Theodorou and Theodorou (No 2)
[2020] FamCA 729
•3 September 2020
FAMILY COURT OF AUSTRALIA
| THEODOROU & THEODOROU (NO. 2) | [2020] FamCA 729 |
| FAMILY LAW – COSTS – Where applications for costs made by both the applicant husband and the respondent wife – Where consideration of applicable principles – Where costs applications dismissed. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.18 |
| Anison & Anison [2019] FamCAFC 108; (2019) FLC 93-908 Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Bele & Vaughan (Costs) [2012] FamCAFC 198 Collins and Collins (1985) FLC 91-603 Greedy and Greedy (1982) FLC 91-250 Hawkins & Roe [2012] FamCAFC 77 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Lenova & Lenova (Costs) [2011] FamCAFC 141 Luadaka v Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941 Theodorou & Theodorou [2020] FamCA 251 |
| APPLICANT: | Mr Theodorou |
| RESPONDENT: | Ms Theodorou |
| FILE NUMBER: | PAC | 5644 | of | 2018 |
| DATE DELIVERED: | 3 September 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received 18 August 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | York Law Family Law Specialists |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
That the parties’ applications for costs be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theodorou & Theodorou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5644 of 2018
| Mr Theodorou |
Applicant
And
| Ms Theodorou |
Respondent
REASONS FOR JUDGMENT
On 17 April 2020 the Court made final orders as to property following a three‑day defended hearing as between the primary applicant wife and the primary respondent husband.
Those orders were as follows:
(1)That within four months from the date of these orders the wife pay to the husband the sum of $705,000 and in consideration of such payment the husband do all things necessary to transfer all his interest in the property at F Street, Suburb G (“the Suburb G property”) to the wife.
(2)That in default of the wife complying with Order 1 by the due or a later date agreed to by the husband and wife in writing, then the husband and wife shall forthwith do all things necessary to sell the said property at the best price reasonably obtainable and pay the net proceeds of sale such as to effect an overall division of the asset pool as set out in Paragraph [71] of these reasons for judgment as to 52.5 per cent to the wife and to 47.5 per cent to the husband.
(3)Liberty to apply as to implementation or enforcement of these orders.
Subsequently, on 14 May 2020 the husband made application by way of Application in a Case supported by his affidavit filed 14 May 2020 to orders that:
a)the wife pay his costs of and incidental to the proceedings on an indemnity basis in the sum of $136,329 or in the alternative the wife pay his costs on an indemnity basis as agreed or assessed;
b)or in the alternative the wife pay his costs of and incidental to the proceedings on a solicitor client basis in the sum of $102,247 or costs on a solicitor client basis to be assessed or agreed;
c)or in the alternative the wife pay his costs of and incidental to the proceedings on a party/party basis in the sum of $88,614 for costs on a party/party basis to be assessed or agreed; and
d)that the wife pay the husband’s costs of and incidental to the costs application.
On 10 July 2020 the wife filed a Response to the husband’s Application in a Case together with her affidavit filed 10 July 2020, that Response seeking orders as follows:
a)that the husband’s Application in a Case be dismissed;
b)that the husband pay the wife’s costs of and incidental to the Application in a Case as agreed or assessed;
c)that the husband pay the wife’s costs of and incidental to the primary proceedings on an indemnity basis such costs as assessed or agreed; and
d)that in the alternative the husband pay the wife’s costs of and incidental to the primary proceedings on a party/party basis such costs as assessed or agreed.
On 14 July 2020 the Court directed that the matter proceed by way of written submissions with judgment reserved to chambers. Final submissions were received with judgment then being reserved to chambers on 24 August 2020.
These reasons for judgment assume familiarity with the primary judgment: Theodorou & Theodorou [2020] FamCA 251.
The husband’s case
The husband provides in his supporting affidavit a history of the proceedings and complains of the wife’s failure to comply with the disclosure orders made by a registrar on 22 January 2019.
