Seager & Nikoli (No 2)
[2022] FedCFamC1F 736
•27 September 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Seager & Nikoli (No 2) [2022] FedCFamC1F 736
File number(s): SYC 8342 of 2017 Judgment of: SCHONELL J Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – COSTS – Where the applicant sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the respondent’s conduct in the proceedings warranted a costs order being made – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Harris and Harris (1991) FLC 92-254; [1991] FamCA 124
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Pennisi v Pennisi (1997) FLC 92-774; [1997] FamCA 39
Seager & Nikoli [2022] FedCFamC1F 412
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 40 Date of last submissions: 2 September 2022 Place: Sydney Solicitor for the Applicant: Uther Webster & Evans The Respondent: Self-represented litigant ORDERS
SYC 8342 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SEAGER
Applicant
AND: MS NIKOLI
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
27 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The respondent de facto wife pay the applicant de facto husband’s costs assessed in the sum of $15,000, with such sum to be paid within 60 days of the date of the making of this order.
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 Seager & Nikoli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By way of Application in a Proceeding filed 5 July 2022, the applicant de facto husband (“the applicant”) seeks an order that the respondent de facto wife (“the respondent”) pay his costs on various bases, initially on an indemnity costs basis, and alternatively in an amount as ordered or in an amount as assessed. The respondent opposes the application and seeks her own costs, albeit she does not specify an amount.
Some background to the application is necessary to put in context some of the submissions that are made by each of the parties. In that respect, these reasons should be read in conjunction with my reasons delivered in Seager & Nikoli [2022] FedCFamC1F 412 (“Seager & Nikoli”).
The applicant relied upon the following documents:
(1)Application in a Proceeding filed 4 July 2022;
(2)Affidavit of applicant filed 4 July 2022;
(3)Exhibits to the applicant’s affidavit filed 4 July 2022;
(4)Financial Statement of applicant filed 13 July 2022;
(5)Orders and Reasons for Judgment delivered 6 June 2022; and
(6)Written submissions.
The respondent relied upon the following documents:
(1)Application in a Proceeding filed 4 July 2022;
(2)Affidavit of respondent filed 31 July 2022;
(3)Annexures to the respondent’s affidavit filed 31 July 2022;
(4)Financial Statement of respondent filed 1 August 2022;
(5)Orders and Reasons for Judgment delivered 6 June 2022; and
(6)Written submissions.
The applicant seeks costs for the period 16 October 2020 to 6 June 2022. The significance of that date is that it is the date after the parties attended a dispute resolution conference.
I note that I recorded the following in my judgment of Seager & Nikoli:
18.In broad terms, the applicant contended for a property settlement division as to 70% to the respondent and 30% in his favour. The respondent sought to include in the pool the respondent’s defined benefit fund in the payment phase calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”). The respondent for her part contended that there should be an 80% split of the parties’ assets in her favour. The parties were at odds, however, as to what constituted the pool of assets.
19.The parties remarkably seemed to be in broad agreement that the contributions of the parties should be assessed as to 75% to the respondent and 25% to the applicant albeit against different pools. They were apart as to the appropriate adjustment, with the applicant contending that there should be a further 5% adjustment in his favour and the respondent contending that there should be a 5% adjustment in her favour for the various matters under s 90SF(3). As far as the respondent was concerned, she sought an order that would see a payment by her to the applicant of approximately $400,000.
…
24.There has been a complete lack of focus and proportionality brought by the parties in relation to what are relatively straight-forward financial proceedings arising out of their approximately ten-year relationship. Each of the parties’ affidavits contained irrelevant material and involved numerous criticisms of the other party for no apparent purpose.
25.The respondent’s affidavit comprised some 217 paragraphs of which large numbers were ultimately not read in the proceedings. It is little wonder that the respondent’s costs are almost $200,000 given the focus in the affidavit on largely irrelevant matters, which were ultimately conceded to be as such. The applicant’s evidence was not much better, with it also being replete with criticisms of the respondent.
