Tumlin and Tumlin

[2018] FamCA 43

FAMILY COURT OF AUSTRALIA

TUMLIN & TUMLIN [2018] FamCA 43

FAMILY LAW – COSTS – Where the wife seeks orders for the husband to pay her costs of the substantive proceedings relating to both parenting and property – Where the husband seeks that the wife’s application be dismissed – Where neither party was wholly successful or wholly unsuccessful in the parenting and property orders they sought – Where the most significant considerations are the offers made by the wife in the property proceedings and the husband’s significantly stronger financial position – Where it is not necessary to draw any conclusions in respect of the conduct of the parties in the property proceedings – Where there is nothing in the material presented by the wife that attracts an order for indemnity costs – Where an order is made for the husband to pay the wife’s costs of the property proceedings from the date of the first offer made by the wife to the date of the final orders on a party/party basis as agreed or assessed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Browne v Green (2002) FLC 93-115
Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Prantage & Prantage (2013) FLC 93-544
Robinson and Higginbotham (1991) FLC 92-209
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Ms Tumlin

RESPONDENT: Mr Tumlin

FILE NUMBER: SYC 948 of 2012

DATE DELIVERED: 2 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 17 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr MacPherson

SOLICITOR FOR THE APPLICANT: WMD Law

COUNSEL FOR THE RESPONDENT: Ms Picker

SOLICITOR FOR THE RESPONDENT: Otto Stichter & Associates

Orders

1. The husband is to pay the wife’s costs of the property proceedings from 23 May 2012 to 12 October 2016 on a party/party basis as agreed or assessed.

2. The wife’s application for costs (including for the costs of her application for costs) is otherwise 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 Tumlin & Tumlin 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 SYDNEY

FILE NUMBER: SYC 948  of 2012

Ms Tumlin

Applicant

And

Mr Tumlin

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of Application in a Case filed 8 November 2016 the wife seeks orders for the husband to pay her costs of the substantive proceedings relating to both parenting and property on an indemnity basis as agreed or assessed. In the alternative, the wife seeks that the husband pay her costs:

   1.1.In the sum determined by the court; or

   1.2.On a solicitor/own client basis as agreed or assessed; or

   1.3.On a solicitor/client basis as agreed or assessed; or

   1.4.On a party/party basis as agreed or assessed.

2. The wife also seeks an order that the husband pay her costs of and incidental to this application. 

3. The husband seeks that the wife’s application be dismissed and that the wife pay his costs of and incidental to this application.

4. Both parties, particularly the wife, rely upon extensive documentation. Objection was successfully taken to an exhibit the solicitors for the wife attempted to tender at the hearing setting out the costs and disbursements incurred by the wife after each offer of settlement was made and to an affidavit filed out of time by the wife’s solicitor on 14 August 2017. Objection was also successfully taken to an affidavit filed out of time by the husband on 7 August 2017.

5. I record in my Reasons for Judgment of 12 October 2016 that the husband had paid $328,167 in legal fees and the wife had paid $426,844 in legal fees.

6. The wife says her overall solicitor client costs and disbursements were ultimately in the sum of $737,152.00.

APPLICABLE LAW

1. Pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) each party generally bears their own costs of the proceedings.

2. An order for costs can be made by the court if it is satisfied that there are circumstances to justify them doing so (s 117(2) of the Act).

3. The matters which the court shall have regard to in determining what if any order is to be made under s 117(2) are set out in s 117(2A) of the Act.

4. The relevant considerations in this case pursuant to s 117(2A) are:

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

   …

   (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;

   …

   (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

THE FINANCIAL CIRCUMSTANCES OF THE PARTIES

1. The property settlement order made on 12 October 2016 altered the net assets of the parties so that the husband was entitled to $4,157,768 (65 per cent in net assets) and the wife was entitled to $2,238,798 (35 per cent in net assets) (both of these figures including paid legal fees). In order to achieve that outcome the order required the husband to pay the wife $1,544,742. The parties have for the purposes of this application filed evidence updating their financial circumstances.

2. The wife’s Financial Statement filed 30 January 2017 indicates that she receives a weekly income of $2,554 (with total salary before tax of $1,882 per week) and has total expenditure of $1,738. She owns total property valued at $1,420,997; superannuation of $191,492 and has liabilities of $10,000 (which is a personal loan owed to the wife’s mother).