Relevantly, those orders provided as follows:
(1)That within twenty eight (28) days of the date of the making of these Orders, the Wife provide the following disclosure by way of information and documents:-
1.1in relation to the Company, M Pty Ltd, the following documents:-
1.1.1originals and/or copies of bank statements in relation to all accounts in the name of M Pty Ltd for the period from 1 July 2007 to date;
1.1.2originals and/or copies of all term deposit statements or records showing funds held in any and all term deposits in the name of M Pty Ltd for the period from 1 July 2007 to date;
1.1.3originals and/or copies of the Financial Statements and Income Tax Returns for the M Pty Ltd for the years ending 30 June 2016 to date;
1.2in relation to the Company, Q Pty Ltd, the wife is to provide the following disclosure:-
1.2.1the Financial Statements and Income Tax Returns for the last 3 years;
1.2.2all bank statements for all accounts of the company (including term deposits, savings, investment accounts and all other accounts) for the last 2 years;
1.2.3the last 12 months of BAS.
1.3in relation to all Trusts or companies that the Wife has or had an interest in (whether directly or indirectly) including in the “V Group” the Wife is to disclose:-
1.3.1a copy of the Trust Deed, if the interest is or was in a trust;
1.3.2the Company Constitution if the interest is or was in a company;
1.4in relation to the V Group which the wife alleges she had an interest in and where she alleges the Group was sold in 2008 and certain dividends were paid form the V Group to her, the wife is to provide by way of documents and information details of the financial relationship that the wife has or had with the V Group. That is:-
1.4.1is or was the wife a shareholder (directly or indirectly)? If the wife had an indirect interest, then she is to identify the person or entity associated with the wife that had or owned the shares in the V Group.
1.4.2is or was the wife a beneficiary of a trust referrable to or connected to or comprising “the V Group”? In the event that the wife was a beneficiary of a trust referrable to the V Group or she is or was the trustee or co-trustee (including as a Director of a trustee company) or is or was an appointor or co-appointor of a trust connected to the V Group, then the wife is to provide full and frank disclosure in relation to the V Group including the provision of all Financial Statements and Income Tax Returns for the V Group for the years ending 30 June 2005 to date.
1.5originals and/or copies of all term deposit statements or records showing funds held in any and all term deposits in the Wife’s name for the period from 1 July 2007 to date;
1.6originals and/or copies of all documents including dividends statements, bank statements and all other records evidencing alleged dividends received by the wife during the course of the parties’ marriage which the wife asserts totalled the sum of $1.6 million;
1.7originals and/or copies of all documents, including dividends statements, bank statements and all other records showing an alleged final dividend received by the wife from the V Group or the M Pty Ltd in February 2008 in the sum of $1.7 million together with all documents evidencing how the wife dealt with the said alleged dividend;
1.8originals and/or copies of all documents evidencing the wife’s contention in her Financial Statement that she received an inheritance in 1980 of $2 million.
1.9originals and/or copies of all source documents (including bank statements, financial statements, tax returns, valuations and all other records) evidencing the property the wife alleges that she had as at the date the Parties commenced cohabitation;
1.10in the event the wife asserts that the $2 million inheritance she received in 1980 was still owned by her at cohabitation and that she brought that into the marriage, then the wife is to provide all financial records showing how she applied the said inheritance from date of the Parties cohabitation to date;
1.11originals and/or copies of all financial records (including bank statements, invoices, contracts, financial statements, tax returns and all other records), evidencing how the wife applied the two Westpac Bank accounts she had as at July 2014 being:-
1.11.1a Westpac Bank eSaver account #...68 in the sum of $160,447;
1.11.2a Westpac Bank Term Deposit account #...84 in the sum of $315,102;
1.12originals and/or copies of all financial records (including bank statements, invoices, contracts, financial statements, tax returns and all other records), evidencing how the wife dealt with her interest in the M Pty Ltd from July 2014 to date in circumstances where in July 2014, the wife asserted that the valuer of her interest in the said company amounted to $869,282;
1.13originals and/or copies of all financial records (including bank statements, invoices, contracts, financial statements, tax returns and all other records), evidencing how the wife dealt with the $150,000 she withdrew in February 2018 from her L Super;
1.14originals and/or copies of the wife’s Income Tax Returns and Income Tax Assessments for the years ending 30 June 2005 to 30 June 2013 inclusive as well as FY2018;
1.15originals and/or copies of all pleadings, orders and all other documents filed in the Supreme Court proceedings and which the wife refers to in her Financial Statement;
1.16the wife respond and provide all disclosure sought in letters from husband’s solicitors to wife’s solicitors of 14 December 2018 (2 letters, copies attached).
