Strahan and Strahan (No. 4) - [2009] FamCA 763

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 4)

[2009] FamCA 763

FAMILY LAW – COSTS – application by the husband seeking costs – where various interim financial and interim parenting issues had been listed for hearing – where the wife was wholly unsuccessful in an application seeking a stay of the proceedings pending determination of an appeal – where the wife sought an adjournment due to her lack of funds – where an adjournment was granted with respect to the financial issues only – where consideration of interim children’s issues proceeded – where the wife had recently filed an affidavit in preparation for the hearing – where the wife only advised the husband of her position late on the day before the hearing – where the wife was aware that she had insufficient funds to prepare for the hearing for some time but failed to advise the Court or the husband – where the husband had prepared the case for hearing – where an order for costs is justified – whether costs to be awarded on an indemnity basis – order for the wife to pay costs on an indemnity basis – costs to be paid from the wife’s final property settlement

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Schedule 6, clause 6.20

Colgate- Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Kohan and Kohan (1993) FLC 92-340
ZH and N [2005] FamCA 828
Yunghanns and Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

9 April 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

9 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms D Pederick

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr N Ackman QC

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs V West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ann Bills & Associates

Orders

That the wife pay to the trust account of the solicitors for the husband the sum of FORTY-FIVE THOUSAND DOLLARS [$45,000.00] by way of costs, such amount to be paid upon final resolution of the wife’s application for property settlement in the first instance.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX TEMPORE REASONS

