Tamaniego and Tamaniego (Costs)
[2011] FamCAFC 30
•23 February 2011
Family Court Of Australia
| TAMANIEGO & TAMANIEGO (COSTS) | [2011] FamCAFC 30 |
| FAMILY LAW - COSTS – Costs of the appeal – Costs at trial – Where the Wife seeks that the Husband pay her costs of and incidental to her application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) and in respect of her application for leave to appeal and the appeal – Where the Court did not consider the costs of the proceedings before the Federal Magistrate – Where the appeal was wholly successful – Respondent to pay the Appellant’s costs |
| An and Zhu (2006) FLC 93-257 Dickson and Dickson (No 2) (1999) FLC 92-857 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Gaspaldi & Gaspaldi (Costs) [2009] FamCAFC 148 MZXRL v Minister for Immigration and Citizenship [2009] FCA 114 Penfold v Penfold (1980) 144 CLR 311 Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 |
| Family Law Act 1975 (Cth) – s 44(3), s 117, s 117(1), s 117(2), s 117(2A) |
| APPELLANT: | MS TAMANIEGO |
| RESPONDENT: | MR TAMANIEGO |
| FILE NUMBER: | MLC | 6946 | of | 2009 |
| APPEAL NUMBER: | SA | 99 | of | 2009 |
| DATE DELIVERED: | 23 February 2011 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | Written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 27 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1183 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr Grant |
| SOLICITOR FOR THE APPELLANT: | Pearsons Barristers & Solicitors Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Flower |
| SOLICITOR FOR THE RESPONDENT: | FCG Lawyers |
Orders
The Respondent Husband pay the costs of the Appellant Wife of and incidental to the application for leave to appeal and the appeal concluded by judgment pronounced on 15 December 2010.
The costs in Order (1) hereof be in an amount agreed between the parties within 28 days of the date of these orders and failing such agreement as assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Tamaniego & Tamaniego (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 99 of 2009
File Number: MLC 6946 of 2009
| MS TAMANIEGO |
Applicant
And
| MR TAMANIEGO |
Respondent
Reasons For Judgment
Introduction
Before me for determination is an application for costs in relation to the successful appeal and application for leave by Ms Tamaniego (“the Wife”) against orders made by Federal Magistrate Riley on 27 November 2009. The Respondent to the appeal and to this application is Mr Tamaniego (“the Husband”). The Wife had sought to reinstate discontinued proceedings, or commence proceedings out of time for property settlement, spouse maintenance and child support.
The Wife seeks that the Husband pay her costs of and incidental to her application for leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute proceedings and in respect of her application for leave to appeal and the appeal. It was submitted by the Wife that there are justifying circumstances such that an order for costs be made in her favour once the Court considers the matters set out in s 117(2) and s 117(2A) of the Act. In the event that the Court is not satisfied, the Wife, in the alternative, sought a cost certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in accordance with the recent discussion of the Full Court in Gaspaldi & Gaspaldi (Costs) [2009] FamCAFC 148 (19 August 2009).
The Husband submitted that the Court should not depart from the rule in s 117(1) of the Act, namely that each party to the proceedings under the Act shall bear his or her own costs.
Background
The Wife submitted that it was relevant to consider some of the procedural history and what was said was not put in issue.
The matter was first listed on 1 September 2009 as a transfer from a Federal Magistrate before whom it was listed. Initially Ms S appeared on behalf of the Husband, although later in the day Ms D of Counsel appeared and was instructed by Ms S. The Wife contended that the Husband had not filed any material in response to the Wife’s Application and was ordered to do so by 4:00pm on 8 September 2009. Costs were reserved and the matter was adjourned until 11 September 2009. The Wife contended that on that day substantive argument took place and the hearing was conducted as an interim or interlocutory proceeding by agreement with all parties.
