Tyrell & Tyrell (No 2)
[2022] FedCFamC2F 1466
Federal Circuit and Family Court of Australia
(DIVISION 2)
Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466
File number(s): CAC 103 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 November 2022 Catchwords: FAMILY LAW – COSTS - Parenting and property – costs dealt with by consent by written submissions after delivery of final judgment – Wife seeks Husband pay her costs of the financial proceedings only with no account of the parenting aspect of the litigation – fraudulent and misleading conduct by the Husband established at trial – significant additional costs incurred due to obfuscation and evasion of Husband – lack of disclosure by the Husband and his solicitor – offer of settlement not responded to by Husband – costs sought on alternative bases for either fixed sum of $200,000 or indemnity basis as agreed or taxed – Wife represented on deferred fee basis – Husband ordered to pay costs Legislation: Family Law Act 1975 (Cth) s 117(1). 117(2) Cases cited: Byrnes v Kendle (2011) 243 CLR 253
Change v Su (2002) 170 FLR 244
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Hawkins & Roe [2012] FamCAFC 77
Leslighter v Fitzgerald-Stevens (2013) 47 Fam LR 384
Orr v Ford (1989) 167 CLR 316
Tyrell & Tyrell [2022] FedCFamC2F 1214
Stephens v Stephens (2011) 44 Fam LR 117
Wrenstead & Eades (2016) FLC 93-697
Division: Division 2 Family Law Number of paragraphs: 30 Date of last submission/s: 5 October 2022 Date of hearing: On the papers in Chambers Place: Canberra Counsel for the Applicant Mr R Thomas Solicitor for the Applicant Falcon Legal Canberra Counsel for the First Respondent Ms R Curran Solicitor for the First Respondent Farrar Gesini Dunn Solicitor for the Second Respondent Fitzgerald Naylor Lawyers Solicitor/Advocate as the Independent Children’s Lawyer Mary Burgess ORDERS
CAC 103 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TYRELL
ApplicantAND: MS TYRELL
First RespondentMS B TYRELL
Second RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
2 NOVEMBER 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth), the Applicant pay the First Respondent’s costs of, and incidental to, the financial proceedings, fixed in the sum of $155,000.00, being $125,000.00 for solicitor’s costs and $30,000 for Counsel’s fees by no later than 31st January 2023.
2.In the absence of any Application by the Applicant or his lawyer within 14 days, being by 16 November 2022, pursuant to Order 28 of the Orders dated 14 September 2022 in relation to the “Mr F” issue detailed in the principal judgment, the Applicant and his lawyer must jointly pay the First Respondent the sum of $8,500.00 by 20th December 2022.
AND THE COURT NOTES THAT:
A.If the Applicant and the Second Respondent apportion these costs between them, the Applicant is to pay two-thirds and the Second Respondent pay one-third.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Tyrell & Tyrell (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
On 14th September 2022, the Court pronounced Orders and published detailed reasons (“the primary/principal judgment”) regarding both parenting and property issues between the parties.[1]
[1] Tyrell & Tyrell [2022] FedCFamC2F 1214.
Pursuant to Orders made in the primary or principal judgment, all three parties have filed written submissions (but not the Independent Children’s Lawyer (“the ICL”)) regarding costs. The Applicant Father/Husband and the Second Respondent paternal Grandmother (“the Grandmother”) filed separate submissions but which were, in many significant respects, very similar if not relevantly or substantively identical. All parties consented to the issue of costs being determined “on the papers”, including written submissions.
Understandably and fairly, the Grandmother submitted that any consideration of costs be distinguished, and if to be awarded, determined separately, as between parenting matters and property matters. Further, the Grandmother noted that, formally, she was not privy to or directly involved in the parenting issues, and that she was joined to the proceeding relatively late in the proceeding. Further still, the Grandmother submitted that any costs, if awarded, should relate only to costs incurred only since she was joined as a party.
The Applicant and the Second Respondent both submitted that (a) their primary position was that each party should bear his or her own costs, and (b) the costs sought by the First Respondent Wife were substantial and disproportionate to the costs of the Applicant and Second Respondent Grandmother.
In light of the findings set out in the principal judgment, which were adverse to the Husband, the paternal Grandmother, and in certain limited respects, the Husband’s solicitor, there should be a costs Order in the Respondent Wife’s favour.
Overview of relevant findings
From the principal judgment, I need only highlight the following matters.
First, at [8], I stated:
Regarding property, summarised, the issues were: (a) the long marital relationship between the parties (25 years or thereabouts); (b) for the entirety of the relationship, the parties lived in a residence (“[D Street, Suburb E]” or “the [D Street, Suburb E] property”); the paternal Grandmother lived [and lives] two doors down from this property, which passed to the paternal Grandmother upon the death of her Husband, the paternal Grandfather; (c) the Husband regularly represented to the Wife, and to multiple third parties, that he owned the property in which he and the Wife lived; and (d) neither party earned much, if any, income during the relationship and both were given access to a joint account, which was in the name of the Husband and the paternal Grandmother, from which they drew funds regularly, without limit, for daily and other expenses. The funds in this account came from the Grandmother.
