SELWOOD & SELWOOD

[2016] FamCA 103

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD [2016] FamCA 103

FAMILY LAW – COSTS – between parties – where consideration is given to s 117 of the Family Law Act 1975 (Cth) and the method of calculation of costs – where significant factors in determining the application are the conduct of the husband in relation to discovery and admission of facts – where the husband has failed to provide a prompt and honest response to requests or comply the rules or previous orders of the Court – where specific consideration is given to the wife’s offer to settle – where the Court is not satisfied that the wife has established a basis upon which indemnity costs should be paid – where the husband was not wholly unsuccessful in relation to the children’s issues - where it is ordered that the husband pay part of the wife’s costs of property proceedings.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 1.04, 1.08, 19.08, 19.18, 19.50

Penfold v Penfold (1980) 144 CLR 311
Prantage & Prantage (2013) FLC 93-544

APPLICANT: Ms Selwood

RESPONDENT: Mr Selwood

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 26 February 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 14 October 2014 and
23 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: DS Family Law

Orders upon noting that the following orders do not discharge or vary any previous costs orders

1. That the husband pay the wife’s costs of and incidental to the proceedings fixed in the sum of ONE HUNDRED AND EIGHTY-EIGHT THOUSAND FIVE HUNDRED AND EIGHT DOLLARS [$188,508.00].

2. Any monies retained or invested on behalf of the husband pursuant to orders of this Court are released to the solicitor for the wife to the extent necessary to pay the amount of ONE HUNDRED AND EIGHTY-EIGHT THOUSAND FIVE HUNDRED AND EIGHT DOLLARS [$188,508.00].

3. That payment of the amount and any steps necessary to recover the amount from the funds held by or on behalf of the husband be stayed until fourteen [14] days after delivery of the Full Court of the Family Court of Australia judgment in relation to the appeal from the property settlement orders.

4. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Counsel both in respect of the proceedings and the application for costs

5. Liberty to apply for consequential orders following delivery of the Full Court of the Family Court of Australia judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 359  of 2010

Ms Selwood

Applicant

And

Mr Selwood

Respondent

REASONS FOR JUDGMENT

introduction

1. The wife filed an Application in a Case on 15 August 2014 wherein she sought:

   4.That the Husband pay the Wife’s costs from commencement of the proceedings of and incidental to the proceedings at such sum as ordered by the Court on an indemnity basis from 17 September 2012.

   5.That until such time as the costs payable by the Husband (if any) to the Wife are determined by the Court both as to entitlement and sum of $300,000 of the funds payable to the Husband pursuant to Order 23(d)(iv) of the Judgement (sic) remain held in the parties (sic) converyancer’s (sic) trust account until further Order or agreement in writing for payment out to the husband.

   6.That the Husband pay the Wife’s costs of and incidental to this Application on an indemnity basis.

2. On the 5 September 2014 the husband filed a response to the application seeking that the wife’s application filed on 15 August 2014 be dismissed and inter alia “That each party bear their own legal costs in relation to the substantive proceedings in DNC 359/2010”.

Summary of relevant background

1. On 18 July 2014 I delivered judgment in proceedings between the parties concerning financial and children’s matters.

2. The proceedings originally commenced when the wife filed an Initiating Application seeking property settlement orders in the Federal Magistrates Court of Australia (as it then was) in August 2010.  Subsequently, the husband sought both property settlement orders and parenting orders in relation to the children of the marriage.

3. The husband’s parents were given leave to intervene and the proceedings were transferred from the Federal Magistrates Court (as it then was) to the Family Court of Australia in May 2011.

4. The trial commenced in Darwin in July 2012 and proceeded for five days.  The interveners were then released when orders were made by consent for payments to the interveners.  (The order of 13 July 2012).

5. The part heard trial was then adjourned to September 2012 and thereafter continued for another five days.  The matter was adjourned due to difficulties concerning the completion of the evidence and resumed on 3 December 2012 and continued on 21 and 22 January 2013, when it was adjourned to 22 April 2013.

6. Following further interim hearings and interim orders, the matter resumed part-heard on 22 and 23 April 2013 with final submissions on 24 April 2013 when judgment was reserved.  The matter was again reopened and further hearings continued on 13, 14 and 15 May 2014 when final submissions were again heard and judgment again reserved.

7. As previously indicated the judgment was delivered on 18 July 2014.  Detailed orders were made in relation to children’s matters and final property settlement orders.