The matter was next listed on 2 October 2009. The Wife contended that it transpired that this listing was as a result of a request by the Husband’s solicitors to make further submissions in relation to the extant application of the Wife for the reinstatement of her applications as distinct from her leave application pursuant to s 44(3) of the Act. The Wife contended that on that date Mr I of Counsel appeared on behalf of the Husband and made submissions generally in support of the position set out in the authority provided to the parties previously by the Federal Magistrate being MZXRL v Minister for Immigration and Citizenship [2009] FCA 114 (10 February 2009).
The Wife contended that she was completely taken by surprise by this hearing as she had not been notified that the Husband’s solicitors had sought to make further submissions. A letter was received from the Associate to the Federal Magistrate offering the parties the opportunity to make submissions. The Wife’s solicitors responded by indicating that they did not wish to make further submissions. Accordingly when the Wife and her lawyers attended on 2 October 2009 they believed the matter was for judgment. As per their communication with her Honour’s Associate no submissions were made in relation to the authority provided by her Honour.
On 27 November 2009 the Federal Magistrate made the following orders:
1. The application filed on 5 August 2009 to reinstate the proceedings filed on 9 November 2005 is dismissed.
2. The application filed on 5 August 2009 for an extension of time in which to bring property proceedings is dismissed.
3. The application filed on 5 August 2009 for an extension of time in which to bring a spousal maintenance application is dismissed.
4. The application filed on 5 August 2009 for leave to bring a departure application in this court is dismissed.
The Wife contended that on 27 November 2009, following delivery of judgment, the matter was further adjourned to enable the Wife to consider her position in relation to adult child maintenance (which application had not been dismissed by the Federal Magistrate) and to enable the Husband to consider his position in relation to making an application for costs as a result of the judgment.
The Wife contended that it was made clear that should the Husband wish to proceed for an application for costs he would be required to file a financial statement. Accordingly, the matter was adjourned to 11 December 2009. Subsequently, the Federal Magistrate was advised that the Wife did not wish to proceed on that date with any further application and that the Husband did not wish to proceed with an application in relation to costs.
On 11 February 2010 an order was made by the Chief Justice pursuant to s 94AAA(3) of the Act that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge.
The hearing was before me on 6 May 2010. During the hearing before me it was made clear by the Wife’s counsel that the Wife was only appealing against Order 2 made by the Federal Magistrate (Transcript, 6 May 2010, p 16).
On 15 December 2010 I pronounced judgment in relation to the Wife’s application for leave to appeal and the appeal and made the following orders:
(1) The Wife’s application for leave to appeal Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be granted and that the appeal against that order be allowed.
(2) Order 2 of the orders made by Federal Magistrate Riley on 27 November 2009 be set aside.
(3) The Wife be granted leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for property settlement pursuant to s 79 of the said Act.
(4) The Wife file and serve within eight weeks of the date of these orders an application for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth).
(5) Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 14 days of the date hereof.
(6) Each party have a further seven days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
(7) Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
(8) Each party endorse on the cover sheet of any submissions filed pursuant to orders (5), (6) and (7), the date upon which a copy of that submission was served on the other parties.
In my reasons for judgment I concluded:
197. I propose to grant the Wife leave to appeal. I am satisfied that the Wife has established that the Federal Magistrate made errors of principle and also that to refuse leave to the Wife to appeal would cause her substantial injustice. I also propose to allow the appeal. In the circumstances, given the admissions made by the Husband, I do not propose to consider any of the complaints in relation to the second question being the discretionary considerations of delay, prejudice to the Husband if leave was granted and so on.
198. During the hearing before me there was discussion about whether, in the event the appeal succeeded, I should remit the application to the Federal Magistrates Court for redetermination or whether I should redetermine the matter.
199. I observe that on 23 February 2010 I made orders that each party file and serve by a specified time and date any application to lead further evidence and any material in support thereof. Neither party filed any further evidence.
200. Counsel for the Wife submitted that if I was satisfied there was sufficient evidence before me to do so I should redetermine the matter. Counsel for the Husband also submitted that, subject to any view I formed about the extent of the evidence, there was no objection to my exercising the discretion.