…
49.Much of the evidence in the affidavits was of limited assistance and much of it amounted to broad ranging submissions and criticisms of the other party’s behaviour or conduct, which was irrelevant. Its irrelevancy was highlighted by the absence of cross-examination on many of the assertions, or any submission by each of the parties’ as to its relevance.
…
60.I otherwise note that the parties are significantly at odds in relation to the respective financial and non-financial, parenting and homemaker contributions that they each made during the course of the relationship. The applicant urged that I make credit findings in relation to the evidence of the respondent such that I should ultimately prefer the evidence of the applicant where it is in conflict with that of the respondent.
61There is some force to the applicant’s counsel’s submissions that there were parts of the respondent’s evidence that were unsatisfactory. His written submissions record as follows:
3. The credit of the Wife is impeached to the following extent:
…
b. when challenged on certain events, and decisions of the parties the Wife was confrontational on matters that one would think would not be in dispute, such as the suggestion that taking the position in [City E] was either beneficial for her career, or came with some other benefits;
c.similarly, the wife was reluctant to accept basic uncontroversial propositions, such as that she lived within a reasonable distance from her mother;
d.other matters in her affidavit evidence, was contradicted by oral evidence in cross examination, such as:
i.the suggestion that (in her affidavit at [27]) she had met all living expenses, where it was conceded in cross examination he had met some expenses, including with money from his mother;
ii.the suggestion that (in her affidavit at [104]) that during the period in which the parties were carrying out renovations, the husband did not contribute to the care of the children or assist with household duties, where it was conceded in cross examination that he had in fact contributed to the care of the children.
…
64.It is perhaps emblematic of the distrust and breakdown of the relationship of the parties that the respondent was unable to make concessions in relation to the contributions of the applicant. I am left with the view that the respondent has significantly over-stated her contributions and undervalued the contributions of the applicant.
…
69.The applicant contends that he was in large part the primary carer of the parties’ children in the periods following their birth. The respondent makes little concessions in that respect. I accept some of the criticisms of her evidence as made by the applicant’s counsel. I prefer the applicant’s evidence to that of the respondent in relation to his contributions as a parent during the course of the relationship and find that the respondent has undervalued his contributions while overstating her own. I find that he did make a significant contribution as a parent towards the support of the parties’ children, noting that the respondent was for large periods of time in full-time employment.
70.The parties are likewise at issue in relation to the respective homemaker contributions made by each of the parties and, in that respect, I note that each of the parties made a contribution.
71.The parties are also at issue in relation to the contributions made by the applicant whilst the parties resided in [City E]. It is undoubtedly the case that a significant contribution was made by the respondent in circumstances where she was primarily the party in receipt of income in that period of time, and the parties did have the assistance of paid domestic staff. I do not, however, find that the applicant made no contribution in this period and accept his evidence that he made a significant contribution as a parent during this period of time.
…
84.Taking all of the above matters into account and in particular what I have referred to at [59], [68]–73], [77], and [81]–[82], and assessing the contributions in a holistic way, I am of the view that a proper assessment of the contributions of these parties during the course of this relationship and in the period post-separation is properly determined by a contribution-based finding in favour of the respondent as to 72.5% and in favour of the applicant as to 27.5%. I am persuaded that that the significant contributions of the respondent by way of her initial financial contributions of the [Suburb R] and [Suburb C] property as well as her care of the children in the nearly five years’ post-separation call for a substantial adjustment in her favour.
…
94.Weighing all these matters in the balance, I am satisfied that a modest adjustment in favour of the respondent of 2.5% is called for on the basis of her ongoing care of the children and the modest amount of child support she receives for their care. The result is that the pool of assets will be divided as to 75% to the respondent and 25% to the applicant.
In relation to the application for costs, the applicant contends that the respondent adopted a position almost until the commencement of the hearing that there should be no financial adjustment. For example, he points to the Response to the Initiating Application filed 1 March 2018, contending that there should be no alteration of property interests and the Amended Response to the Initiating Application filed 18 February 2022, some three months or so before the final hearing, which stated that there should be no alteration of property interests.