8. An order was also made “that failing agreement the question of costs is reserved to a date to be fixed”.

9. Following the delivery of my judgment the husband filed a Notice of Appeal on 14 August 2014.  Subsequently, on 16 April 2015 the wife filed a Notice of Cross-Appeal.  At the Full Court hearing on 16 April 2015 judgment was reserved and other orders made by consent as follows:

   AND UPON judgment otherwise being reserved,
   IT IS ORDERED BY CONSENT:

   (1)The time for the respondent to file a notice of cross-appeal be extended to 16 April 2015.

   (2)The appeal be allowed in relation to Ground 13 as contained in the amended notice of appeal filed on 20 February 2015.

   (3)Orders 8, 9, 11 and 12 made by the Honourable Justice Dawe on 18 July 2014 be set aside.

   (4)       In lieu of those orders the following orders be made:

   (a)That each parent be permitted to take the children on holidays interstate or overseas during the time the children spend with that parent PROVIDED THAT:

   (i)Thirty [30] days’ written notice is provided to the other parent;

   (ii)The time does not conflict with a period of special significance in accordance with paragraph 4 of the orders made by the Honourable Justice Dawe on 18 July 2014;

   (iii)The parent give the other parent a written itinerary containing the dates of departure and return, and the address and telephone number of the places where the children shall be staying during the holiday;

   (b)The father not permit or allow the children to attend any full contact martial arts activities without the mother’s prior written consent.

   (5)The cross-appeal filed 16 April 2015 be allowed in relation to Ground 1 to the extent of Orders 3 and 4 of these orders and is otherwise dismissed.

   (6)The appeal be allowed in relation to Ground 12 as contained in the amended notice of appeal filed 20 on February 2015.

   (7)Order 20 of the orders made by the Honourable Justice Dawe on 18 July 2014 be set aside.

   (8)       In lieu of that order it is ordered:

   (a)That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband shall provide child support to the wife for the benefit of the children, [B], born … 1999 and [C], born … 2001 (in addition to the periodic amounts as assessed by the Child Support Agency from time to time) until the children attain the age of 18 years or complete their secondary school whichever is the latter by way of payment of one half of:

   (i)All extra curricula activities undertaken by the children;

   (ii)All school fees; and

   (iii)Medical expenses for the children.

   (b)That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the wife shall provide child support to the husband for the benefit of the children, [B], born … 1999 and [C], born … 2001 (in addition to the periodic amounts as assessed by the Child Support Agency from time to time) until the children attain the age of 18 years or complete their secondary school whichever is the latter by way of payment of one half of:

   (i)All extra curricula activities undertaken by the children;

   (ii)All school fees; and

   (iii)Medical expenses for the children.

   IT IS NOTED that the effect of Order 6, 7 and 8 of these orders renders nugatory the order for a permanent stay made by the Honourable Justice Dawe in relation to any current child support assessment on 9 September 2014.

   IT IS NOTED that the parties have liberty to apply to the trial judge, if necessary, in relation to the orders made by the Honourable Justice Dawe on 15 April 2013 and the order made on 9 September 2014.”

10. The Notice of Appeal filed by the husband indicated that he was appealing the property settlement orders, being paragraphs 22 to 28 inclusive of the orders for property settlement made on 18 July 2014.  Judgment in relation to those significant matters has not yet been delivered by the Full Court.

Hearing in relation to costs application

1. The wife’s costs application came before me on 9 September 2014.  On that date the wife’s application for costs for the property settlement proceedings was adjourned to 14 October 2014 with the husband directed to file and serve any response or affidavit by 4 pm on 26 September 2014.

2. On 14 October 2014, further submissions were heard in relation to the question of costs.  An order was made that pending the determination of the appeal, paragraphs 23 (a), (b) and (d) and paragraph 28 of the orders of 18 July 2014 were stayed.  The Court also ordered:

   (2)The husband and wife each receive ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000] from the proceeds of sale of the properties located at [L Street, Suburb M], in the Northern Territory and [N Street, Suburb P] in the Northern Territory.

   (3)The monies referred to in paragraph (2) be placed and retained in interest bearing trust accounts in the names of each of the respective solicitors for the husband and wife pending further order.

   (4)The balance of the proceeds of sale be deposited into and retained in an interest bearing account in the joint names of the parties pending further order.

3. On 11 December 2014 further ancillary orders were made in relation to the sale of one of the properties.  An order was made “no order as to costs” in relation to that part of the proceedings.

4. Following further interim proceedings an order was made on 23 April 2015 by consent discharging paragraph 3 of the orders made on 14 October 2014.