201. I am satisfied, for the reasons I have outlined above, that there is sufficient evidence before me to enable me to redetermine the matter and that it is not necessary to give the parties any further opportunity to adduce further evidence.
202. I am satisfied, in all the circumstances of this case, that the Wife would suffer hardship if leave was not granted in that prima facie she has a reasonable claim to be heard by the court. I am also of the view, taking into account the delay that occurred, and the absence of any prejudice to the Husband occasioned by the delay, that the Wife should have the opportunity to institute proceedings for property settlement in order to avoid any hardship to her.
On 12 January 2011 an application for costs was filed by the Wife. As I have already observed, the Wife seeks that the Husband pay her costs of an incidental to her application for leave pursuant to s 44(3) of the Act and in respect of her appeal against those orders. In the alternative, the Wife seeks a costs certificate. On 19 January 2011 submissions in reply were filed by the Husband.
In my reasons for judgment delivered on 15 December 2010 I observed:
179. In my view, the Federal Magistrate was in error in relation to the approach she took to consideration of the application. Her Honour was entitled, when considering the first question of hardship, to consider whether the Wife had a prima facie case in the sense explained by the authorities. However, in my view, her Honour was in error in considering the matter of a prima facie case when considering the discretionary considerations at the second stage.
180. Further, even if all of what her Honour said about the Wife having failed to establish that she would have received a greater entitlement if an order was made pursuant to s 79 of the Act than what she had received under the informal settlement, it is my view, that her Honour was also in error.
181. In this case, it is relevant to consider the following matters:
·the period of cohabitation being approximately 17 years;
·there were three children of the marriage;
·neither party had any assets of significance at the commencement of the cohabitation;
·during the relationship the Wife undertook the role of homemaker and parent;
·during the relationship the Husband owned and operated a business;
·there was no evidence as to the extent and value of the assets of the parties at the date of separation;
·the Husband contended that at separation the parties owned three items of real property and a business;
·after separation the Wife continued to have responsibility for the care, support and accommodation of the three children;
·after separation the Wife made significant contributions as a homemaker and parent;
·after separation the Husband continued to operate the business;
·the Husband did pay child support;
·there was no evidence as to the extent and value of the assets of the parties at the time(s) of the alleged informal settlement;
·there was no evidence that enabled any finding to be made in relation to whether or not the amount of $123,000.00 received by the Wife represented a just and equitable outcome at the time of the alleged informal settlement;
·on one view of the evidence, the amount of $123,000.00 did not represent 60 per cent of the net assets of the parties at the time of the alleged informal settlement;
·there was no evidence as to the extent and value of the assets of the parties at the time of the hearing; and
·the considerations in s 75(2) of the Act were clearly relevant as the Federal Magistrate found that the Wife and the children were in necessitous circumstances.
182. All of the above matters demonstrate that the Wife had a prima facie entitlement in that she had a reasonable claim. However, the Federal Magistrate undertook a detailed consideration of the merits of the substantive application and failed to consider whether there existed a prima facie case on the strength of the available evidence. Her Honour approached the matter on the basis of determining whether and to what extent the application would ultimately be successful.
183. In my view, the Federal Magistrate was in error in the approach that she took, and the findings she made in relation to a prima facie case, even if it had been considered by her when dealing with hardship at the first stage.
Relevant Principles
General
Section 117(1) of the Act provides that “[s]ubject 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”.
Section 117(2) of the Act provides that if in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so it may, subject to sub secs (2A), (4) and (5) and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (per Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311 Stephen, Mason, Aickin and Wilson JJ said at 315:
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”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315-16:
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 [(1970) 92 W.N. (NSW) 503, at p. 505]). 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.
In Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 (9 September 2010) the Full Court observed at paragraph 67:
We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Relevant Statutory Considerations In Relations To Costs
Financial Circumstances of the parties
Section 117(2A)(a) of the Act provides that in considering what order, if any, should be made under s 117(2), I shall have regard to the financial circumstances of each of the parties to the proceedings.
