth (No. 2) (2019) FLC 93-910 (“Worth”) and Sfakianakis & Sfakianakis (2019) Fam LR 419 (“Sfakianakis”) all deal with the broad discretion of the Court in relation to a costs application. The power is to award costs on an indemnity basis, solicitor/client basis, party/party basis, scale costs, costs as assessed by the Court or a taxation by a Registrar. As always in family law proceedings, each case turns on its particular and unique facts.
The wife seeks her costs on an indemnity basis and such costs are only ordered in exceptional circumstances.
The matters of Kohan and Smith & Fields (third party costs) [2013] FamCA 505 dealing with third party costs are all authority for this proposition. The category of cases in which indemnity costs may be awarded are not closed. Costs on this basis have been ordered in matters where an application is pursued with wilful disregard of known facts or clearly established law, where there has been an imprudent refusal of an offer to compromise, as in the decision of Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive”).
In relation to pursuing an application with wilful disregard to known facts or clearly established law, the decisions of Phillips, Rankin, Worth and Sfakianakis reiterate that indemnity costs may be awarded where the applicant, properly advised, should have known he had no chance of success and where a party persists in what should, on a proper consideration, be seen to be a hopeless case.
This principle was referred to by his Honour Justice French in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) [1993] FCA 70 at [5].
In Worth their Honours quoted from Justice Holden's decision in Munday v Bowman (1997) FLC 92-784 (“Munday”), where the Court drew the following principles relevant to costs at [9]:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e) An imprudent refusal of an offer to compromise.
As their Honours quote in Worth from Sheppard J in Colgate-Palmolive at [17]:
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course …
It is trite to say that the evidentiary onus is upon the wife to satisfy me, using Sheppard J's words, that “the circumstances of the case must be such as to warrant the Court in departing from the usual course”.
The options available to me in determining the cost order to be made are: fixed costs at scale; party/party costs; solicitor/client costs; as assessed in the exercise of my discretion or on an indemnity basis.
As their Honours opine, there is a broad discretion in the making of a costs order.
At the outset, I have formed the view that the usual rule of each party bearing their own costs would not be appropriate for the reasons set out previously.
Going to the factors I must have regard to under section 117(2A) of the Act.
The wife has limited financial means and receives no child support from the husband.
The husband is apparently a man of wealth and has access to significant funds and he has the capacity to meet any costs order that this Court makes.
There have been no less than six costs orders made against him, none of which he has paid to the wife throughout these proceedings.
The wife does not have a grant of legal aid for these proceedings.
The husband’s conduct has caused the wife and her legal team unnecessary work, has wasted the Court’s time and her legal teams’ time, and after four days in Court no substantive evidence has yet been taken about the matters listed for hearing, namely the property dispute between the parties, a child support departure application and the wife’s application the husband be declared a vexatious litigant. That consequence is at the feet of the husband and no other party to the proceedings. The wife has been ready and able to commence the trial on the date it was allocated to commence.
The wife’s legal team, at the expense of the wife, have provided to the Court medical reports and the like about the husband’s medical condition, a matter he should have attended to and failed to do so.
The husband has failed to comply with his obligations for discovery and has resisted discovery at every turn, filing multiple reviews in relation to such issues. On any occasion any judicial officer puts Mr Scott to the test and indicates this matter will be heard and matters will be dealt with he files a review of that decision or, in the case of myself, an appeal and thus far he has not been successful in either the Family Court, as it then was, or the Supreme Court of New South Wales.
Mr Scott has been wholly unsuccessful thus far in his applications before me to adjourn this final hearing or disqualify myself and he has prevented me by his conduct in dealing with the substantive issues before the Court as I am yet to hear any evidence in relation to the substantive property issues.
As his Honour Justice Sheppard says in Colgate-Palmolive, there must be exceptional circumstances in existence “to warrant the Court in departing from the usual course” for costs, being party/party, and I find the husband’s conduct warrants my departure from the usual order and I will make the indemnity costs order sought by the wife.
I order that the wife’s costs in the sum of $49,820.50 be paid by the husband within 14 days of today’s date.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 6 October 2021
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