Stella & Stella (No 3)
[2024] FedCFamC1F 766
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stella & Stella (No 3) [2024] FedCFamC1F 766
File number(s): SYC 2525 of 2021 Judgment of: STRUM J Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – COSTS – Where, as a result of a slip, incorrect final orders were published –Where the wife sought to rely on the incorrect orders and filed an Enforcement Application – Where the wife must have been aware of the slip – Where the husband belatedly filed an Application in a Proceeding to have the slip corrected – Where the wife belatedly consented to an amendment to the orders to correct the slip and withdrew her Enforcement Application – Where the husband seeks indemnity costs against the wife in relation to her Enforcement Application and his Application in a Proceeding to correct the slip – Consideration of s 117(2A) Family Law Act 1975 (Cth) factors – Where the Court is not satisfied that a costs order should be made. Legislation: Family Law Act 1975 (Cth) s 79 and s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(h) and r 12.17)
Cases cited: Collins & Collins (1985) FLC 91-603; [1985] FamCA 15
Hatton v Harris [1892] AC 547
Keighley & Keighley [2023] FedCFamC1A 146
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Vadisanis & Vadisanis [2015] FamCAFC 180; (2015) FLC 93-671
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 3 October 2024 (Heard on the papers) Place: Melbourne Solicitor for the Applicant: Delaney Lawyers Solicitor for the Respondent: York Law ORDERS
SYC 2525 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STELLA
Applicant
AND: MS STELLA
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
12 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The husband’s costs application contained in his submissions filed 19 September 2024, pursuant to Order 3 of the Orders made by consent on 29 August 2024, be dismissed.
2.The wife’s costs application contained in her submissions filed 3 October 2024, pursuant to Order 3 of the said Orders, be dismissed.
3.There be no orders as to costs as between the husband and the wife and each of them bear their own costs, including:
(a)In the case of the wife, the costs of and incidental to her Enforcement Application filed 14 May 2024; and
(b)In the case of the husband, the costs of and incidental to his Application in a Proceeding filed 5 June 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
On 15 December 2023, I delivered reasons for judgment and made final orders (“the December 2023 Orders”) for the alteration of property interests between the husband and the wife, pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
Pursuant to Order 4 of the December 2023 Orders, the wife was entitled to a number of specific items of personal property contained in Annexure “A” to those Orders. There was no appeal from the December 2023 Orders, nor was there any application in relation to Order 4 for some five months thereafter.
On 14 May 2024, the wife filed an Enforcement Application seeking a writ of possession in respect of the items of property contained in Annexure “A” to the December 2023 Orders (the “Enforcement Application”).
Thereafter, on 5 June 2024, the husband filed an Application in a Proceeding in which he sought orders pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) that Order 4 of the December 2023 Orders be set aside or varied by reason of a slip. For reasons that are not apparent, that Application was not sealed by the Court until 29 August 2024.
On 16 July 2024, I made orders that husband’s Application in a Proceeding be listed before me for mention on 3 September 2024 and for the filing of documents therefor.
On 29 August 2024, orders were made by consent in Chambers dismissing the wife’s Enforcement Application; setting aside Order 4 of the December 2023 Orders; and providing for the filing of any submissions as to the costs thereof. The Orders did not provide for, nor did either party thereafter seek, replies (whether in writing or orally) to the submission of the other party.
The husband now seeks that the wife pay his costs of, and incidental to, his 5 June 2024 Application in a Proceeding on an indemnity basis, fixed in the sum of $16,437 or, in the alternative, as agreed or assessed. The wife opposes the husband’s costs application and, in turn, seeks costs in relation to his costs application, fixed in the sum of $3,300.
Both of the parties have filed written submissions in support of the costs orders sought by them, which I have read and considered.
BACKGROUND
The substantive proceedings were commenced by the wife on 9 April 2021 and listed for final hearing before me for four days, commencing 5 June 2023.
In the wife’s Case Outline filed 1 June 2023, she set out the final orders sought by her. Of particular relevance, for present purposes, was Order 4, which referred to the list of items of personal property contained in the Annexure to her Case Outline, that she sought to retain. This list of items was as follows:
(a)Designer wall lamps;
(b)Designer standing lamp;
(c)Professional photographs;
(d)Art hanging in internal stairwell;
(e)Photography art hanging in Mr C's bedroom;
(f)Art stored in Attic;
(g)Personal suitcases stored in attic;
(h)Trolley in Mr C's bedroom;
(i)Designer table in ensuite;
(j)Designer chairs;
(k)Designer armchair stored in attic;
(l)Wife's personal clothing that remained stored in closet in Ms D's bedroom;
(m)Ms D's clothing and personal items in her bedroom;
(n)Mr C's clothing and personal items in his bedroom;
(o)Mr B's clothing and personal items in his bedroom;
(p)All personal sporting gear and equipment in attic and garage belonging to the Wife and children;
(q)Wife's personal collection of designer ceramics and art objects that remained on shelves in living room;
(r)Kitchen appliance (birthday gift from Ms J);
(s)All wife's personal belongings stored in garage, including chairs and table;
(t)Mr C's personal sporting equipment in garage;
(u)Ornament beside bbq; and
(v)Decorative pieces on shelves in lounge room.