The applicant also points to various contentions being made by the respondent, recorded in the applicant’s written submissions as follows:
25. Significant caution should be given to the Respondent’s Affidavit filed on 31 July 2022 with respect to contentions about the Applicant’s financial disclosure. The Respondent raised ongoing complaints about the Applicant’s investment decisions during and after the relationship. The Respondent brought a complete lack of proportionality to those issues, best demonstrated by the Balance Sheets contended by the Respondent during the period of her self-representation (A#15 to #17). The Respondent included as assets the Applicant’s interests in companies, totalling $380,000 and added back various sums the pool of assets said to have been paid to the Applicant, totalling $437,409. The Balance Sheet sent by the Respondent to the Court on 9 December 2021can be found at the document marked [“S-7”] (page 77) of the exhibit to the Applicant’s Affidavit. The contended addbacks included amounts of $65,000 said to be “loans to [Mr Seager] during the relationship” and $118,000 said to be “income [Mr Seager] received from mother not applied to renovations”. The Respondent sought an order for expert valuations, and such an order was made preparing the matter for trial on 10 December 2021. The Respondent abandoned her addback claims at trial, and she did not seek any valuation of the Applicant’s interests in property. The addbacks and contended values for the husband’s interests in relevant entities represented 35% of the net assets as determined by the Court at trial.
26. The Applicant’s ability to negotiate with the Respondent and seek to resolve the proceedings was overcome by the complete lack of proportionality taken to these matters by the Respondent. …
27. Throughout the proceedings, the Respondent also refused to make reasonable concessions about the contributions made by the Applicant during the relationship (A#28, S – 7; A#29, [S – 8]), which was a matter of concern to the Trial Judge. The Respondent also asserted that the Applicant had a significant financial resource in the Applicant’s mother and family (A#30, [S – 9]), which led to her issuing a broad, intrusive and erroneous Subpoena to Produce directed to the Applicant’s family accountant and the Applicant’s mother’s bank (A#35, A#37).
28. The Respondent brought a total lack of proportionality to her approach in considering the requirements of the matter for final hearing, proposing to call 14 witnesses in her case, including a lawyer from the father’s firm of lawyers (A#31 – A#34, [S – 10] & [S – 11]). The Respondent’s callover sheets sent to the Court during the proceedings can be found at [S-10] and [S-11] (page 96 and page 111) of the exhibit to the Applicant’s Affidavit. On 19 February 2021 the Applicant filed 10 witness Affidavits, none of which were relied upon at trial.
(Footnote omitted)
There is much force in these submissions about the respondent’s allegations and refusal to make concessions. The applicant also relies on offers of settlement, which were close to the ultimate outcome in the proceedings that are relevant to the issue of costs.
The respondent for her part contends that various proposals of the applicant bore no resemblance to the ultimate outcome in the proceedings, making reference to his Case Outline where he sought an equal division of the parties’ assets. The respondent contends that the applicant refused to make full and frank disclosure, that he did not comply with directions and that he pursued contentions that were ultimately unsuccessful, including in relation to the estate of the respondent’s mother.
Indemnity costs
The applicant seeks an order for indemnity costs.
The authorities make it plain that an order for indemnity costs is not one that is made lightly and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis. In Kohan & Kohan (1993) FLC 92-340, their Honours in the Full Court observed at 79,614:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O. 38 r. 2, the provisions of O. 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O. 38 r. 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370.
Indemnity costs orders are still an exception in this and other jurisdictions. …
Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed as follows at 256–257:
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1. The problem arises in adversary litigation, ie litigation as between parties at arm’s length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority.
2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this court the provisions of O 62, rr 12 and 19, and the Second Schedule to the rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission and Handley JA in Cachia v Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client 88as and when the justice of the case might so require’’. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo:88the categories in which the discretion may be exercised are not closed’’. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp);the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
The category of cases in which a court may make an indemnity costs order are not closed and are not limited to those identified by Shepard J. In Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 at 87,471, the Full Court said:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some '”particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”: per Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
There was nothing exceptional about the circumstances of this matter, particularly when seen against my overall findings and aspects of the case brought by each of the parties in which they were unsuccessful. I am not satisfied this unexceptional case warrants an order for indemnity costs.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as an exceptional case, special circumstances or a clear case are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the relative subsections in s 117(2A).