Secondly, at [10] and [11], I stated (emphasis added):
[10] There is essentially irrefutable evidence of the Husband signing multiple documents in relation to financial matters, mostly without either reading, and certainly not understanding, them, which were either misleading or fraudulent – or both. As he said many times in his evidence: “paperwork” is not a strong suit of his, and pretty much anything that was put in front of him by anyone he signed, whether he understood the document and its import or not. Invariably, he did not comprehend its import at all. His reading and comprehension capacities were low; indeed, his comprehension was dangerously poor, as the evidence below highlights. For example, he was quite untroubled by his lack of comprehension regarding documents that related to seeking finance for a car, and in relation to changing names on documents of title to land, to name only a couple of rather important issues in which he acknowledged in the course of his oral evidence that the information he gave to relevant bodies was patently wrong or similarly false.
[11] The Husband and his aged Mother argued strenuously that the marital residence (and the funds in the “joint account”) should be excluded from the property pool as an asset of the parties. Curiously perhaps, they studiously avoided addressing directly the Wife’s contentions that (a) the Husband repeatedly, and often publicly, represented (and recorded in various documents) that the marital residence was owned by him, (b) the parties lived in the same residence for the duration of their long marriage, and (c) even when on formal notice from her then solicitors about changing the name on the title of the marital residence from the Husband’s to her own name as long ago as 2014 and 2015, the paternal Grandmother did not do so. She did nothing to rectify the title deed to the [D Street, Suburb E] property for at least the last 8 years, and she was aware that the Husband regularly represented to third parties that he was the owner of this property.
Thirdly, at [13] – [15] of the principal judgment, I said:
[13] Further, the conduct of the paternal Grandmother, and the Husband in particular, in relation to the [D Street, Suburb E] property over such a long period of time precludes them, on the basis of principles of estoppel set out below, from now asserting (as they do) that the Wife has no claim at all on that property in any relevant respect. In all of the circumstances of the matter here, not least being the 25 years of largely uninterrupted residence at the property, and the contributions to the family (detailed later), it would be unjust and inequitable for the Husband’s (and paternal Grandmother’s) argument in this regard to succeed against the Wife.
[14] In effect, the Husband’s argument, and rather likewise for the paternal Grandmother, was that (a) the primary asset/financial resource(s) should be excluded from the pool and removed from any possible access by the Wife, and (b) apart from begetting, delivering, raising and home schooling the children, and for the most part, being a supportive Wife to the Husband (who had little, and has little, resources of his own in any relevant respect), the Wife should get almost nothing for her contributions and all else as a result of the 25 years of marriage. The Husband’s and paternal Grandmother’s arguments against the Wife, regrettably, were astonishingly niggardly and utterly scurvy-like. Put another way, on the Husband’s argument (supported by his Mother), there were few bones or scraps that could or should be left for, or made available to, the Mother and Wife from the reasonably, and comfortably, well-adorned table of the Grandmother from which the Father and Husband, throughout his life, has always supped without limit.
[15] The calculated parsimony of the Husband and his Mother was especially clear in their respective attempts to put any and all assets (or financial resources) beyond the reach of the Mother. Added to this conduct, full, [Mr Tyrell] and ongoing financial (and other) disclosure (which included copies of the Grandmother’s most recent Will, which excluded the Husband as a beneficiary, and which had been prepared by her then lawyer who now formally acts for the Husband) was a regular failure on behalf of the Husband, in particular, and his lawyers.
For completeness and ease of reference, the rest of the longish introduction to the primary judgment, [17] – [25], is set out below. It summarises the principal findings throughout the rest of the judgment and the evidence for them. Those paragraphs are as follows:
[17] All of this said, the adjustment would likely have been somewhat higher on the Husband’s side in the light of the substantial and ongoing financial contributions, not by, but on behalf of, the Husband by his Mother, the Second Respondent Grandmother. The reason why it is not as high as it might have been arises from the conduct of the Husband and his Mother, particularly in their significant failure to disclose relevant documents, which include the Grandmother’s testamentary material. This was made more egregious because (a) the Husband’s current lawyer acted for the Grandmother regarding said testamentary documentation but did not disclose or provide this material until after the final hearing concluded, (b) similarly, multiple requests by the Wife’s solicitors seeking disclosure, as set out in the Wife’s Affidavit filed 14th September 2021, and (c) the still undisclosed whereabouts, use of, and access to, the funds removed by the Husband (or the Grandmother) from the “joint account” in late December 2019. According to authority discussed later in these reasons, for example by the Full Court in Chang v Su at [69] and [70] (internal citations to other authorities omitted; emphasis added):[2]
[2] Chang v Su (2002) 170 FLR 244.
… However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.’