3. The final orders made on 12 October 2016 provided for the parties’ child, aged 13, to live with the wife. The wife and the parties’ child live with the wife’s mother. The wife’s Financial Statement indicates that she was in receipt of $212 per week from the husband by way of child support. The submissions filed by the wife assert that an affidavit filed by the wife’s solicitor on 13 March 2017 indicates that the husband pays child support of $19 per week. However, the Child Support Assessment annexed to that affidavit indicates that the husband was assessed to pay a weekly rate of $211.54 in child support for the period 1 September 2016 to 11 January 2017. A Child Support Account Statement for the period 17 June to 20 July 2017 indicates that the husband owes $501.33 for that period (Exhibit 22).The husband says that following the parties’ separation on 10 January 2012 he was assessed to pay child support and has made such payments since this time.

4. The husband is employed as a tradesman and earns $980 per week with regular outgoings of $904 per week. The husband anticipated that he may become redundant following a merger. He sets out his financial position which indicates that he has $2,755,235 in assets with no liabilities. He lives by himself. However, the wife successfully points to errors in the table of assets at paragraph [49] of the husband’s affidavit filed 24 February 2017:

   14.1.The husband has listed the Suburb E property as having a value of $1,300,000 when the value determined at the final hearing was $1,400,000;

   14.2.The husband has listed his 50 per cent share of the J Street property as $900,000 when the value determined at final hearing was $925,000;

   14.3.The husband has not included his interest in the Suburb M property in the table which had a value determined at final hearing of $590,000.

5. When these amendments are made, the husband’s current assets increase from $2,755,235 to $3,470,235 (or $3,451,000 if his Credit Union account has a value of $6,000).

6. The husband’s affidavit filed 24 February 2017 states that at that time the husband held $25,235 in a Credit Union account. However, the husband’s Credit Union transaction account for the period 1 to 16 August 2017 was tendered showing a balance of about $6,000 at 16 August 2017 (Exhibit 23). The opening balance on 1 August 2017 was about $17,000.

7. The husband points to paragraph [248] of the Reasons for Judgment dated 12 October 2016 where it was found that the husband had a greater income than the wife owing to income he received from investments and shares. The husband says the situation arising from the implementation of the property orders is that the wife’s income is now more than two and a half times that of the husband.

8. Nonetheless I find, based upon the net assets held by each of the parties, the husband is in a significantly stronger financial position than the wife.

THE CONDUCT OF THE PROCEEDINGS

1. The wife submits that the husband’s conduct and that of his solicitors significantly increased the costs incurred by her. The husband overall joins issue with the allegations made by the wife. Neither party sought to test the other in relation to their evidence about the conduct of the proceedings with both parties relying upon documents annexed, primarily being documents generated by their respective lawyers. The allegations made by the wife include:

   19.1.The husband failed to provide initial disclosure and more significantly failed to provide financial disclosure throughout the proceedings.

   19.2.The husband failed to serve her in a timely manner with certain documents including an Application in a Case and subpoenas and that consequently she was not made aware by the husband of subpoena hearings.

   19.3.The husband failed to comply with orders for the parties to do certain things to progress the matter and his non-compliance with certain orders meant that the matter could not be progressed toward a final hearing.

   19.4.The husband was uncooperative in taking steps necessary to prepare the matter for a conciliation conference.

   19.5.The wife incurred costs associated with a report by a town planner, Mr JJ, to advise whether a s 149D Building Certificate would be issued for the Suburb E property (following receipt of advice by the single expert valuing that property to do so). The wife asserts her solicitors attempted to follow up with the husband numerous times to their request that the husband allow Mr JJ to access the property.

2. The husband responds by saying:

   20.1.The delays in proceeding to a final hearing were as a result of delays in obtaining realty valuations and were not delays on his part.

   20.2.He denies that he was uncooperative in relation to the preparation for the conciliation conference. He says there was ongoing and regular communication between the solicitors in relation to the identification of the assets in the matrimonial pool; further disclosure by the parties; valuations of assets; whether existing valuations could be used and the preparation of a joint balance sheet. Correspondence annexed to the wife’s solicitors affidavit filed 2 February 2017 at [17] seems to indicate that there was communication as described by the husband but the wife’s solicitors do respond in some of those letters advising the husband that they had already provided information which he sought.

   20.3.He declined to pay for half of Mr JJ’s fees as he says evidence of Mr JJ was of limited value and he was unable to definitively state whether or not there were council approvals in place. At [178] of the Reasons I conclude Mr JJ’s evidence was “to the effect that in the event that there was a lack of council approval for works done at the property, any necessary approval would be able to be obtained with relative ease.”