I have before me an application for costs by the husband.
This matter was originally set for two days, yesterday and today, and there were a number of applications which were listed for hearing. I will not repeat all that happened yesterday, but briefly, an application to adjourn all applications was made by the wife, and in the end result I acceded to that application insofar as it related to what I categorised as financial matters that the wife herself was pursuing, but I refused to grant an adjournment in relation to issues to do with the child.
When this matter commenced this morning the wife was not present but her solicitor, Ms Pederick was, and Ms Pederick announced her appearance on behalf of the wife. Yesterday the wife was represented by her senior counsel, Ms Pyke QC, and junior counsel, Mr Holland, and Ms Pederick was present in court as well.
After Ms Pederick announced her appearance the application for costs proceeded. Towards the end of that application, though, Ms Pederick curiously advised that she had no instructions in relation to the application that I was then hearing and that she sought leave to withdraw.
In the circumstances it was necessary for me to clarify precisely what her position was, and it took some time to do that, but in the end result Ms Pederick advised that she was still the solicitor for the wife, but that - and to repeat - she had no instructions in relation to the application which was proceeding today and she sought leave to withdraw but only in relation to that application.
Before I gave her leave to withdraw I inquired of her as to whether her client would be attending and appearing on her own behalf in this application, and Ms Pederick informed me that her client was unable to attend today. She made some general comments about that but gave me no specifics and no particular reason why her client had not attended today and why she was not able to appear on her own behalf. I then gave leave to Ms Pederick to withdraw.
Thereafter the application proceeded in the absence of either the wife's solicitor or indeed any counsel instructed by the wife's solicitor or the wife herself, and in effect the application has become undefended. However, as I indicated, I proposed to proceed on the basis that the application is opposed. I still need to be satisfied that the order sought should be made. I have a wide discretion in relation to costs, but there are certain matters that I need to address and be satisfied about, and Mr Ackman has not suggested otherwise. Obviously though I have not heard any submissions from or on behalf of the wife in relation to this application and that has been her choice.
The application is that the wife pay costs in the total sum of $53,208. The breakdown of that amount is counsel fees for two days preparation and two days hearing for Mr Ackman QC, senior counsel, $26,400; counsel fees for junior counsel, Ms McMillan, for two days preparation and two days hearing at a total of $16,800; solicitors fees, firstly for Mr Harris for his attendance at court on 8 April in the total sum of $3927 and for his attendance at court today in the total sum of $1122. A similar amount is sought for Ms Mason in her capacity also as solicitor for the husband.
As Mr Ackman has put to me, and I accept and understand, there would be other significant costs that the husband will be responsible for pursuant to the costs agreement that exists between him and his solicitors. Mr Ackman has not put it in these words, but I accept that this is a claim for costs which does not extend to the full extent of the costs that the husband will incur as a result of what has happened in this case.
Initially there was a claim for the perusing of documents and for the drawing and engrossing of documents. That claim is not pursued and I understand why. In relation to the preparation of documents, they are documents which relate to the adjourned applications, primarily, and that work obviously has not been undertaken unnecessarily, or the costs associated with that have not been thrown away. Furthermore, even in relation to the child, I was only prepared to make an order up to and including 16 and 17 May and I anticipate there will be a need for further consideration of orders for the child to spend time with his father when the matter is next before me. Obviously those affidavits which have been prepared and filed for the purpose of the hearing are in the same category.
There has been discussion between bench and bar as to whether this claim is a claim for costs on an indemnity basis or not. It seems that the Family Law Rules 2004 themselves set up a basis for costs to be ordered on a lawyer and client basis or on an indemnity basis, and I am referring to, for example, clause 6.20(1)(b)of Schedule 6. Rhetorically I ask what is the difference between the two? To consider that question it is relevant to look at the definition of "indemnity basis" that appears in the explanatory guide to the Rules. Again, that seems to imply that there are two possible bases for costs to be ordered, namely, an entitlement to costs under a costs agreement (which is not costs on an indemnity basis) or an entitlement to costs including costs under a costs agreement and all further costs incurred other than costs that are unreasonable in amount or that have been incurred unreasonably (which is costs on an indemnity basis).
I am somewhat bemused by all that because to my mind to order costs to be paid calculated on the basis of a costs agreement or put another way, on a lawyer/client basis, is to order costs on an indemnity basis.
In any event, I do not need to pursue that point because ultimately Mr Ackman has indicated that he is quite content to have his client's application treated as an application for costs on an indemnity basis.
Any application for costs is governed by s 117 of the Family Law Act 1975 (Cth) which provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 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) 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.
The key subsections for today's purposes are subsection (2) and (2A).
Mr Ackman puts to me that there are circumstances here that justify an order for costs.
The hearing listed initially for 8 April 2009, but subsequently extended to 9 April 2009, was set on 13 March 2009. On that day I made an order that specific applications and responses be listed for hearing and I gave the parties leave to file and serve any further affidavits in relation to the issues that were intended to be argued, and, as a catch-all, I adjourned all other outstanding applications and responses to that same hearing.
Primarily the applications to be dealt with were the wife's Amended Application for spousal maintenance and the husband's response to that, the wife's Application in a Case in which she sought orders by way of child support, an amendment of her Application for Final Orders in relation to property settlement, and also orders in relation to the removal of the trustee of a fund which is set up to meet the needs of the child and to which the husband contributes. They are what I have categorised as the financial matters that the wife was pursuing.
The other major topic to be dealt with at the hearing was the interim arrangements for the child and that was in effect an application by the husband, although, oddly, the initial application in relation to it was made by the wife, where the wife was seeking to vary an earlier order of mine which, by the time of this hearing, had expired.