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[18] The Father and his Mother have been less than forthcoming in relation to important documentation and financial information generally. The Father’s lawyer also has aided the “obfuscation and evasion” by not providing documents that she plainly had in her possession because she acted for the Grandmother when preparing (and witnessing) her Will in December 2019, and a Codicil in December 2020.
[19] Orders were made after the Final Hearing on 13th May 2022 directing the Father’s lawyer to provide all documents in her possession and control received from the Grandmother’s former lawyers. Those lawyers ceased acting for the Grandmother in 2015. I need not detail the various correspondence and the like that followed these Orders except to note that from the large number of documents produced, the following matters are clear – but only became so after the hearing, which also confirms that information directly relevant to the financial position of the Husband, and in turn the paternal Grandmother, was not disclosed until after the hearing pursuant to Orders made by the Court on 13th May 2022:[3]
[3] The correspondence referred to here is part of the Mother’s second Tender Bundle, dated 27th May 2022. It is formally tendered and assigned the Exhibit number, CR5.
(a) By letter dated 7th April 2014, the Grandmother’s then lawyers confirmed that it was the view of the Husband’s bankruptcy trustee that the Change of Name form regarding the [D Street, Suburb E] property was fraudulent, and that in providing a sworn declaration as he did, the Husband committed a criminal offence;
(b) By letter dated 2nd April 2014, the same lawyers confirmed that, at that time, (i) the Grandmother was not aware that [Mr Tyrell] had transferred the [D Street, Suburb E] property into his own name; (ii) [Mr Tyrell]’s illegal conduct regarding the transfer of title to this property exposed him to one or more criminal charges; (iii) [Mr Tyrell] is recorded as having urged his Mother to provide evidence of his criminal misfeasance; and (iv) the Grandmother gave instructions not to expose [Mr Tyrell] to possible criminal prosecution;
(c) By letters dated 7th April 2014 and 11th August 2015, the Grandmother’s then solicitor advised and sought instructions for the [D Street, Suburb E] property to be transferred into her name. Those instructions were never provided.
[20] This correspondence (and other documentation set out later in these reasons) makes plain that from April 2014, the Grandmother, and the Applicant Husband, were both aware that the [D Street, Suburb E] property was registered in the latter’s name, and that this had occurred by his fraudulent conduct (also set out in detail below). This fraud, and the circumstances by which it occurred, nor the correspondence just referred to, was recorded in any material filed by either the Husband or his Mother. This is also in circumstances where the Grandmother’s former solicitor, now the Husband’s solicitor, had this documentation in her possession since approximately September 2021. It was not disclosed until May 2022. It was not disclosed in any of the Affidavits filed by the Husband or his Mother. Further still, the information set out in the 2014 and 2015 letters from the Grandmother’s former lawyer makes the Husband’s generalised evidence regarding the [D Street, Suburb E] property, and his bankruptcy, in his Affidavit dated 14th September 2021, especially at pars.24 – 30, 31 – 36, and 62 – 73, inaccurate, erroneous and misleading. How and when, if at all, the Husband’s lawyer checked on the accuracy of her client’s material, particularly once the former solicitor’s records became available in September 2021, was never explained. In my view, “obfuscation and evasion” were writ large in the material provided, and even more so in the material not disclosed, by the Applicant Husband and his Mother.
[21] The “obfuscation and evasion”, if not worse, was also plainly evident in the parenting side of things. Indeed, it was compounded by the Father’s lawyer urgently arranging interviews for the children with an external expert, only three weeks after the incident that led to the Mother no longer living in the former marital residence after 25 years or so, and before these proceedings had even been filed. The comments made by the children about the Mother strongly indicate that they had been coached and provided with information that could only have come from the Father. No less troubling is that the Mother was never told of this action to arrange interviews with the children with a family consultant. The interviews took place not only without the Mother’s knowledge but also without any input from her.
[22] As is plain later in these reasons, I took a very dim view of the Father’s evidence. He was an astonishingly poor witness. However, what is more than a little curious bordering on the disturbing is that among the recently disclosed material there is SMS correspondence between the Husband and his lawyer. As relatively brief as it is, there are few if any spelling mistakes but rather “slick” engagement, and easy familiarity with his engagements with the Bank. This is in stark contrast to his fumbling and bumbling evidence during the trial about his dealings with the Bank. As noted later, the Father also gave evidence that but for the incident in December 2019, the family would likely have stayed together and carried on with their lives because they all were “good actors.” When coupled with the recent “smooth” if not “slick” and easy correspondence between the Father and his lawyer, the Father’s evidence at the hearing may have to be assessed as somewhat more of an act to ensure that the Wife (and Mother) was deliberately removed from his life, from the lives of the children, and that she had no access to any of the “family assets.”[4] Put another way, he was perhaps not (and is not) quite as bumbling and fumbling and uncomprehending as he often made himself out to be at the hearing. Certainly his Affidavit evidence was less than precise, especially in the light of the post-hearing disclosed material from 2014 and 2015. Moreover, in his Affidavit material, he even indicated that he knew about the [D Street, Suburb E] property being in his name as long ago as 2010. However, as somebody like a more modern “artful dodger”, he could be very “flexible” in his evidence. For example, sometimes he contended that this property was in fact his (when seeking funds), but at other times he argued strongly that it was not his property (e.g. for the purposes of his bankruptcy). But either way, as something of the acting schemer (or the scheming actor), or the bumbling and fumbling Husband and Father, his evidence and that of the Grandmother (certainly the “brains behind the outfit” so to speak), were clearly calculated to “obfuscate and evade”, and to make the access of the Mother to both the children, and to any assets, as difficult and troublesome as possible.