3. The wife specifically complains that during the course of the proceedings, the father filed a number of interim parenting applications in respect of which he was either unsuccessful or he did not pursue. The wife says she incurred significant costs in responding to those applications and for lawyers and counsel to prepare and attend interim hearings. Specifically the wife complains about the following history:

   21.1.The husband filed an Application in a Case on 27 May 2013 seeking orders to spend time with the child and for the child to submit to parentage testing. The parties attended court on 13 August 2013. On that occasion the husband did not press his application for time and the issue was adjourned to the first day of the final hearing. The wife consented to parentage testing.

   21.2.On 29 January 2014 orders were made to the effect that if the husband wished to press an interim application for time, he could do so after the release of Dr FF’s report. Dr FF’s report was released on 5 June 2014. Dr FF opined it would be distressing for the child to spend time with her father prior to the final hearing.

   21.3.On 23 October 2014 a notation was made that the father had not taken up the opportunity to make an interim application for parenting orders but that he intended to press his application for time at the final hearing. At that time the father reasonably assumed that that final hearing would take place well before it actually did. The overall matter was delayed because of a combination of factors, particularly relating to the preparation of the property proceedings for hearing.

   21.4.On 21 September 2015 the husband filed an Application in a Case to spend time with the child on an interim basis. That application was heard by Senior Registrar Campbell on 20 November 2015 and was dismissed. Although my attention has not been drawn to any reasons given by Senior Registrar Campbell I assume that no interim order was made in November 2015 because a hearing was anticipated in the following year and because of the opinion expressed by Dr FF in relation to any interim application. The Senior Registrar reserved the wife’s costs.

   21.5.Ultimately the final hearing did not take place until August 2016.

4. Given that history, I am not of a view that a costs order should be made against the father in relation to the interim proceedings in which he was attempting to obtain an order for some time with the child notwithstanding that he originally did not pursue the interim application on the basis that he thought the matter would come on for trial on a final basis nor because he was unsuccessful before Senior Registrar Campbell.

5. The wife says she has about 10 folders containing correspondence in this matter from January 2012 to October 2014 after which time her solicitors moved to a paperless office. The wife’s solicitors assert that they frequently received letters from the husband’s solicitors repeating allegations and queries which had previously been answered and which were at times “inflammatory and unhelpful” for example, issues in relation to issuing a subpoena to the wife’s mother; the husband’s desire to challenge the valuation of the Greek property (which he did not ultimately do); accessing the Suburb T property to obtain an appraisal and requests for disclosure included in material produced to the court in response to a subpoena issued by the husband. They say that each letter had to be responded to incurring cost to the wife. The wife’s solicitor gives the following examples:

   23.1.The wife’s solicitors received numerous letters from the husband’s solicitors from February 2012 to June 2012 in relation to an allegation that the wife had kept some or all of the money she withdrew from the parties’ bank accounts throughout their marriage. The husband says that the allegations as to the wife’s withdrawals of monies from accounts during the marriage were relevant in determining the assets of the parties and the wife often did not respond to letters sent by the husband’s solicitors necessitating repeated requests for information.

   23.2.The husband made repeated requests for the wife to provide details about every cash payment made between her and her mother in terms of financial assistance she says her mother provided to her during the marriage. The wife also says the husband made repeated requests to draw into the proceedings a share of the property owned by the wife’s mother in Suburb G which the wife objected to. The wife incurred expenses of having the property valued by a single expert twice. The husband says it was proper of him to raise these matters as they were relevant to the financial history of the parties’ relationship and went to issues of entitlements. He says the need to carry out a second valuation arose because of the passage of time since the first valuation. The husband denies that requests for information were simply repeated requests. He says ongoing communications between the solicitors “may sometimes have raised items that had been raised before but usually in the context of asking or raising additional aspects”. He says “that occasional requests for something that may have been provided in the past is not unreasonable” in the context of the matter where there were numerous issues in dispute.

6. At the final hearing the husband pursued his assertion that the wife had withdrawn money from bank accounts but that contention was not accepted by me (see [198] to [203] of the Reasons). I took into account the contributions made by the wife’s mother as a financial contribution made on behalf of the wife. The husband pursued at the final hearing the allegation that the wife had an interest in her mother’s property at Suburb G. I found that the wife held no beneficial interest in that property and that item was marked as nil on the balance sheet (see [197] of the Reasons).

7. It is not uncommon in property proceedings, particularly where there is a significant lack of trust between the parties, for a line of inquiry about facts solely within the knowledge of the other party, to be explored but then either ultimately abandoned or unsuccessfully pursued at trial. It does not necessarily mean that a party, put to the expense of discovery of documents relevant to such a particular line of inquiry, is entitled to be reimbursed for those expenses. It should also be noted that the wife herself ran arguments at the trial which were unsuccessful and in particular the wife’s submissions pursuant to the principles articulated in Kennon were not successful (see [235] – [236] of the Reasons).