The husband deposes in his Affidavit filed 5 June 2024 in support of his Application in a Proceeding (“the husband’s Affidavit”) at [8] that, during the final hearing, negotiations took place between the parties’ respective solicitors in relation to this list of items. After ongoing negotiations, the husband and wife reached an agreement that provided for the husband to make available for collection by the wife or her agent the following:
(a)Professional photographs;
(b)Art hanging in internal stairwell;
(c)Trolley in Mr C’s bedroom;
(d)Designer table in ensuite;
(e)Designer chairs;
(f)Kitchen appliance (birthday gift from Ms J), if found;
(g)Chairs and table;
(h)the parties’ child Mr C’s personal sporting equipment in garage;
(i)Decorative pieces on shelves in lounge room.
Orders by consent were made to this effect on 8 June 2023, being the last day of the trial, and judgment was otherwise reserved (“the June 2023 Orders”).
Both parties agree that, following the June 2023 Orders, the wife collected some of the items of property, however they disagree on the date that this occurred: in the husband’s Affidavit, he deposes at [14] that this occurred in 2023, whereas the wife deposes at [15] of her Affidavit filed 14 May 2024 in support of her Enforcement Application (“the wife’s Affidavit”) that it occurred in 2024 (sic). This difference in dates, whilst confusing, is ultimately immaterial to my decision.
The wife further deposes at [15] and [16] that the husband did not allow her access to the former matrimonial home at E Street, Suburb F (“the Suburb F property”) but, rather, that he left the items of property on the kerb for her to collect. Order 2 of the June 2023 Orders provided that:
(a)within three days, the wife was to nominate three dates and times during the weekdays and during work hours for her or her agent to collect the items;
(b)within three days thereafter, the husband was to choose one of the dates nominated by the wife; and
(c)if the husband failed, omitted or neglected to choose one of those dates, the wife was to do so and that was to be the date and time when the items were to be collected.
The wife further contends that the items made available by the husband did not include all of the items listed in the June 2023 Orders or any of the items listed in the December 2023 Orders; however, she does not specify which items were missing. The issue of which item(s) were missing is perhaps partially illuminated by the husband’s Affidavit at [15], in which he deposes that he was unable to locate the kitchen appliance.
When the December 2023 Orders were made, and my reasons for judgment were delivered, Order 4 of those Orders referred to the list contained Annexure “A”, which was mistakenly the list of items of property originally sought by the wife at trial, rather than the list of items agreed by consent in the June 2023 Orders.
In my reasons for judgment, I stated at [239]:
Other than in relation to the two pool approach and the payment contended by the wife, there were no submissions on behalf of the husband in relation to the orders sought by the wife in the event of default by him or the chattels sought by her in Annexure A to her Minute of Orders annexed to her Outline of Case document. In the circumstances, those orders will, in substance, be made.
The June 2023 Orders having been made, Order 4 of the December 2023 Orders was clearly a slip amenable to correction pursuant to r 10.13(1)(h) of the Rules, which provides that the Court “may at any time vary or set aside an order, if … there is an error arising in the order from an accidental slip or omission”. In determining whether an omission or mistake is deliberate or accidental, the test has been held to be whether, if the matter had been brought to the Court’s attention, the correction would at once have been made. See Vadisanis & Vadisanis [2015] FamCAFC 180; (2015) FLC 93-671 at [28], citing with approval Hatton v Harris [1892] AC 547 at 558 (per Lord Herschell).
In the husband’s Affidavit at [18], he deposes that (at some unspecified point in time before 5 June 2024) he caused his solicitors to order the transcript of the final day of hearing on 8 June 2023 in respect of the tendering of the list of items agreed by the parties. He further deposes that Senior Counsel did not make submissions at the time as the parties had negotiated a consent position.