[23] Finally, the Grandmother’s declaration sought in the current proceeding regarding the [D Street, Suburb E] property is the first action she has taken since April 2014 when she was advised by her then lawyer to transfer the property into her name, following the fraudulent conduct of her son in putting it in his name. It is too late in the day, not to say too “convenient” to argue now in this case, that such a declaration should be made regarding the property. Certainly in this respect, the Wife’s argument, among a number of alternatives, for the doctrine of laches to apply is well founded.
[24] The Grandmother well knew, because she was formally advised by her then solicitor, of her son’s (the Husband’s) various defaults, including fraudulent conduct, as long ago as 2014. At that time, she was also advised to rectify the title deeds to [D Street, Suburb E]. She did not do so, or take any action at all to initiate such action. For the last 8 years, in effect and in reality, she has engaged in “calculated inaction” regarding the title to that property. “Calculated inaction” is the terminology of Gummow and Hayne JJ in Byrnes v Kendle at [79] and the cases there cited by their Honours.[5] In the light of the Husband’s various representations, regularly in writing, that he was the owner of said property, which the Grandmother admitted she knew about, she cannot now disavow the effective representation to the Mother, as the Husband stated, that this property “belonged” to the married couple. Until this litigation, the representations of the Husband regarding this property were never disavowed by the Grandmother. At the very least, her conduct indicated “acquiescence” in the representations of her son. Her conduct, in turn, represented to all, including the Wife, that the Husband’s representations were accepted by the Grandmother or not opposed by her.[6] Indeed, although not provided to this Court, her specific instructions to her then solicitor was to take no action that could potentially expose her son to any possible criminal action for his fraudulent conduct regarding the title deeds to [D Street, Suburb E].
[25] Further, just as the Husband cannot rely upon his fraudulent and misleading conduct to defeat the Wife’s claims regarding entitlement to certain property to be included in the asset pool, likewise, the Grandmother cannot similarly rely upon the fraudulent and misleading conduct of her son to lead to her benefit, by defeating the Wife’s claims.
[4] It was noted in the Mother’s evidence that the Father actively encouraged her relationship, which ultimately became (relevantly according to the tenets of the Jehovah’s Witness tradition) “adulterous.” Once a relationship was so declared, this meant that the Mother could be (and was) “disfellowshipped”, and she was counselled by that Church to have nothing further to do with her children. It could, and likely should, be inferred that there was a concerted effort and process to ostracise and shame the Mother, at least in relation to access to the children, but who would then be left in the Father’s sole care at the former marital residence.
[5] Byrnes v Kendle (2011) 243 CLR 253.
[6] See further the extended discussion by Heydon and Crennan JJ in Byrnes v Kendle, at [133] – [139] by reference to the detailed earlier discussion by Deane J in Orr v Ford (1989) 167 CLR 316 of the various and often overlapping circumstances that give rise to, and the distinctions between, “acquiescence”, “estoppel by conduct”, “election to abandon or not enforce rights”, “laches” and “gross laches.” Although not spelt out, and notwithstanding no reference to these High Court authorities, in my view, the factual circumstances plainly on display here are readily captured by these terms and the discussion by Heydon and Crennan JJ in Byrnes v Kendle. The submissions of the Wife, set out later, do refer to laches but without reference to authority.
In my view, this summary, of itself, more than justifies a costs Order in the Wife’s favour. The remainder of the reasons sets out in significant detail the multiple and long-standing defaults on behalf of the Applicant and his Mother, notably in relation to property matters. Other defaults, to speak in general terms, regarding parenting, obviously are only attributable to the Father. They, too, are set out in detail in the principal judgment, which I need not outline further here.
Written submissions on behalf of the Applicant
The Applicant Husband/Father’s written submissions, filed 13th October 2022, were as follows (emphasis in original; paragraph numbering has been added; alphabetised listing in original):
1.The following submissions are made on behalf of the Applicant father in relation to costs pursuant to Order 26 of the Orders made on the 14th September 2022. In summary the Applicant father submits that each party should bear their own costs.
2.Notwithstanding the statement in s 117(1) that in proceedings under the Family Law Act each party shall bear his or her own costs, the court has a discretion to make an appropriate costs order where there are circumstances that justify such an order. In considering whether a costs order should be made the court is to take into account the relevant matters prescribed by s 117(2A) of the Family Law Act. It is the submission of the Applicant Husband, that there are no justifying circumstances.