8. In any event, for reasons set out below I do not need to form any detailed conclusion about the wife’s complaints about the husband’s conduct in the property proceedings, as a substantial order for costs in respect of the property proceedings will be made in the wife’s favour based upon other grounds.

WHETHER A PARTY TO THE PROCEEDINGS HAS BEEN WHOLLY UNSUCCESSFUL

1. The wife submits that the husband was wholly unsuccessful in relation to his application to spend time with the parties’ child. The husband submits that the fact that he was not successful in his parenting application, does not mean his application was necessarily unmeritorious. At the final hearing the parties agreed to parenting orders as set out at [2] of the Reasons for Judgment. The major remaining controversy was the time the child was to spend with the husband. The wife sought an order that the husband spend no time and have no communication with the child but the husband opposed that order and sought that there be no order made about the child spending time and communicating with the husband. The order that was made was for the wife to facilitate any contact between the child and the husband if the child sought that contact.

1. The husband submits that neither party was wholly successful or wholly unsuccessful as to property. The husband sought an overall adjustment to the wife of about 20 per cent of the net assets and the wife sought an adjustment such that she receive 45 per cent of the total net asset pool. Assets were divided as to 65 per cent to the husband and 35 per cent to the wife.

2. Whilst it might be said neither party was wholly successful in the parenting and property orders they sought, neither party was wholly unsuccessful.

OFFERS OF SETTLEMENT

1. On 12 October 2016 property settlement orders were made for the husband to pay to the wife the sum of $1,544,742 and for default sale provisions to be enlivened if he did not do so; the wife to retain her property in Greece and the husband to retain the parties’ other three properties (D Street, Suburb E; L Street, Suburb M and a 50 per cent share in J Street, Suburb K property) (affecting a distribution as to 65 per cent to the husband and 35 per cent to the wife). The parties were to otherwise retain the assets in their sole name. A property at Suburb T in the wife’s sole name was previously sold in October 2012 and after the discharge of mortgage the net proceeds of sale were received by the wife.

2. Between May 2012 and April 2016 a number of offers were made by the wife in an attempt to settle the property proceedings. Those offers were made on the basis of a distribution identical to that made as a result of the final order. The only variable that differed in those offers was the amount that the husband was to pay the wife.

3. The wife obtained evidence from Mr NN, a Fellow of the Actuaries Institute and a Senior Consultant. He provided an expert report dated 17 March 2017 which calculates the value of the wife’s various offers as adjusted by both the Consumer Price Index (“CPI”) and cash rates as compared to the judgment amount of $1,544,742 to provide a present day value calculation of those offers as at 15 August 2016. The following table sets out the details of the wife’s offers:

Date of Offer	Amount of Offer	August 2016 value on CPI	August 2016 value on cash rate
23.5 12	$650,000	$707,148	$718,774
2.7.12	$1,420,000	$1,541,166	$1,564,659
19.12.12	$1,420,000	$1,517,839	$1,542,408
23.12.13	$1,150,000	$1,176,083	$1,188,390
5.4.16	$1,500,000	$1,510,784	$1,509,716

1. It can be seen that all of the offers made by the wife (except one which is slightly over) are less and some substantially less than the result the wife received at trial.

2. The husband submits that the offers made by the wife were dependent on the extent of disclosure on the date the offers were made. He says at various times that offers were made disclosure and valuations were still incomplete. He says there were various valuation issues throughout the proceedings. The value of the Suburb E property, for example, was determined at [178] of the Reasons for Judgment as it was subject to two valuations of a single expert. The wife in response says that all items of real property referred to in the balance sheet at the final hearing had been valued prior to 5 April 2016. The wife says the wife’s updated disclosure had been provided to the husband on 1 December 2015.

3. Also relevant to the s 117(2A)(f) considerations are the woefully inadequate offers made by the husband on the basis of a distribution identical to that made as a result of the final order. On 21 May 2012 the husband made an offer for the husband to pay $188,000 to the wife; on 7 December 2012 an offer for him to pay $400,000 to the wife and on 22 January 2014 an offer for him to pay $625,000 to the wife.

4. The husband submits that he was emotionally attached to the parenting issues even up to the first day of the hearing and could not separate the two issues in order to instruct settlement.

5. Final parenting orders were made for the parties’ child live with the wife. Orders were otherwise made for the child to live with the wife and for the wife to facilitate any contact between the husband and the child as sought by the child.