The parties took up the leave that I granted on 13 March and filed further affidavits. The husband also filed a financial statement. Thus for all intents and purposes the matter was being prepared for the hearing on 8 and 9 April 2009.
In the meantime the wife filed a Notice of Appeal against an order that I also made on 13 March 2009 and on 3 April 2009 the wife filed an application to stay the further hearing of these proceedings. Even at that point though there was no indication given by either party, or specifically the wife, that the issues that were listed for hearing on 8 and 9 April would not proceed if the application for a stay was not granted.
The application for a stay was pursued and argued on behalf of the wife when the matter commenced before me on 8 April. Then it came to Mr Ackman to respond and Mr Ackman tendered a letter which his instructing solicitors had received the night before from the wife's solicitors, and which I have marked Exhibit H1. That letter advised the husband's solicitors that the wife had not been able to fund the preparation and hearing of the argument in relation to all matters listed for hearing on 8 April and under the circumstances, that should the judge not grant the stay, the wife would be seeking an adjournment of approximately one month, by which time the Full Court judgment in another appeal that the wife had on foot against orders relating to her funding was anticipated to be delivered. A statement was also made in the letter that "The wife is now without funds to adequately fund the preparation and argument of the pending applications."
In any event I proceeded to hear all submissions in relation to the application for a stay and I delivered my reasons for judgment and I made an order dismissing the application.
Ms Pyke QC, senior counsel for the wife, then did make the application for an adjournment, which I have mentioned earlier in these reasons, and which was foreshadowed in this letter received by the husband's solicitors on the night before the hearing was due to commence. As I have indicated, in the end result I did grant the adjournment of the financial matters that the wife was pursuing but I did not adjourn the question of the child spending time with his father.
As part of my reasons for judgment in dismissing the application for a stay I made comments that the wife, in my view, should have alerted the court and, obviously, the husband and his advisers, to her need for an adjournment well before she did, namely, on the night before the hearing was due to commence.
What was apparent to me then, and as has been reiterated in submissions today by Mr Ackman, is that by late February 2009 the wife had spent all of the $1 million that she had received pursuant to an order that I made last year by way of interim property settlement and that, at least by 13 March 2009, the wife did not have sufficient funds to fund the preparation and hearing of the argument in relation to the matters listed for hearing on 8 and 9 April.
Despite that circumstance, on 13 March 2009 when I addressed the listing of the applications and the time to be set aside for the hearing of them, nothing was said by the wife through her counsel that there was a problem in terms of her ability to fund the preparation and the attendance of counsel at the hearing.
As Mr Ackman has pointed out again today, not only was nothing said about that at that time but the wife continued to in effect prepare the case by taking up the leave that I granted to file further affidavit material. On 2 April 2009 she filed a lengthy affidavit giving the message that she was still intending to pursue her applications on 8 April 2009.
There has also been ample opportunity for the wife to call the case on before me by way of a directions hearing to address this issue, and to alert not only the court but also the husband and his legal representatives to this difficulty. Thus, in effect, by not raising this, the wife has allowed the husband to assume that the hearing would take place and that he needed to get on with his preparation of the matter, give instructions to his solicitor, have his solicitor instruct counsel, and have counsel prepare the argument and attend at the hearing, and that is in fact what has occurred.
As I said in my reasons yesterday, certainly the wife’s counsel had indicated at previous hearings that the wife was running out of money to fund her legal representation, but what should have happened is that on 13 March this issue should have been raised fairly and squarely. It was not. Nor, as I say, and to repeat, was there any subsequent request made to list the matter to address this issue in time to prevent the husband from going to the time, trouble and expense of fully preparing his case and instructing counsel for the purposes of the hearing on 8 and 9 April.
As is obvious, to only advise of the wife’s position late on 7 April was clearly far too late to prevent the husband preparing this case, instructing counsel and being ready to deal with the matters on 8 and 9 April.
These are the circumstances on which Mr Ackman relies in submitting that there should be an order for costs, and I agree entirely with that submission. Those circumstances, without doubt, justify an order for costs in favour of the husband as a result of the adjournment of the financial applications which the wife had before the Court.
I note of course that I refused to adjourn the application in relation to the child and some time was spent, on 8 April 2009, addressing that issue and hearing submissions and ultimately making orders. Thus that time was not lost, but that was insignificant in comparison to the time lost as a result of the adjournment.
If I need to identify any of the particular factors under s 117(2A) which provide justification for an order for costs then I refer to paragraph (c), and paragraph (g) which is a general catch-all. Obviously I need to have regard to paragraph (a), and I will deal with that in a moment, but apart from that I need do no more than refer to paragraphs (c) and (g).
That said, I need to turn my mind to the basis on which costs should be awarded. As I have said, I am treating the application as an application seeking costs on an indemnity basis.
The Rules set out the matters that the court may consider in making an order for indemnity costs, and I particularly refer to clause 6.20(2) of Schedule 6 which provides as follows:
(2)In making an order under subclause (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.
There have been a number of decisions which provide guidance in determining whether indemnity costs should be awarded, and I refer to, for example, the case of Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225. That case is one of the leading authorities addressing when it is appropriate to award costs on an indemnity basis. Sheppard J there said (at 233) that there needs to be some special or unusual feature in the case to justify the court in departing from the ordinary practice, the ordinary practice being that costs are assessed on a party‑party basis.
In terms of authorities in this court, there is the decision of Kohan and Kohan (1993) FLC 92-340, at 79,611, where the Full Court said this:
We are of the opinion that in an appropriate case, the Court has a discretion to order costs on an indemnity basis and that such costs may be ordered, where they have been incurred under a costs agreement which departs from the usual scale of costs. However, 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 section 117(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.