In the wife’s Affidavit, she deposes at [17] that on 21 December 2023 she caused her solicitors to contact the husband’s solicitors in relation to organising a date for her to collect the items listed in Annexure “A” of the December 2023 Orders. Given what, by reason of the June 2023 Order, was clearly a slip, I consider that to have been opportunistic on her part and that her solicitors, as officers of the Court, should not have countenanced such instructions, seized of their knowledge of the June 2023 Orders. On the other hand, the slip being manifest, the husband could, and I consider should, have made application pursuant to r 10.13(1)(h) of the Rules to set aside Order 4 of the December 2023 Orders at or about that time and, in any event, well prior to 5 June 2024. I consider these matters further below.
The wife further deposes at [19] that, on 9 January 2024, her solicitors received a response from the husband’s solicitors stating that the husband had instructed them that the wife had “already collected the subject items [on a date in] 2023 at 11:00am”. The “subject items” were, presumably, those specified in the June 2023 Orders, albeit that the wife was calling for delivery up to her of those items referred to in Order 4 of the December 2023 Orders.
At [21] of the wife’s Affidavit, she deposes that, on 7 March 2024, she caused her solicitors to write a further letter the husband’s solicitors stating that the December 2023 Orders contained items not included in the June 2024 Orders and requesting that the Suburb F property be made available for the wife to attend for the purpose of collecting the outstanding items. The wife further deposes that no response was received from the husband’s solicitors.
On 26 April, the wife caused a follow-up email to be sent from her solicitors to the husband’s solicitors requesting a response to the letter of 7 March 2024 and notifying them that, failing a response, she would pursue her rights to recover the items. (Wife’s Affidavit at [22].)
Later in 2024, an inspection of the Suburb F property was held. This was attended by the parties’ eldest son. At [22] of the husband’s Affidavit, he deposes that he was contacted by telephone by his real estate agent at approximately 11:45am that day, informing him that the wife, accompanied by police officers, had attended the property to take possession of the remaining items pursuant to the December 2023 Orders. The husband returned to the Suburb F property and refused entry to the wife and police. (Husband’s Affidavit at [23] – [30].)
The husband further deposes at [32] that, following the inspection, his real estate agent contacted him to inform him that his eldest son, who had attended the inspection, had removed an instrument without permission and had threated physical violence if he was not permitted to do so.
In an Affidavit sworn by the parties’ eldest son on 13 May 2024 and filed by the wife 14 May 2024 in support of her Enforcement Application, he deposes at [5.1] and [6.1] that he located sporting equipment and an instrument, as well as items including art, a designer armchair and other furniture, and storage containers containing sportswear and equipment and personal suitcases which he believed belonged to the wife and the three children of the marriage. He further deposes at [7.1] to seeing two designer wall lamps in the master bedroom.
Following these events, the wife filed her Enforcement Application on 14 May 2024 and the husband subsequently filed his Application in a Proceeding on 5 June 2024 to have the December 2023 Orders set aside or varied pursuant to r 10.13(1)(h) of the Rules.
SECTION 117(2A) MATTERS
Section 117(1) of the Act relevantly provides that, subject to (inter alia) sub-s 117(2), each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) relevantly provides that, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to (inter alia) s 117(2A), make such order as to costs at the Court considers just.
Section 117(2A) provides that, in considering what order (if any) should be made under sub‑s (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;
(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.
In my previous costs judgment in this matter delivered ex tempore on 12 March 2024 (“previous costs judgment”), I referred at [6] to the decision of the High Court of Australia in Penfold v Penfold (1980) 144 CLR 311 and at [7] to the decision of the Full Court of the Family Court of Australia of Collins & Collins (1985) FLC 91-603, where I said:
6.In Penfold v Penfold (1980) 144 CLR 311 at 315–316, the plurality of the High Court relevantly said, in relation to s 117(2), albeit in the form in which it then was over 40 years ago, as follows:
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”.
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(Footnotes omitted)
7.In Collins & Collins (1985) FLC 91-603 at 79,877, the Full Court said that, although the discretion under s 117(2) “is to be exercised having regard to the primary rule that each party bears his or her own costs”, it is a “broad” discretion, to be exercised having regard to the factors set out in sub-section (2A) thereof, which factors are not to be read in a restrictive way, and that “the discretion remains a broad one”.
As outlined in that costs judgement at [9] – [14], in relation to s 117(2A)(a), the financial positions of the parties reflect that they are of considerable means and have sufficient resources to meet their costs. There is no suggestion, let alone any evidence, that anything of substance has changed in this regard since then.