6. The wife made offers to settle the parenting case on 23 May 2012 and 2 July 2012. The wife’s proposal was that she have sole parental responsibility of the child and the child live with her. The wife also sought an order that the husband consent to ADVO orders protecting the wife, the child, the maternal grandmother and maternal uncle to remain in place until the child turned 18 years. The husband says the parenting orders proposed by the wife were unacceptable to him at that time.

7. The husband made an offer in relation to parenting on 7 December 2012 for the parties to have equal shared parental responsibility, for the child to live with the wife and spend alternate weekends and half of school holidays with the husband. The husband also made an offer in relation to parenting on 22 January 2014 that if the wife accepted the property offer (for him to pay the wife $625,000) the husband would not attempt to approach or contact the child until she turned 16 years of age.

8. The purpose and effect of s 117(2A)(f) was summarised by Nygh J in Robinson and Higginbotham (1991) FLC 92-209 at 78,417:

   ...paragraph (f) does not have any particular priority, but its importance must surely be weighed in the light of all the circumstances of the case...

   …when one looks at paragraph (f) it is quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this Court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.

9. The Full Court in Browne v Green (2002) FLC 93-115 stated at 89,163 that:

   57. We think that whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given.

10. Every offer made by the wife, except that made on 23 December 2012, is below the amount awarded on a final basis. She submits that the husband’s refusals of her offers were imprudent.

11. Offers were made by the wife in a formal form and the husband should have been on notice that they were to be taken seriously.

12. The fact that the husband did not accept or even seemingly seriously consider the offers made by the wife is a weighty consideration in the wife’s application for costs in the property proceedings, at least for the period covered by the date of the offers.

SHOULD AN ORDER FOR INDEMNITY COSTS BE MADE?

1. The wife’s application seeks that the husband pay her costs on an indemnity basis. She asserts that such costs are in the sum of $737,152.75.

2. While the court clearly has a power to award indemnity costs, as opposed to costs on a party/party basis, it is an exceptional case in which indemnity costs are awarded (Kohan & Kohan (1993) FLC 92-340).

3. In Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248, Sheppard J referred to the courts’ “settled practice” that where the court orders one party to pay another party’s costs, the order is for costs to be paid on a party/party basis. His Honour went on to say “there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice.”

4. In Colgate Palmolive Sheppard J identified the following instances where an indemnity costs order might be made:

   48.1.Allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

   48.2.Evidence of particular misconduct that causes loss of time to the court and the other parties;

   48.3.The fact that the proceedings were commenced or continued for some ulterior motive;

   48.4.The making of allegations which ought never have been made or the undue prolongation of a case by groundless contentions;

   48.5.An award of costs against a contemnor.  

5. In Munday v Bowman (1997) FLC 92-784, Holden CJ highlighted at 84,660 the following examples of circumstances where indemnity costs may be awarded:

   (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.

   (b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.

   (c) Evidence of particular misconduct causing loss of time to the court and to other parties.

   (d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.

   (e) An imprudent refusal of an offer to compromise.

   (Citations omitted)

6. This list is not exhaustive, and it is clear that each case shall be assessed on its individual merits (Yunghanns v Yunghanns (2000) FLC 93-029).

7. In Prantage & Prantage (2013) FLC 93-544, the Full Court made it clear that the fundamental principles applying in other jurisdictions to the awarding of indemnity costs also apply in this jurisdiction.

8. I am not satisfied, despite the voluminous material filed by the wife, that any part of the material filed by the wife, attracts an order for indemnity costs.

CONCLUSION

1. The husband seems to submit that as there was no order for costs made in the final orders of October 2016 and there was no invitation for the parties to seek costs orders no orders for costs can be made. That clearly is not so (see Rule 19.08(2)(b) Family Law Rules 2004 (Cth)).

2. The Full Court in Fitzgerald v Fish and Anor (2005) 33 Fam LR 123 at [41] said:

   …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.

3. In this case the compelling consideration are the offers made in the property proceedings under s 117(2A)(f). I also take into account the fact that the husband is in the significantly stronger financial position in terms of assets held by each of the parties. As indicated above, given that I intend to make an order for costs in relation to the property proceedings in the wife’s favour based upon those considerations it is not necessary to draw any conclusions in respect of the conduct of the parties in the property proceedings.

4. I will make an order that the husband is to pay the wife’s costs of the property proceedings from 23 May 2012 to 12 October 2016 on a party/party basis as agreed or assessed. The wife’s application for costs is otherwise dismissed. Whilst the wife has been partly successful in this costs application she has not been wholly successful. That is the most significant s 117(2A) consideration in this application and accordingly no order will be made for costs in relation to the wife’s costs application.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 February 2018

Associate: 

Date: 2.2.2018