The Wife submitted that her financial circumstances are as she deposed in her Financial Statement filed with the Court at the time of her application for leave pursuant to s 44(3) of the Act. The Wife submitted:
The husband did not file a Financial Statement in either the leave proceedings or the appeal proceedings. Annexed to a late Affidavit selective material which, it is submitted, he believed it would be of assistance to his case. At no time did he provide the court with a full picture of his financial situation and indeed when told that he would need to provide such a picture through the filing of a financial evidence and that of the wife was of a man with at least one or two investment properties as well as his residential home, together with an ownership interest in a motor trading business. Given the actions of the husband it was not possible to test his true financial position. Her Honour found, and it was not challenged on appeal, that the wife was at least in “necessitous circumstances”.
The Husband submitted:
Whilst this is a relevant consideration, it is but one factor in the exercise of the Court's discretion. Even conceding that the husband’s financial circumstances are greater than the wife’s, the proceeding was brought about by the wife’s conduct in discontinuing the earlier proceeding and standing by whilst the time for making a fresh proceeding expired thus necessitating the need to apply to the Court under s.44 of the Act. It was the appellant’s conduct which necessitated the proceeding, not the respondent’s.
Assistance by way of Legal Aid
Section 117(2A)(b) of the Act provides that in considering what order, if any should be made under s 117(2), the court shall have regard to 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. Neither party was in receipt of assistance by way of a grant of legal aid.
Conduct of the parties
Section 117(2A)(c) of the Act provides that in considering what order, if any should be made under s 117(2), I shall have regard to 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.
The Wife submitted:
In relation to this consideration the wife submits that the husband's conduct in relation to the section 44(3) proceedings was conduct which increased the hearing time and costs associated with those proceedings. In particular the husband's failure to file material on the first date lead to an adjournment with an order to file additional material. The costs in relation to those proceedings were reserved.
In addition, the husband's failure to notify the wife's solicitors that further submissions were to be made in relation to her initial reinstatement application also lengthened the proceedings. Had they been notified, the wife's solicitors would have indicated that they had no submissions to put and were quite happy for the husband to make written submissions in relation to that point. It was clear that the wife was not seriously pursuing that application.
It is further submitted that the husband's conduct in not providing the court with an open and honest assessment of his financial position was a factor which not only meant he failed to produce his position openly but also assisted in leading her Honour into error so far as the overall financial position was concerned as between the parties.
The Husband submitted:
For the reasons set out above, there is no relevant conduct of the husband that should be determinative of an exercise of the Court's discretion under s.117(2) of the Act. To the contrary, the husband respondent has at all times properly conducted himself before the Court and made appropriate arguments on the relevant legal principles. The relevance of this factor is more starkly relevant where the conduct of the relevant party imposes additional burdens and unnecessary costs on the other party (see In the Marriage of Jenson (1982) 8 Fam LR 594 at 595). It cannot be said that the respondent's conduct in any way improperly added to the cost of the appellant in bringing application it was required by s.44 of the Act to so bring.
Failure to comply with orders
Section 117(2A)(d) of the Act provides that in considering what order, if any, should be made under s 117(2), I shall have regard to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. The Wife conceded that this was not a relevant consideration.
Success in the proceedings
Section 117(2A)(e) of the Act provides that in considering what order, if any should be made under s 117(2), I shall have regard to whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The Wife submitted that “the husband has been wholly unsuccessful in that the decision and many of the grounds of appeal have been accepted by the Full Court”.
The Husband submitted that he conducted the appeal in an expeditious manner and his counsel made appropriate concessions. It was submitted that the arguments put in the Husband’s summary of argument were cogent and proper in the circumstances. The Husband submitted:
This factor is less relevant in situations of appeal. The husband was successful at first instance. He was entitled to the benefit of that judgment. Further, he was entitled to put the arguments he put on appeal. In the circumstances of this case, therefore, it is less significant that he has been wholly unsuccessful on appeal than in a situation where he might have been totally unsuccessful in a substantive proceeding.