Matters relevant to a cost order
The financial circumstances of the parties (s 117(2A)(a))
3.The First Respondent will receive the benefit of her property settlement, which is significant. In her evidence the First Respondent asserts that she intends to go back to studying to become a [health care worker], which would provide her with the ability to earn an income. As a consequence of the judgement, the Applicant submits he does not have the financial means to pay any order for costs. He currently receives a disability pension from Centrelink.
4.Further the Applicant is responsible for the two older children, any costs order made by the Court would adversely affect the Applicants’ ability to properly provide for them, noting that he does not receive any child support from the First Respondent.
Receipt of Legal Aid (S117(2A)(b) )
5.The Applicant has not received any legal aid at all. In contrast the First Respondent has had the benefit of a grant early in the proceedings.
Conduct of the parties (S117(2A)(c))
6.Whist various findings made about his conduct in the detailed Reasons for Judgment. This has been addressed in the award made to the wife as outlined at paragraph 17 of the judgment. As such this should not be a factor considered for the payment of costs.
7.Separate orders regarding costs have already been made in relation to the “[Mr F] File”
Compliance with Orders (S117(2A)(d))
8.Neither party has failed to comply with previous orders.
Success in the proceedings (S117(2A)(e))
9.The Amended response that was file by the First Respondent filed in May 2021 did not seek any adjustment of the property interest, rather a broad statement of what was deemed just and equitable by the Court. Following this, the First Respondent on the 8th April 2022 in a further amended response sought a 60/40 split in favour of the First Respondent.
10.In the case outline filed on the 14th April 202, Part D of the document, it provided split 65/35, in favour of the Applicant, whilst the minutes of Consent order sought a split of 60/40 in Favour of the First Respondent. The submission made by the wife’s counsel dated 13th May 2022 then sought a split of 65/35 in favour of the First Respondent.
11.The final adjustment to the First Respondent was less that any of the adjustments sought and therefore the First Respondent was not successful with the orders sought for the financial aspect of the case.
12.In relation to the children neither party was successful, with the Court favouring the orders sought by the ICL.
13.In the circumstances where none of the parties were successful concerning the orders sought, each party should bear their own costs in relation to proceedings.
Other relevant matters (s 117(2A)(g))
a)The Application made by the Applicant in 2020 was in relation to the 3 children, their living arrangements and contact with the First Respondent. It was not until the 5th May 2021, the First Respondent sought financial orders. At the time the orders sought were vague.
b)Further, the father has sought to finalise the children’s matters throughout the matter including attending meditation. Given the First Respondent signed 3 sets of interim consent orders that prevented contact with the children, final determination in relation to the children was required, as was the financial settlement. The matter was not unduly lengthened by either party.
c)The First Respondent filed an application for interim property distribution on 5 May 2021. The matter was heard by his Honour Judge Campbell. At the hearing the Counsel for the Respondent sought leave to withdraw the application and it was subsequently dismissed. This application was refiled in July 2021. It is submitted by the Husband that this would have significantly increased the costs for the First Respondent.
d)The costs disclosed in the Cost Notices provided by the First Respondent’s Legal Representative are significantly greater than what one would normally expect given the legal representatives only commenced acting for the First Respondent in February 2021. These costs are considerably disproportionate to those of the Applicant and the Second Respondent.
FORM OF COSTS ORDER SOUGHT BY APPLICANT
e) That there be no order for costs
Written submissions on behalf of the First Respondent
The First Respondent Wife’s written submissions, filed 12th October 2022, were as follows (emphasis in original):
Background
1.On 14 September 2022, the Court made final orders in this matter. Those orders included provision for the parties to confirm the issue of costs could be dealt with in Chambers on the basis of written submissions, which the Wife did. These submissions are consequently filed pursuant to Order 26. The Wife seeks an order for costs, sought on different alternative bases in accordance with the form of order filed with these submissions. The Wife also relies on the affidavit of her solicitor filed 11 October 2022.
The "General Rule"
2.The general rule in proceedings under the Family Law Act is that each party shall bear their own costs, but if the court is of opinion that there are circumstances that justify it, can make such order to costs as it considers just. In considering what order to make the Court shall have regard to the matters in s117(2A). The Court must have regard to all of these matters. Their relevance depends on the circumstances of each case. There is no order or precedence in the factors. It is not necessary for there to be more than one relevant consideration to justify the making of an order.
Are there circumstances justifying a costs order?
3.The Wife submits there are circumstances justifying an order that the Husband pay her costs of the financial proceedings.
4.S117(2A)(a) - The first such circumstance is the financial circumstances of each party. The wife will receive the benefit of her property settlement but she has no other property, no discernible immediate earning capacity and no financial resources. Conversely the Husband had and continues to have the financial resource of his mother and the apparently unfettered use and benefit of her property.
5.S117(2A)(b) - The Wife is not in receipt of a grant of legal aid. She did have the benefit of a grant early in the proceedings.