5. Following a further Application in a Case being filed by the wife in June 2015 an order was made on 29 July 2015 which discharged the order staying the application of paragraph 23(d)(i) of the order of 18 July 2014.  On that occasion an order was made in relation to the costs of that part of the proceedings. 

6. The question of whether a party has been wholly unsuccessful or not and other factors to be dealt with under s117 when considering an order for costs may change upon the delivery of the appeal judgment. However, since a considerable time has passed since the appeal was heard in April 2015, it is now appropriate to provide this decision in relation to the costs application.

The Law

1. Section 117 of Family Law Act 1975 (Cth) (“the Act”) provides:

SECT 117

Costs

(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, 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) and (5) 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.

…

1. Rules 19.18 (1), (2) and (3) deal with the method of calculating costs:

RULE 19.18

Method of calculation of costs

(1)The court may order that a party is entitled to costs:

(a)of a specific amount;

(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

(c)to be calculated in accordance with the method stated in the order; or

(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

Example: For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

(2)If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.

(3)In making an order under subrule (1), the court may consider:

(a)the importance, complexity or difficulty of the issues;

(b)the reasonableness of each party's behaviour in the case;

(c)the rates ordinarily payable to lawyers in comparable cases;

(d)whether a lawyer's conduct has been improper or unreasonable;

(e)the time properly spent on the case, or in complying with pre-action procedures; and

(f)expenses properly paid or payable

1. The well-known authority in relation to costs Penfold v Penfold (1980) 144 CLR 311 contains paragraphs 315 to 316:

   It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.

2. The provisions of s 117 (2A) do not list matters in any order of significance. A finding in relation to one of the matters may be sufficient. The Court has a wide discretion.

3. In the matter of Prantage & Prantage (2013) FLC 93-544, the Full Court of the Family Court of Australia considered an appeal from an order for costs. At the commencement of the judgment of Justice Thackray and Justice Ryan it is said that the parties “…have been involved in protracted and ruinously expensive litigation concerning their two children and settlement of their property.”  A similar statement could be applied to these proceedings.

RULE 1.04

Main purpose of Rules

The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

RULE 1.08

Responsibility of parties and lawyers in achieving the main purpose

(1)Each party has a responsibility to promote and achieve the main purpose, including:

(a)ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;

(b)complying with the duty of disclosure (see rule 13.01);

(c)ensuring readiness for court events;

(d)providing realistic estimates of the length of hearings or trials;

(e)complying with time limits;

(f)giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;

(g)assisting the just, timely and cost-effective disposal of cases;

(h)identifying the issues genuinely in dispute in a case;

(i)being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;

(j)limiting evidence, including cross-examination, to that which is relevant and necessary;

(k)being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and

(l)complying with these Rules and any orders.

(2)A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).

Note: The court recognises that a lawyer acts on a party's instructions and may be unable to establish whether those instructions are correct.

(3)A lawyer attending a court event for a party must:

(a)be familiar with the case; and

(b)be authorised to deal with any issue likely to arise.

Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).

Rule 19.08 (3)

Order for costs

…

(3)A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

Note 1: The court may make an order for costs on its own initiative (see rule 1.10).

Note 2: A party may apply for an order for costs within 28 days after the filing of a notice of discontinuance by the other party (see subrule 10.11(4)).

Note 3: A party may apply for an extension of time to make an application (see rule 1.14).

Note 4: For costs orders related to appeals, see Part 22.10.

…

1. In the matter of Prantage & Prantage (Supra) the Full Court gave detailed consideration to the law in relation to costs on an indemnity basis.  In particular the following paragraphs are relevant:

The settled law relating to indemnity costs

76.The law relating to indemnity costs has been well established in this jurisdiction for many years, a fact the trial Judge himself properly recognised. 

77.This Court recognised in Kohan (supra) that there is nothing in the Act which inhibits the making of an order for indemnity costs. However, while acknowledging there is a discretion “in an appropriate case” to make an order for indemnity costs, the Full Court also said, at 79,605:

it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.

78.The Full Court, when re-exercising the trial Judge’s discretion in Kohan, also said, at 79,615:

When considering what is just in this case, one must bear in mind that a party who enters into a costs agreement should be warned and must anticipate in this jurisdiction that each party might well have to bear his or her own costs, and that even if an order for party and party costs is made, the difference between party and party costs and costs payable under a costs agreement may consume all, or a substantial part, of the property order. In this particular case, the wife changed her solicitors in August 1990. It must then have been apparent to her, or at least to her new solicitors, that this might become drawn out litigation and that a rate of costs which amounted to three times the scale, exposed the wife to great risks. If she was willing to assume these risks, it does not seem just to saddle the husband with them. If they were not explained to her, she might have her own remedies.