(4)That the parties pay equally the cost of the single expert property expert as and when instructed by the single expert property expert to make payment.
...
The proceedings were again before a registrar on 8 April 2019 and 8 May 2019. On 8 May 2019 the wife was ordered to comply with the disclosure order within a further 14 days. Subsequently, and by 3 June 2019, the wife had not complied with the disclosure order and her substantial failure to comply continued until the commencement of the final hearing on 23 January 2020.
The husband further complains that prior to final hearing the wife asserted that during the marriage she had received some $2 million by way of distributions from a family trust. It was regrettable that the issue of distributions that could quite clearly have been resolved by documents remained a live issue at the hearing with neither party producing the relevant joint bank accounts to which it was asserted the distributions were paid.
The husband correctly asserts that at hearing there was a significant issue as to funds totalling about $1.157 million held by the wife in various bank accounts at the time of separation. The primary disclosure orders of January 2019 were intended to resolve the issue as to this position of those funds by way of proper disclosure by the wife. Various contentions by the wife as to the disposition of those funds were made prior to hearing.
At hearing, the Court was satisfied that the wife’s disclosure was “alarmingly lacking and only partially made at trial”. Otherwise, the primary reasons for judgment at [7] observe:
… many of the evidentiary issues could have been resolved by documents that mostly were in the control of both parties especially their long-term joint account. Both parties has (sic) obligations for proper disclosure and discovery. Many requests of the wife for such was not the subject of a proper response. The wife failed to comply with registrar’s orders as to same, in particular, as to her Supreme Court litigation referred to below. Neither honoured that obligation in some significant way until the final trial itself. Otherwise, issues could have been substantially resolved by the issue of subpoena. The necessity for much of the cross examination arose, in part, from poor forensic preparation by both parties”.
A significant portion of trial time was taken up in cross examination of the wife, particularly in circumstances where some documents were produced by her only during the course of the trial.
The husband complains that it was necessary for him to borrow funds for the purposes of funding the final hearing and that he is presently indebted to a lender for the sum of $100,000, plus interest.
More importantly, the husband raises the issue as to his offers of settlement during the course of the proceedings. It is noted that ultimately the available matrimonial pool found to be in the sum of $3.263 million was to be apportioned as to 52.5 per cent to the wife and 47.5 per cent to the husband. Ultimately, the husband retained the sum of $833,789 by way of superannuation and is to be paid $705,000 by the wife.
On 27 June 2019 the husband made an offer of settlement to the wife based on an overall property pool of $4.775 million. The effect of that offer was for the husband to receive property and entitlements to the value of $2,101,000.
Subsequently, on 19 July 2019 the husband made a further offer of settlement similar to the previous offer.
On 20 January 2020, shortly prior to the commencement of the hearing, the husband made an offer of settlement assuming an overall property pool of $4.789 million that represented property and entitlements to him of about $1,724,000.
In support of his application for indemnity costs, the husband provides copy of his costs agreement with his solicitors and his costs agreement with his counsel. He has paid a total of $136,329 in legal fees not including a payment of $1,375 by him to the single expert valuer.
The husband seeks that the Court fix the quantum of costs, if an order is to be made, so as to avoid further cost of the parties in proceeding to assessment.
The wife’s case
The wife, for her part, complains as to significant outstanding financial disclosure during the proceedings by the husband.
She provides a detailed schedule of documents provided by way of her disclosure and discovery during the proceedings. Regrettably, there remains significant outstanding disclosure at the commencement of the hearing by the wife.
The wife asserts that she has paid legal fees in relation to the property proceedings totalling $83,017 to her solicitors to act together with a further $15,400 paid to her counsel.
Relevantly, by letter dated 21 January 2020, immediately before the commencement of the trial, the wife offered to resolve the proceedings on the basis that she pay to the husband the sum of $250,000 and that each party retain their superannuation and other property in their own names. As can be seen, she was required to make an ultimate adjusting payment of just over $700,000 to the husband.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party has legal aid and the terms of any grant of aid;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, 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.