It is also trite to say, but clear law, that the categories of circumstances that will enliven the discretion to award indemnity costs are not closed and nor is it a condition precedent to an award of indemnity costs that a collateral purpose has to be established against the party against whom the costs are sought.
In Colgate-Palmolive v Cussons (supra), Sheppard J also identified examples of what may justify an award of indemnity costs, and these include:
(a)Where proceedings have been commenced or continued in circumstances where, if properly advised, a party should have known they had no chance of success.
(b)Where a party makes false or irrelevant allegations of fraud.
(c)Where there is evidence of misconduct causing loss of time to the other parties or the Court.
(d)Where a party unduly prolongs a case by “groundless contentions” or makes allegations which should not have been made.
(e)Where a party imprudently refuses an offer of compromise.
The circumstances here do not come within those examples but those examples give the flavour of what has led to an award of indemnity costs in other cases. Also, to repeat, the categories of circumstances are not closed.
It is also important to note that a court is not obliged to make an order for costs on an indemnity basis merely because there are particular circumstances and facts capable of justifying such an order. Costs are always in the discretion of the court.
Another case to which I want to refer in this context is a more recent case of ZH and N [2005] FamCA 828. It is a decision of our Full Court, comprising Bryant CJ, Coleman and May JJ. There the Full Court confirmed the principles that I have just referred to, and also reiterated what was said by the Full Court in Yunghanns and Yunghanns (2000) FLC 93-029 at 87,241, namely:
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-party basis.
That is, of course, what Sheppard J also said in Colgate-Palmolive v Cussons (supra). Thus, what I need to find here is some particular fact or circumstance that would warrant payment of costs on an indemnity basis. In that regard Mr Ackman relies on the same circumstances that I have previously referred to. To repeat, but briefly, the apparent failure by the wife to alert the court and the husband to the wife's particular situation and her inability to fund the preparation and hearing of the argument in relation to the matters listed for hearing on 8 and 9 April 2009 either on 13 March 2009, when the hearing was set up, or at any time subsequent thereto, until a letter late on 7 April 2009. The other relevant circumstance that I particularly repeat is of course in that period of time it was not a case where the wife ceased doing anything in relation to the hearing and in fact she prepared and filed a lengthy affidavit as late as 2 April 2009 and gave every indication that she was pursuing the hearing of the applications on 8 and 9 April 2009.
On that basis, as I say, and to repeat, the husband was perfectly entitled to and indeed was required to get on with his own preparation and instruct his solicitors and have counsel briefed. What the wife would have been well aware of, given her own circumstances, is the husband in doing that would have incurred and did incur substantial costs, much of which would in effect be thrown away if the hearing did not proceed on 8 and 9 April, and that is in fact what happened in relation to at least two of the three major applications that were listed for hearing on that day.
In my view not only do those circumstances justify an order for costs, they are the particular facts and circumstances of the case which are special or unusual to warrant this court departing from the ordinary practice of assessing costs on a party-party basis.
As is obvious though from what I have referred to already, I need to also take into account the costs agreements that are in existence and indeed the Rules require me to do that. The costs agreements have not been formally tendered but Mr Ackman has told me of their content and I accept what he has put to me from the bar table.
In terms of the costs sought, they have been calculated on the basis of those costs agreements. For example, the cost agreement provides for Mr Ackman's daily fee to be $6600, for Ms McMillan's daily fee to be $4200 and for Mr Harris's and Ms Mason's hourly rate to be $561 per hour.
I am also obliged, under the Rules and under the authorities, to look at that in terms of how far those amounts exceed the Family Law scale and to take that into account in the context of the financial circumstances of the parties.
It is apparent that except perhaps in relation to the fees for senior counsel, the amounts in the costs agreement exceed the scale by a significant margin. For example, the hourly rate for a solicitor under the scale is $192.90 but the costs agreement provides for a rate of $561.00 per hour. However, that also needs to be viewed in the context of this particular case and the length and complexity of it. In my view this is a case which justifies the level of charges contained in the costs agreement and I do not consider that to be unreasonable per se.