79.At the time Kohan was decided, there was no mention of indemnity costs in the Rules.  This is no longer the case, as will be seen from our recital of the Rules earlier.  It will also be noted that the requirement for the Court to be informed of the terms of the relevant costs agreement has now been enshrined in the Rules.  Notwithstanding this formal recognition of indemnity costs, this Court and trial Judges in this jurisdiction have routinely followed Kohan in holding that indemnity costs orders are to be seen as “a very great departure from the normal standard”.  We consider citation of authority to this effect would be otiose, so well accepted is the proposition.

…

94.We recognise that the Rules now expressly refer to orders for costs on an indemnity basis.  We recognise also that the rules in this Court are not precisely the same as those in other courts; however, there is nothing in the Rules which indicates that the fundamental principle applied in other jurisdictions should not also be applied in this jurisdiction.  Indeed rule 19.18 makes clear that the “default” position is that costs are awarded on a party/party basis.

95.As we have pointed out, the “usual rule” relating to the basis upon which costs are ordered in this jurisdiction is well entrenched.  We consider it would be most unsettling if we purported to depart from the existing practice.  Furthermore, we would not consider it desirable to do so, essentially for the reasons given by Cooper and Merkel JJ in Re Wilcox (supra). 

96.In particular, we respectfully agree with Cooper and Merkel JJ that there are “two seemingly irreconcilable objectives” at stake.  Placing great emphasis on the importance of one objective, namely “relieving a successful litigant from the burden of costs which that litigant should not have been required to incur” will inevitably lead to insufficient emphasis being placed on the importance of the other objective of “protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis”. 

97.In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis. 

98.With respect to the trial Judge, we are not convinced that there is a great deal of difference between current “commercial realities” and those prevailing at the time Kohan was decided.  It should be noted that the costs agreement in Kohan provided for a rate of payment three times in excess of the scale.  However, even if there have been changes in the market place for legal services, we are not persuaded this should have any impact on the application of the “usual rule”, which seeks to balance competing public policy considerations.”

…

112.Putting aside for the moment s 117AB, it will be seen from our earlier discussion that the Act provides for costs to be awarded at the discretion of the court, subject to a general rule that each party “shall bear his or her own costs”. The general rule gives way when consideration of the factors in s 117(2A) is seen to justify an order for costs. The question to be determined is “whether the overall circumstances justify the making of an order for costs”

(I & I (No. 2) (1995) FLC 92-625 at 82,277).

Discussion and findings

1. Consideration of s 117 (2A):

(a)      the financial circumstances of each of the parties to the proceedings;

1. The financial circumstances of the parties are referred to in the detailed judgment.  In particular the Court accepted the evidence of the wife in relation to her financial circumstances as set out in her evidence before the Court.  However, the financial circumstances of the husband were, to a certain extent, left undecided because of the unreliable evidence given by the husband, the omissions and inaccuracies found.

(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;

1. Neither of the parties to these proceedings has been in receipt of any legal aid.

(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;

1. As indicated in the judgment findings were made that a considerable part of the evidence provided on behalf of the wife was not challenged.

2. Findings were also made in relation to the husband calling into question the evidence he provided.  As is indicated in the judgment there were findings that the husband had used funds and had failed to account for a large amount of funds.

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. As indicated in paragraph 205 of the judgment the husband’s failure to disclose his assets and financial resources was a significant factor.

2. Although orders were made by way of interim orders for financial arrangements, further proceedings were necessitated on an interim basis because the husband failed to comply with those orders.

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

1. The original proceedings commenced by the wife by initiating application sought orders for “an alteration of property interest allocating to the wife 70%t and to the husband 30%”. 

2. The husband in his response sought orders in relation to equal shared parental responsibility and that the children live with each parent on a week about basis.  His property settlement orders sought were expressed simply as “just and equitable distribution of the matrimonial property as the Court deems appropriate”.

3. The orders sought in relation to the children at part of the trial in April 2013 were detailed but included that the parties have equal shared parental responsibility and that the children live with the husband from after school on Friday until before school the following Thursday each alternate week and on after school on Thursday until before school on Friday in the second week.  Otherwise, the children were to live with the wife and there were specific orders sought in relation to school holidays and travel arrangements.