(a) The financial circumstances of each party to the proceedings
Each of the parties has sworn a financial statement in the application. I further note that the consequence of the financial orders were that the property of the parties was divided as to 25% to the applicant and 75% to the respondent. The respondent is in a clearly more superior financial position to that of the applicant, however, by no means could each party be described as wealthy.
The consequence of the litigation have impacted considerably on each of the parties. That said, impecuniosity is not a basis for not making a costs order.
(b) Whether the parties are in receipt of legal aid
Not relevant.
(c) The conduct of the parties to the proceedings
Each party contends that the other party’s conduct is relevant to the granting of a costs order.
What is relevant is conduct of a party, which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in relation to disclosure.
I have had regard to the conduct of both parties and in particular, that each made contentions that were ultimately unsuccessful at hearing. However, on balance I am of the view that there are matters arising out of the respondent’s conduct of the litigation that are such as to give rise to consideration of a costs order.
The respondent made a series of allegations that were never pursued. On numerous occasions throughout the litigation, the respondent repeatedly asserted that the applicant had failed to comply with his obligations of disclosure. Notwithstanding such contention being levelled on numerous occasions as referred to in the applicant’s submissions, a failure to disclose was not established. The respondent also made numerous assertions in relation to family violence matters. This claim was abandoned in its entirety by the time of the final hearing. In a callover information document prepared by the respondent in March 2021, she made allegations against the applicant’s solicitors. In that respect, I note she contended the following:
16. The Applicant’s lawyers do not appear to operate within the framework of the Family Federal Circuit Court Rules and Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015. They have been dishonest to the Court, third parties to the case and to me. …
(Affidavit of applicant, Exhibit S-10)
It is no excuse that the respondent may have at the time of preparation of that document been unrepresented. It is an allegation that had no foundation and is one that should never have been made.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The financial proceedings required a hearing and judgment. It could not be said that the proceedings were necessitated by a failure to comply with a court order. They were necessitated by the parties’ failure to compromise and reach agreement.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 Fam LR 31).
Neither party was wholly unsuccessful.
(f) Whether any party has made an offer in writing
The applicant contends that he made various offers in writing that should be considered in the context overall of the proceedings.
In that respect the Full Court in Pennisi v Pennisi (1997) FLC 92-774 at 84,547 held:
We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer.
In Harris and Harris (1991) FLC 92-254, the then Family Court of Australia awarded the wife exactly the amount which she had been offered to settle for. The Full Court agreed that the trial judge was within the limits of the proper exercise of his jurisdiction to order costs.
I am not satisfied that the offers of settlement at the time that they were made and the issues in dispute are such that that is a relevant consideration in my determination.
(g) Any other matter the Court considers relevant
There is no other relevant matter.
Having regard to the above matters, I am of the view that there are circumstances that warrant the making of a costs order. In that respect, I refer to the matters I have referred to earlier about the respondent’s conduct of the proceedings in preparing an affidavit, which made allegations of family violence that were abandoned, making allegations of non-disclosure that were not established and in particular, seeking orders that saw no adjustment for nearly four years only to substantially amend the relief on the eve of the hearing. Such an approach is inconsistent with the overarching purpose of the family law practice and procedure. Conducting litigation in such a fashion only leads to an increase in costs for both parties.
The Rules and authorities make plain that I can fix an amount for costs. As McClelland DCJ observed in Pascoe & Larsen (No 2) [2022] FedCFamC1A 126:
27.Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
28.In Stoian v Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 when referring to r 19.18 of the now repealed Family Law Rules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 at [9]. Those principles include:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;…
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;…
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;…
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;…
iv.the gross sum “can only be fixed broadly having regard to the information before the Court”;…
(Citations omitted)
29.Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
I am satisfied that it is just that an order for costs should be made but not in the quantum as sought by the applicant. I am of the view that it would be just that there be an order made that the respondent pay the sum of $15,000 by way of costs.
I will order that the respondent pay that sum within 60 days.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 27 September 2022
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