Offers of settlement
Section 117(2A)(f) of the Act provides that in considering what order, if any, should be made under s 117(2), I shall have regard to 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. This matter was not relevant save as to the Wife’s submission that they were unable to make any offer of settlement “given the failure by the husband to fully disclose his financial position once her application had been issued”.
Other relevant matters
Section 117(2A)(g) of the Act provides that in considering what order, if any, should be made under s 117(2), I shall have regard to such other matters as the court considers relevant.
The Wife submitted that a relevant matter to consider would be “the husband’s conduct in unilaterally stopping payments to the wife, which led to her application and the continuation of the failure to make those payments”.
Conclusion
The Wife sought both costs of the appeal proceedings and costs of the proceedings before the Federal Magistrate. In the written submissions of the Wife it was acknowledged that there have been different views expressed as to whether the term “proceedings under this Act” is wide enough to encompass both appeal proceedings and the original proceedings: see Dickson and Dickson (No 2) (1999) FLC 92-857. However, the Wife submitted that there is no authority which would or should prevent such an order being made. It was submitted that the circumstances of the particular case could perhaps lead to different conclusions as acknowledged by Warnick J recently in A & Z (2006) FLC 93-257 (per Faulks DCJ, Warnick and Boland JJ).
The Wife submitted that, in the circumstances of this case, no orders for the costs of the proceedings pursuant to s 44(3) of the Act were applied for or made. It was submitted that this is understandable in that she had been unsuccessful in the proceedings before the Federal Magistrate. However, it was submitted that those proceedings were self contained and a necessary precursor to the proceedings pursuant to s 79. It was submitted that given that the application has been successful on appeal the appropriate time to make a costs order in those “separate” proceedings is now.
The Husband submitted that the Wife was required to make an application for a grant of leave to bring proceedings out of time (s 44 of the Act) and this application had to be heard and determined by the Court. The Husband submitted that he was entitled to oppose the application and he did so by maintaining sensible and proper arguments. It was submitted that in this result the Husband was successful at first instance and this bears out the reasonableness of his conduct in opposing the application.
The Husband submitted that his attitude was especially reasonable when considered in the context of this case, namely a situation where an informal property settlement had been entered into between the parties thus giving rise to the necessity for the Federal Magistrate to determine whether, in all the circumstances, if the matter had been litigated within time the applicant would have obtained a better result than the informal settlement.
The Husband submitted that when faced with the decision of MZXRL v Minister for Immigration and Citizenship the Wife elected to make no submissions on this point and this was an implicit concession that this authority was fatal to that part of her case which sought reinstatement of the earlier applications notwithstanding their discontinuance. It was submitted that the fact that this argument was later abandoned upon appeal by the filing of an amended notice of appeal indicated and reinforced the view that the argument had no merit and this fact was sensibly recognised by counsel for the Wife. It was submitted that in light of this fact the conduct of the Husband in seeking to make submissions in support of the position set out in MZXRL v Minister for Immigration and Citizenship cannot be criticised.
The Husband submitted that no order for costs was made before the Federal Magistrate because the Husband recognised the force of the basic principle under s 117(1) of the Act.
I do not accept the submissions of the Wife. Neither party made an application for costs of the proceedings before the Federal Magistrate. However, the Wife has made an application for costs of the application for leave to appeal and the appeal proceedings which includes the re-exercise by me of the discretion to grant leave to institute proceedings. I do not propose to consider costs of the proceedings before the Federal Magistrate. Even if I had such a power I would decline to exercise it given that different considerations would apply to any application for costs of the trial.
In relation to the proceedings before me I am satisfied that the Wife has established a justifying circumstance. The Husband was wholly unsuccessful in the proceedings and thus I propose to make an order for costs. The costs will be assessed on a party and party basis.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 24 February 2011.
Associate:
Date: 24 February 2011
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