At [225] of my reasons for judgment delivered on 15 December 2023, I said as follows, in relation to the wife:
… By reason of my contribution-based assessment, the wife will retain and receive $2,452,847 in respect of the Pool A assets. In addition also to the retention by the wife of her two ANZ bank accounts (#[…]65 and #[…]98), totalling $627,117, that will require receipt by her of a payment from the husband of $1,825,730. She will also retain assets from Pool B totalling $6,051,010 and superannuation entitlements of $261,018, together with a taxation liability of $51,792 and latent capital gains taxation liability on her inherited share portfolio, if and when they are sold (as to which there is no evidence). She will, therefore, retain and receive assets (including superannuation) totalling $8,712,683.
At [226] thereof, I said as follows, in relation to the husband:
By reason of my contribution-based assessment, the husband will retain $3,678,670 in respect of the Pool A assets, after the payment to the wife. He will also retain assets from Pool B totalling $3,796,295 and superannuation entitlements of $128,606. … The husband will, therefore, receive and retain assets (including superannuation) totalling not less than $7,603,571.
With regard to s 117(2A)(b), neither party is in receipt of legal aid, and unsurprisingly so in the circumstances of this case.
I therefore turn to s 117(2A)(c) and (d), to which the bulk of the parties’ submissions are addressed.
The husband submits at [18] of his written submissions that the wife “must have known that she was not entitled to” cause her solicitors and the police officers to exercise a right “purportedly consistent” with the December 2023 Orders to take possession of his items of property. He points to the fact that the list engrossed in Annexure “A” to the June Orders was negotiated and consented to by her Senior Counsel on her instruction at the final hearing.
He contends at [19] that, if I accept that the wife had this state of knowledge, then this conduct would constitute a “special or unusual” factor under s 117(2A)(c) such that the Court should exercise its discretion to award indemnity costs.
He then refers at [20] to a number of circumstances, supported by authority, in which an indemnity costs order has been made where the Enforcement Application:
20.1.was high-handed; and/or,
20.2.had no chance of success; and/or,
20.3.was hopeless; and/or,
20.4.was unnecessary; and/or,
20.5.was brought and prosecuted “not for the bona fide purpose of protecting and enforcing a legal right, but to achieve an ulterior or extraneous purpose”; and/or,
20.6.was commenced in wilful disregard of known facts or contrary to well-established law; and/or,
20.7.reflects delinquency on the part of the wife;
20.8.is so unjust as to warrant an order for indemnity costs
(citations omitted)
He further contends at [22] that the wife’s Enforcement Application was an abuse of process as “she must have known she was not entitled to do so”.
The husband rejects any contention that his delay in making an application relating to the slip was a contributory factor, as the wife had knowledge thereof. He also refers to [38] – [47] of his Affidavit as providing a “reasonable explanation for his delay”. These paragraphs of his Affidavit reference diagnoses of post-traumatic stress disorder, anxiety and depression, matters to which, he correctly points, I referred in my reasons for judgment on 15 December 2023 at [175]. However, as I observed at [178], he did not at trial (nor, I now observe, in support of his costs application) adduce any evidence from his treating psychiatrist regarding any effect of his post-traumatic stress disorder and depression on his functioning.
Further, he points to being under extreme stress to obtain finance from a bank or to sell the Suburb F property to comply with his obligations under Order 1 of the December 2023 Orders which required him to pay the wife the sum of $1,825,730 within 90 days of the Orders. However, I observe that he had until 14 March 2024 to comply. He deposes that he was concerned that he would not have the funds to pay legal representatives. Further, relevant to s 117(2A)(e), he refers to the legal fees incurred as a result of the wife’s costs application filed on 25 January 2024, which was ultimately dismissed by Orders made on 12 March 2024. These factors do not advance the matter further.
In his written submissions, at [23], he submits that, as a result of the wife’s Enforcement Application, he was put to the expense of causing his solicitors to appear at a Directions Hearing on 22 May 2024. He states that he caused his solicitors to give a “detailed explanation” of the slip rule issue, and that “[h]ad the wife been in honest error about the slip … at that point the wife ought to have properly withdrawn the enforcement application”, but she did not do so. Rather, he submits he was obliged to incur costs in ordering a transcript of the final hearing and to file his Application in a Proceeding on 5 June 2024 regarding the slip. He contends at [24] that the wife, yet again, did not take the opportunity to withdraw the Enforcement Application.
The wife submits that her Enforcement Application was filed in good faith and in circumstances where she relied on the reasons for judgment delivered on 15 December 2023 and the December 2023 Orders. It is difficult to comprehend how she can so submit, in circumstances where she and her lawyers, who appeared at trial, were aware of the June 2023 Orders. No explanation is proffered by her as to how Order 4 of the December 2023 orders could conceivably be reconciled with the June 2023 Orders to which she had consented. Her submission at page 5 that “[t]he issue of the orders of June 2023 having finalised the chattels dispute was not apparent to [her] until the husband sought to agitate the slip rule on 21 May 2024” is, in the circumstances of those orders having been made by consent, incomprehensible and unsustainable.