6.S117(2A)(c) - The second such circumstance is the Husband's conduct. The wife relies on the various findings made about his conduct in the detailed Reasons for Judgment. This subsection is not punitive, but the wife ought to be compensated for the significant amount of additional costs she incurred because of the Husband's conduct in the proceeding (as considered by way of example at paragraphs 10, 15, 17, 19, 20 and 21. The type of obfuscation and evasion discussed in the Judgment both warrants an adjustment to the just and equitable property settlement (because so much remains beyond the true knowledge of the Wife and the Court) but also is a factor in support of the making of a costs order in favour of the Wife (because her costs were so much higher as a result of same). By way of examples, the Wife should not have had to issue the various subpoenas she did, seek the many sets of particulars she did, conduct the many historical searches she did, make the many repeated requests for disclosure that she did, or have her solicitors spend many hours understanding the falsified and therefore additionally confusing history of how the Husband's property came to exist. Specifically, the Wife draws the Court's attention to:
6.1. The Husband incorrectly sought to “rely upon his fraudulent and misleading conduct to defeat the Wife’s claims” [paragraph 25];
6.2. "the lack of disclosure by the Applicant and the Second Respondent, and by the Applicant’s solicitor, at every level throughout this litigation is gravely concerning.” [paragraph 234];
6.3. The Husband’s “'obfuscation and evasion', if not worse, was also plainly evident in the parenting side of things” [paragraph 21]; and
6.4. the Father’s evidence at the hearing may have to be assessed as somewhat more of an act to ensure that the Wife (and Mother) was deliberately removed from his life, from the lives of the children, and that she had no access to any of the family assets" [paragraph 22].
7.S117(2A)(d) – The proceedings were not necessitated by the failure of a party to the proceedings to comply with previous orders.
8.S117(2A)(e) – The third such circumstance, it is submitted, is the Husband was wholly unsuccessful in the financial part of the case. The core issues are set out at paragraphs 11 to 15 of the Judgment. The Husband's application was that there was, at law, no property to be divided and therefore the Wife should receive a modest or no settlement. His evidence was fundamentally rejected and he was, it is submitted, wholly unsuccessful. He "argued strenuously that the marital residence and the funds in the 'joint account' should be excluded from the property pool" (Judgment, paragraph 11).
9.S117(2A)(f) – The fourth such circumstance is the offer of settlement made by the Wife on 20 April 2022, for a payment of $500,000 within 90 days, which is annexure D to the affidavit of her solicitor sworn 11 October 2022. The Wife obtained a more favourable outcome.
Quantum/Form of Costs Order
10.The general rule is that when an order for costs is made, the costs are payable on a party/party basis. In Kohan & Kohan [1992] FamCA 116 the Full Court said the Court should not depart lightly from that general rule.
11.If an order is to be made for indemnity costs then the Court must consider the matters in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536. In Munday v Bowman [1997] FLC 92-784, Holden CJ summarised Colgate-Palmolive in a family law context and said some of the examples which might warrant indemnity costs orders in family law cases are [at 92-784]:
11.1. 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;
11.2. The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;
11.3. An imprudent refusal of an offer to compromise.
12.It is submitted here the Husband's prosecution of his action that he had no significant interest in property had no chance of success, and resulted in the undue prolongation of the case.
13.The circumstances which might support a costs order being made on an indemnity basis are not closed – Yunghanns & Yunghanns [2000] FamCA 681.
14.Here, the Wife is applying for an order for costs on an indemnity basis and therefore must inform the court if she is bound by a costs agreement or costs agreement in relation to those costs and the terms of same. She has done so through the affidavit of her solicitor.
15.In the alternative to an indemnity costs order, the Wife seeks an order for costs on a fixed basis or assessed on a solicitor/client basis. Rule 12.17(3) of the Rules sets out the matters a Court may consider in making such an Order.
16.Einstein J considered the making of a fixed sum order for costs in Idoport Pty Limited v National Australia Bank Limited & Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [9] as follows:
16.1. The purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation”;
16.2. The touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;
16.3. The fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;
16.4. A gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;
16.5. The gross sum “can only be fixed broadly having regard to the information before the Court”: the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that….is what the rule contemplates”;
16.6. Nevertheless, the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter.
17.It is submitted a fixed sum order is the most logical, fair and reasonable approach, noting the history of the proceedings.
Quantum
18.The Wife's also seeks her costs of the application she filed early in the proceedings for spouse maintenance. Ultimately that application was consumed by the property application and never seriously pressed at the final hearing. Very little of the Wife's actual costs could be directly attributed to the maintenance application and the preferable course is to fix those costs also.
19.The Wife's actual costs are set out in the affidavit of her solicitor. Her total costs excluding the [Mr F] Tender Bundle" costs are approximately $300,000.
20.To avoid the need for a costly and slow assessment process, the Wife seeks as her primary position a fixed sum costs order of $200,000. That, it is submitted, is effectively the costs of the property part of the case on an indemnity basis. Having regard to the matters discussed in Idoport, and the matters set out in Rule 12.17, such an order is justified and just in all the circumstances.