4. The final property settlement orders sought by the wife included that she receive the O Street, Suburb I property, the L Street, Suburb M property, the N Street, Suburb P property and the prestige motor vehicle.

5. The husband has been wholly unsuccessful in resisting many of the significant matters put to the Court by the wife, however, this is not the same as saying that the husband 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;

1. The wife’s solicitors filed material which indicated that the wife made an offer of settlement on 17 September 2012 which was strikingly similar to the amount she was ordered to receive following the Court Order of 18 July 2014.

2. On 30 October 2012 the wife made a second offer to settle, but sought a further $200,000 which was more than the sum in the final order.

3. The wife’s counsel refers to offers to settle by the husband including an offer made by the husband in September 2014 of approximately $608,000 which was well under the amount received by the wife at the trial.

4. The offer by the wife made in September 2012 is a significant matter when considering any orders for costs.

(g)      such other matters as the court considers relevant.

1. It is submitted on behalf of the wife that in relation to children’s issues there were no witnesses called, save the husband and wife.  Significantly, however, the orders that relate to the children could not be said to indicate that the husband was wholly unsuccessful nor that the wife was wholly unsuccessful.

2. Much of the evidence given at the trial and preparing for the trial related to financial issues and in particular, the question of disclosure and the reliability of the husband’s evidence concerning his finances.

3. Counsel for the wife referred to specific interim applications for orders concerning disclosure, injunctions and interim child support orders, sole occupation of premises and sale of properties, as well as interim children’s orders.

4. Overall in many of the interim matters the wife was successful.  It is not the case however that in each of the interim matters the husband was wholly unsuccessful.

Conclusion

1. I am satisfied that, as is evident from the reasons for judgment given in July 2014, the significant factors in determining this costs application are the conduct of the husband in relation to discovery, admission of facts and the limited production of documents.  Much of the costs of the wife have been incurred because of the failure of the husband to provide a prompt and honest response to requests or to comply with the rules or previous orders of the Court.

2. I am not able to find that the husband has been wholly unsuccessful in the proceedings, however, the husband has been unsuccessful in resisting the orders sought by the wife in financial matters.

3. It is a significant matter that the wife made an offer to settle the proceedings on terms similar to those she obtained after a lengthy, costly final hearing.

4. Although the wife was successful in obtaining significant orders in relation to the children attending fight nights the husband was not wholly unsuccessful in relation to other children’s issues.  The children’s matters did not form a substantial part of the preparation for the trial, nor the trial itself.  It would be fair, just and equitable to allocate approximately 20 per cent of the costs incurred by the wife to the children’s issues.

5. Notwithstanding, that the Court finds that the husband’s behaviour, failure to disclose relevant matters and his unreliable evidence are significant factors, I am not satisfied that the wife has established a basis upon which indemnity costs should be paid.  I also take into account in determining the indemnity costs issue the significant hourly rate ($500) which the wife agreed to pay her solicitor pursuant to the costs agreement signed by her in July 2010.

6. I am satisfied however that the counsel fees charged for the work done and the rate at which counsel fees were charged (counsel fees $18,150 and $17,600) are both reasonable and appropriate taking into account the complexity of the matter.

7. The disbursements, $52,758.43, incurred by the wife and now claimed as part of the costs order are reasonable and should be included in the final amount.

8. The wife is seeking to recover the sum of $242,000 for costs incurred since 30 March 2012.  As previously indicated this is based upon the rate of $500 per hour and include costs in relation to children’s matters.

9. This is a matter which requires the Court to reduce the expense delay and further aggravation which is likely to be experienced by an assessment of the costs by a Registrar on the scale set. I am satisfied that it is just and equitable and in accordance with the Act and rules to fix a sum to be paid.

10. If the sum of $242,000 is reduced by 20 per cent (children’s issues) then the costs incurred by the wife on an indemnity basis amount to $193,600.

11. Taking into account the scale of costs payable pursuant to the rules and the passage of time from the offer in September 2012 and to the conclusion of the trial and the hearing of the costs application it is appropriate to fix an amount of $100,000 for the solicitor’s fees to be paid by the husband. 

12. The total amount therefore that is to be paid by the husband (taking into account all of the factors in s117 and the rules) is $100,000 for solicitors’ fees, plus disbursements of $52,758.43 and counsel fees of $18,150 and $17,600, making a total of $188,508.

13. The appeal remains to be determined and therefore any order which is made in relation to costs needs to take that into account.

14. For the above reasons I make the orders as set out at the commencement of these reasons. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 26 February 2016.

Associate: 

Date:  26 February 2016