In regard to the financial circumstances of the parties I have of course the financial statement filed by the husband of recent times and that tells me he has a substantial income and he has substantial assets. The wife's position is set out in her affidavit of 2 April 2009 and that paints a different picture. She has limited income, substantial expenses and very little by way of funds in terms of cash in the bank.
There are of course a number of properties that these parties own and which are the subject of their competing applications for property settlement. The wife is living in one of those properties and that needs to be taken into account in assessing her financial position. There is no denying that the wife - and the husband has conceded this, both in the orders that he seeks by way of property settlement and in submissions - will receive, in relative terms, a substantial property settlement. That entitlement has been eroded somewhat by the orders for interim property settlement that have been made along the way, but not to the extent that the wife still cannot expect a substantial payout by way of her entitlement to property settlement. Thus although the wife's financial position prima facie is dire at the current time, that is not going to be the case ultimately.
Given that, obviously the amount sought by the husband is a significant sum, namely, $53,208, but when looked at in the context of the financial circumstances of the wife as they might be anticipated to look like once she has her property settlement, that provides a far different picture than simply looking at her financial position now and the impact that an order of that magnitude might have on that financial position. In other words the impact on the financial circumstances of the wife of an order for indemnity costs in the amount sought is not such as to sway me from making such an order.
However, I raised with Mr Ackman the reasonableness of claiming costs for two solicitors to attend the hearing. My view is that was unnecessary and I do not propose to allow both sets of solicitors' fees.
The other matter, which I have already touched on, is that the issue in relation to the child was able to proceed because I did not adjourn that application. Thus part of yesterday's hearing was spent dealing with that issue and I propose to reduce the amount of costs to allow for that circumstance.
I also note, of course, that we have not spent all day here today, but that is not necessarily the test. Mr Ackman and Ms McMillan have set aside two days to hear this case and it is not as though they can now pick up a brief for the rest of the time left this afternoon. Thus it is appropriate to take into account that the costs sought are on the basis of a two day hearing.
In terms of the order that I propose to make, and given what I have said about the impact upon the wife's financial circumstances, I propose to make an order for indemnity costs but I will provide for those costs to be paid out of the wife's ultimate property settlement.
Earlier today and prior to the luncheon adjournment I delivered these reasons for judgment and even reached the point of making an order as to the costs to be paid by the wife. Following the adjournment though I raised an issue with Mr Berman which was troubling me, namely in Mr Ackman's submissions and in the application for costs no differentiation was made between the application for an adjournment and the application for a stay, which were the applications dealt with yesterday. Mr Ackman's position seemed to be that there is a justification for indemnity costs in relation to both of those applications.
There is no doubt that there is a justification for an order for costs in relation to the stay application, because the wife was wholly unsuccessful. What I was turning my mind to though was whether there was a fact or circumstance which would justify an order for costs on an indemnity basis.
I have now raised that with Mr Berman and Mr Berman has made submissions. As I have indicated to him, prima facie I am swayed by those submissions, that really there is no distinction between the two applications in this regard. Indeed, as he put it - and I need to consider this point - there is perhaps even more justification for indemnity costs in relation to the application for a stay than in the application for an adjournment.
However, as I have indicated to Mr Berman, I want to further consider my position about that. What I propose to do is that although I have delivered reasons for judgment I indicate that I will want to add to those reasons, but given the time constraints I will need to reserve my judgment in that regard and then deliver final reasons which will include further reasons addressing this particular point.
With the order that I have pronounced I propose to recall that. The position I want to achieve is that I have heard submissions, I have delivered the majority of my reasons, but I need to further consider the matter and add to those reasons. In that respect I am not in a position to make the order that I pronounced previously, and I recall that order.