In Collins and Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
Later the Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
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)
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… 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.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that “the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93‑748:
130.If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
Offer to Settle
In Lenova & Lenova (Costs) [2011] FamCAFC 141 the Full Court, Bryant CJ, Coleman and Murphy JJ said:
In this jurisdiction, costs do not “follow the event”; the Act prescribes, relevantly, that “subject to subsection (2) ... each party to proceedings under this Act shall bear his or her own costs”
(s 117(1)). As a result, a litigant, or prospective litigant, cannot rely upon a costs order following upon success in the action as a means of dissuading the other party from pursuing unmeritorious litigation or as a means of seeking to persuade the other party from pursuing litigation.
A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.
That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.
Whilst regard is had to the financial circumstances of the respondent wife, she was advised by legal practitioners at each stage of the proceedings. She can, in our view, be seen to have known the risks of refusing to compromise in the face of a written offer made before the appeal was filed. That factor, together with the husband’s success in the appeal, warrants an order for costs being made in favour of the husband.
Indemnity Costs
The applications before the Court, referred to above are primarily applications for costs on an indemnity basis.
It is usual for the Court to make an order for costs on a party/party basis if costs are to be ordered.
Provisions of the Family Law Rules 2004 (Cth) (“the Rules”), particularly rule 19.18:
19.18 Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
The Rule further provides, in subparagraph (3), that:
(3)In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre‑action procedures; and
(f)expenses properly paid or payable.
The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings.
As the Full Court again said in Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941:
35.Indemnity cost orders are made only in exceptional cases (Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
36.Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise” (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233).
37.In relation to the first category, it has been said that indemnity costs may be awarded where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401) and where “a party persists in what should on proper consideration be seen to be a hopeless case” (J‑Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch & Anor [1993] FCA 70 per French J at 5).
Strickland J in Bele & Vaughan (Costs) [2012] FamCAFC 198 at [26] to [28] on this issue encapsulated the relevant legal principles:
26.A useful recent discussion of the question of indemnity costs is to be found in the decision of the Full Court in D & D (Costs) (No 2) (2010) FLC 93-435. There the Full Court reviewed extensively earlier authorities including Limousin v Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248.
27.The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule exceptional circumstances need to be demonstrated.
28. As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co & Another v Cussons Pty Ltd where his Honour detailed circumstances that might qualify. Usefully, Holden J in Munday v Bowman (1997) FLC 92-784 at 84,660 drew from the decision of Sheppard J the following examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397).
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).
(c)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
The relevant considerations
The wife is currently unemployed and on benefits. She has significant debt in relation to her own costs of the proceedings. The husband is in employment. He has debt in relation to his own costs of the proceedings.
The assets and liabilities of the parties are as a consequence of the final property orders and set out in the primary reasons for judgment.
Whist both parties make complaint as to the others interlocutory conduct in the proceedings, it is of note that the Court commented in the final reasons as to the lack of forensic application in preparation for trial.
The proceedings were necessitated by the parties’ inability in the case that was mainly determined on documentary evidence, to properly address their respective obligations for disclosure and discovery as referred to above.
The husband contends that the wife was wholly unsuccessful. There is no foundation for such a contention. In Anison & Anison [2019] FamCAFC 108; (2019) FLC 93-908 the Full Court said:
36. As it appears in the section paragraph (e) provides as follows:
117 Costs
…
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
…
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
…
37.It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed. In the oft-cited authority in this area of Robinson and Higginbotham earlier referred to, Nygh J (with whom Simpson & Smithers JJ agreed) said:
Her Honour then makes a reference to the question of which party was wholly successful but, of course, as counsel for the wife rightly submitted, paragraph (e) deals with a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.
This is not such a case.
None of the offers of settlement referred to above give rise to any issue as to costs that might displace the general rule.
In all of the circumstances there is no proper basis for displacing the general rule as to costs on any basis.
The applications will be dismissed.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 3 September 2020.
Associate:
Date: 3 September 2020
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