21.In the alternative the Wife sets out a set of different bases, in order, in which she seeks an order for costs.
FORM OF COSTS ORDER SOUGHT BY WIFE
1.That the Husband pay the Wife's costs of the proceedings insofar as they related to property or financial matters, including the Wife's application for spouse maintenance (the Wife's Property Costs).
2. That for the purposes of Order 1 the Wife's Property Costs be paid as follows:
2.1 On a fixed basis, in the sum of $200,000;
2.2 In the first alternative, at a fixed amount determined by the Court;
2.3In the second alternative to the fixed costs order sought, on an indemnity basis as agreed or taxed;
2.4In the third alternative to the fixed costs order sought, on a solicitor/client basis as agreed or taxed;
2.5In the fourth alternative to the fixed costs order sought, on a party/party basis as agreed or taxed.
3.That for the abundance of caution the Wife's Property Costs include the costs of the Wife's costs application.
4.That each party pay their own costs of the proceedings insofar as they related to parenting matters.
5.That any order as to costs be paid by the Husband within 28 days or on the settlement of the sale of the property at [D Street, Suburb E] NSW, whichever is the earlier.
As noted in her submissions, the Wife also relied upon a short Affidavit from her solicitor (sworn 11th October 2022) which disclosed (a) the terms of her costs agreement, (b) details of the costs agreement with Counsel, (c) the terms of an earlier offer of settlement that was made by her to the Husband and the Second Respondent Grandmother by letter, dated 20th April 2022 (a copy of which was attached to Mr Bak’s Affidavit at Annexure C), and (d) that costs were sought only in relation to property matters.
As the Grandmother’s and the Wife’s submissions both note, in the principal judgment a costs Order was made (Order 28) specifically arising out of certain documents that did not come to light until after the conclusion of the hearing. Those documents, which are detailed in the principal judgment and are generally referred to as “the Mr F Tender Bundle”, were in the custody of the Husband’s lawyer. The costs Order there made, which included that the costs were to be borne by both the Father and his lawyer, was for those costs to be either agreed or taxed. In the written submissions, only the Wife has specified the amount sought in relation to that Order, namely $8,894.25.
To facilitate the finalisation of this discrete costs issue, in the absence of any other Application by the Father or his lawyer within 14 days, in relation to Order 28 of the principal judgment, there will be an Order that the sum of $8500.00 be paid by the Husband and his lawyer to the Wife by 20th December 2022.
Written submissions on behalf of the Second Respondent
The Grandmother’s written submissions, filed 12th October 2022, were as follows (emphasis in original; for ease of reference, paragraph numbering has been added):
“The [Mr F] File”
1.An order has been made in relation to the costs of “the [Mr F] file” and they should be quantified and dealt with separately to the balance of the costs in these proceedings.
Balance Of Costs Concerning Property Matters.
2.In the Amended Response to the Initiating Application filed on behalf of the First Respondent, on 5 May 2021, no order was sought concerning a specific adjustment of property interests of the Applicant and Respondent, rather an adjustment that was deemed just and equitable by the Court.
3.In the Amended Response to the Initiating Application filed on behalf of the Respondent, on 8 April 2022, an order was sought for a 60/40 division of property in favour of the First Respondent.
4.In the Case Outline filed on behalf of the First Respondent, on 14 April 2022, Part D of that document provided for a 65/35 division of property in favour of the Applicant, yet the Minutes of Consent Order attached to the document sought a 60/40 division of property in favour of the First Respondent. The submissions from the Wife’s Counsel dated 13th May 2022 on behalf of the First Respondent sought a 65/35 division of property in favour of the Wife.
5.The Court has determined adjustment in favour of the First Respondent, but less than the adjustment that she sought and therefore did not succeed with the orders that she sought in relation to property.
6.The Applicant sought a declaration that he held the property at [D Street, Suburb E] in trust for the Second Respondent and a modest adjustment of property for the Wife.
7.The Second Respondent sought a declaration that the property at [D Street, Suburb E] and funds held in a Commonwealth Bank account was her property and that it be excluded from the property pool.
8.The Applicant and the Second Respondent were not successful in the orders that they sought in relation to property matters.
9.In circumstances where each of the parties has not been successful concerning the orders sought relating to property, our submission is that each party should bear their own costs in relation to the balance of costs in the property proceedings.
10.In His Honour’s judgement in this matter, the Wife was awarded a higher percentage than she would otherwise have received purely on contributions, as His Honour took into account matters of non-disclosure by the Applicant and the Second Respondent. We submit that an order for costs on the basis of any non-disclosure, in addition to the higher percentage of the property division, would, in effect, be double counting.
11.It is anticipated that the First Respondent will rely on an offer of settlement by the wife in relation to property by letter dated 20 April 2022. It is acknowledged that the adjustment made in favour of the Wife was greater than the amount contained in the offer, and it is open to the Court to consider an order for costs in favour of the Wife. We would ask that the Court take the following into consideration:
a. Any order for costs should be made in relation to costs incurred from the commencement of the hearing and only in relation to property. Those costs should be quantified separately.
b. The costs disclosed in the Costs Notices provided by the First Respondent’s representative appear to be far greater than one might expect and disproportionate to the costs of the Applicant and the Second Respondent by comparison.