I certify that the preceding 62 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 April 2009.

Associate

addendum reasons

I have now called this matter back on this afternoon. Earlier today I heard submissions in relation to an application for costs and I delivered reasons for judgment and in fact reached the point of making an order. The matter was adjourned though to address further issues in the case.
Following the period of the adjournment I raised with counsel, Mr Berman, an issue in relation to the application for costs which I had just dealt with and I recalled the order that I had made and indicated that I would need time to further consider the matter.
Fortunately, I have had sufficient time to reflect on the matter and I am now in a position to add the further reasons to my earlier reasons for judgment and to make an order.
The further reasons are these. In relation to the application for a stay there is clearly a justification for an order for costs, namely, that the wife was wholly unsuccessful in that application. However, the question of whether those costs should be assessed on an indemnity basis requires somewhat more than that. As I elaborated on earlier today, and referring to authority, there needs to be some special or unusual feature that applies which would justify the court departing from the usual practice, which is that costs be assessed on a party-party basis.
As I say, I raised this with Mr Berman and he has put to me that it is in effect the same special or unusual feature which Mr Ackman put forward and which I accepted and referred to in my earlier reasons that is the feature that allows me to order that the costs in relation to the hearing of the application for a stay be assessed on an indemnity basis.
Without repeating all of what I said earlier today, the unusual or special feature relates to how the matter developed from 13 March 2009, when I made orders listing the various applications for hearing. I am referring here to the circumstance that in my view the wife well knew that she was in difficulty in relation to funding as least as early as 13 March 2009. In other words she was aware at that time and at all subsequent times that she had insufficient funds to instruct her solicitor and to have counsel briefed to prepare and present argument at the hearing set for 8 and 9 April.
Of course the application for a stay was an application which was not in contemplation on 13 March 2009; it was an application which was filed on 3 April 2009 following upon the lodging of a notice of appeal against one of the orders that I made on 13 March 2009. Logically that application needed to be dealt with first, on 8 April 2009, before moving to the applications which were originally listed for hearing.
What Mr Berman has put to me about that is that given the circumstances, namely, the wife not alerting the court, nor the husband, nor his solicitors that she was not able to proceed with the hearing until the night before, when a letter was sent by her solicitors, and then not alerting the court at the start of the hearing on 8 April to the circumstances that then prevailed the application for a stay was in effect to use Mr Berman’s words “a try-on”. In other words, he says that the implication can be made that the wife was looking to have the stay heard at that time, she was looking for it to be successful, and then the other applications would presumably have to be adjourned, and thus her particular circumstances and difficulties in terms of funding would not need to be raised and there would be no need to secure an adjournment for those reasons.
As it happened, the stay application was not successful and during the course of the hearing the husband’s counsel tendered a copy of the letter that the husband's solicitors had received on the previous evening and which alerted them to the difficulties that the wife had.
However, at that point it was too late, far too late, and thus we had a situation where the application for a stay proceeded without any indication from the wife's counsel that this was a problem and that if the stay was not granted then there would be an application to adjourn.
Thus it is in that sense and in that context that Mr Berman puts to me that the knowledge that the wife had and her failure to alert the court to it, and to in effect lay her cards on the table in sufficient time to prevent the husband from expending significant costs in preparing the matter for that day and also in meeting and dealing with the application for a stay can be sufficient justification for the costs in relation to that application to be assessed on an indemnity basis.
I accept that submission on behalf of Mr Berman, and it is consistent with the submissions made by Mr Ackman. As I say, he did not differentiate between the applications, but I took it that he was applying the same argument to all that occurred on 8 April.
Thus, having raised the issue, having heard further submissions about it and considered it, I am comfortable to find that there is sufficient justification for an order for costs to be made on an indemnity basis, to cover all that occurred in this Court on 8 April, namely the hearing of the application for a stay and the application for an adjournment.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 April 2009.

Associate