However, the wife correctly submits that the husband did not raise the slip in Order 4 of the December 2023 Orders until 22 May 2024, despite the communications from her solicitors to his solicitors on 21 December 2023, 7 March 2024 and 26 April 2024 which made manifest her reliance on the December 2023 Orders. On this basis, the wife correctly submits that the husband was aware of the issue of the slip from 21 December 2023. The wife further notes that the husband had the opportunity to make his slip application on 12 March 2024, when the matter was before the Court in relation to the costs of the substantive proceedings.
In their submissions, the husband and the wife each point to the other, blaming the other for not taking action: the husband argues that the wife had multiple opportunities to withdraw her Enforcement Application; the wife similarly contends that the husband had multiple opportunities to bring an Application in a Proceeding to amend the judicial slip. Each of them is right but, therefore, each of them is in the wrong.
Insofar as the wife further contends that, at the time the June 2023 Orders were made by consent, the husband misled her about the existence of items that she had originally sought to have made available to her in the Annexure to her Case Outline, this is denied by the husband at [35] and [37] of his Affidavit. She submits that her consent to deletions from the list of items – including her clothing; the children’s clothing and personal items; the children’s and her personal sports equipment; and her personal collection of designer ceramics – was due to the husband’s representations that he no longer possessed the items. As I have referred to at [26] above, the parties’ eldest son, in his Affidavit, deposes that he saw some of these items in the Suburb F property when he attended the inspection in 2024. To this end, the wife submits that the husband has not come to Court with clean hands and therefore that “to reward the husband in the manner that he is seeking by way of a costs order in respect of conduct that was created by him, would be an unconscionable punishment upon the wife”. In circumstances where the husband denies the allegations of the wife and, in particular, the evidence of their eldest son, the Court is unable to make any findings in relation thereto. Further, there is no application to vary or set aside as the June 2023 Order. Accordingly, these considerations are not germane to the issue at hand.
With respect to s 117(2A)(f), the wife submits that, following receipt of the trial transcript from the husband on 4 July 2024, she proposed a resolution of her Enforcement Application and the husband’s Application in a Proceeding filed 5 June 2024, such that the Enforcement Application would be withdrawn; an order would be made pursuant to the “slip rule” (by which I infer she refers to r 10.13(1)(h) of the Rules); and each party would bear their own costs. She submits at page 3 that the husband refused this offer as he wanted to pursue costs. The wife therefore submits that it would not be “just nor equitable” (sic) for a costs order to be made against her as, whilst she sought to rely on the December 2023 Orders, upon receipt of the transcript of the final day of the hearing, she acceded to the husband’s Application in a Proceeding with respect to the slip.
The husband submits that the wife had a further opportunity to withdraw the Enforcement Application on 6 August 2024, when he made an offer of settlement to the effect that she pay his costs of the his Application in a Proceeding, fixed in the sum of $13,576.63, which is a relevant consideration under s 117(2A)(f).
It is clear from the submissions that, while both parties made an offer to the other party to settle the proceeding, neither party was willing to accept such terms.
It will be apparent from my observations above that I am critical of both parties and, especially in the case of the wife, the lawyers too. In light of the June 2023 orders, her Enforcement Application in respect of Order 4 of the December 2023 Orders could not, and should not, properly have been brought. However, it should similarly have been apparent to the husband, as well to his lawyers, on 15 December 2023, or shortly thereafter, that Order 4 contained a slip. In particular, in circumstances where that order imposed an obligation upon him (as opposed to a benefit conferred upon the wife), it behoved him to make application pursuant to r 10.13(1)(h) of the Rules far more promptly than he did and certainly on, or shortly after, 21 December 2023, when the wife caused her solicitors to contact his solicitors to organise a date for her to collect the items listed in Annexure “A” referred to in Order 4 of the December 2023 Orders.
In the exercise of my broad discretion under s 117 of the Act, and taking into account the matters required by sub-s (2A) thereof, I do not consider that there are circumstances that would justify the Court departing from sub-s (1) thereof and making an order as to costs. I therefore do not need to consider the basis or quantum of costs sought by the husband, nor those sought by the wife.
However, in relation to the costs sought by each of them, as the Full Court observed in Keighley & Keighley [2023] FedCFamC1A 146, where solicitor/client or indemnity costs are sought, the costs on a party/party basis at scale should also be particularised. See also r 12.17 of the Rules. Accordingly, all applications for costs shall be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 12 November 2024
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