12.The Second Respondent was not involved in the proceedings involving the children. A significant portion of the hearing was devoted to matters concerning the children. It would appear from the affidavits that a significant portion if the costs in preparing the matter was involved in matters concerning the children. Additionally, the Second Respondent was not involved in these proceedings at the outset but was joined in September 2021. If there is to be any order concerning costs involving the Second Respondent, such an order should be limited to the proceedings related to costs in relation to property and costs in relation to property matters and children’s matters should be quantified separately and dealt with separately and should also take into account that the Second Respondent was not a party to the proceedings from the outset.
Outline of principle
Sections 117(1) and 117(2) of the Family Law Act 1975 (Cth) are as follows:
(1) Subject to sub-section (2) and section 118, each party to proceedings under this Act shall bear his own costs.
(2) If the court is of opinion in a particular case that there are circumstances that justify it in doing so, the court may, subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.
The statutory and jurisprudential considerations in relation to making (or not making) Orders for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[7] Beginning at [62], the Full Court said (emphasis added):
[7] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[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.”
[63] 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-ss (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.
[64] 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 (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [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.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, 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)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold 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.
[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.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
In her submissions, the Wife sought a costs Order on an indemnity basis, and in the alternative, for a fixed sum as set out in her submissions. Again for completeness, I set out relevant principle regarding an award of costs on an indemnity basis. These principles were also set out in the Full Court’s judgment in Stephens.
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[8] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
[8] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
Should it need to be noted, the decision of Sheppard J in Colgate-Palmolive v Cussons has been consistently followed as an accurate statement of principle.[9]
[9] See for example, among many decisions in superior Courts generally, the Full Court decision in Leslighter v Fitzgerald-Stevens (2013) 47 Fam LR 384 at [141] – [150]. Among other things, at [146], the Full Court there said: “… the conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as a litigant.” See also the discussion by the Full Court on these and related matters in Wrenstead & Eades (2016) FLC 93-697.
Consideration and disposition
In the light of the principles I have outlined above, the “Overview of Findings” set out earlier in these reasons (which are taken from the primary judgment), in my view, is more than sufficient to warrant an Order for costs in the Wife’s favour. Multiple defaults regarding documents, together with multiple and various flaws in the evidence (particularly of the Husband), were identified throughout the principal judgment. As noted in the earlier reasons, even his own Counsel described certain conduct of the Husband as “fraudulent.” Should it need to be confirmed, the conduct of the Husband recorded in detail in the principal judgment goes well beyond the discrete issues that related to the post-hearing problems arising from the late production of documents conveniently described now as the “Mr F Tender Bundle.” It follows that the costs already made regarding that very late disclosure and production of documents has no bearing on the Court’s consideration of the current issue of costs of the substantive proceeding.
As also noted above, the consistently articulated and applied principles regarding costs, as summarised and recorded by the Full Court in Stephens at [67], relying upon High Court authority, is that
… 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 …
Up to a point, I accept (using my terms) that the Wife’s costs sought are rather at the higher end of the costs spectrum. That said, I also largely accept that there were a number of significant instances where the Wife was required to undertake further, and what should have been unnecessary, investigations that necessarily consumed further resources. That said, in all of the circumstances, an Order for indemnity costs is not here warranted, notwithstanding that it was a “near run” thing as there were not insignificant grounds to make such an Order.
Otherwise and in addition to what I have already said, I accept and adopt the submissions of the Wife. More generally, by way of summary, the conduct of the Husband in particular is more than sufficient basis for an award of costs in the Wife’s favour. It can also be recorded that the Wife was, for all intents and purposes, significantly successful in the litigation. Further, the Affidavit of Mr Bak, the Wife’s solicitor, provided details of an Offer of Settlement.
For completeness, I should also note that the Wife sought three different sets of Orders regarding property, which made it a tad difficult to know precisely what she was seeking.
In all of the circumstances, and noting that, pursuant to an earlier Order, there is a specific amount now determined for the Mr F Tender Bundle, there should be an Order for costs in the Wife’s favour (which relates only to the property side of the litigation) in the sum of $125,000 regarding her solicitor’s costs, and $30,000 regarding the Wife’s Counsel’s fees. Thus, the combined costs Order shall be in the sum of $155,000.00. These costs are to be paid by the end of January 2023.
If it ever became necessary to apportion these costs between the Husband and his Mother, it would be two-thirds for the Husband and one-third for the Grandmother. However, given that the Husband, on all the evidence (including his own), it will be sufficient that the award for costs be made against the Husband, knowing that the reality is that the Grandmother will, in all relevant respects, (to speak colloquially but intending no disrespect) be “picking up the tab” as she has done effectively throughout his life.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 2 November 2022
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