Villiers & Villiers (No 2)
[2023] FedCFamC2F 1550
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Villiers & Villiers (No 2) [2023] FedCFamC2F 1550
File number(s): DGC 2894 of 2020 Judgment of: JUDGE BOYMAL Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – Costs – the husband and the wife seek costs – justifying circumstances favouring both parties – wife pay costs of the husband Legislation: Family Law Act 1975 (Cth) ss 117, 75
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 r 12.08, Schedule 1, 3
Cases cited: Browne v Green (2002) FLC 93-115
I and I (No 2) (1995) FLC 92-625
In the Marriage of Murrayand Murray (1990) FLC 92-173
In Marriage of Robinson and Higginbotham [1991] FamCA 4
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85
Latoudis v Casey [1990] HCA 59
Lenova & Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity costs) (2015) FLC 93-664
Murray & Murray (2020) FamCAFC 293
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Pennisi v Pennisi (1997) FamCA 39
Division: Division 2 Family Law Number of paragraphs: 164 Date of hearing: 6 December 2023 Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Velocity Legal Counsel for the Respondent: Mr Richardson Solicitor for the Respondent: Mann Lawyers ORDERS
DGC 2894 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VILLIERS
Applicant
AND: MS VILLIERS
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.Within 60 days of the date of these orders (the payment date) the wife pay the costs of the husband fixed in the sum of $26,223.16 (the costs payment).
2.In the event the wife does not comply with her obligations pursuant to Order 1 by the payment date then:
(a)the wife forthwith do all acts and things and sign all documents necessary to list the property situated at D Street, Suburb E, Victoria (Suburb E property) for sale by public auction within 45 days;
(b)in the event the parties cannot agree to appoint a selling agent within 7 days, the husband, within a further seven days, nominate two selling agents and the wife choose one of the selling agents within seven days of the husband’s nomination, failing which the husband nominate the selling agent. In the event the husband does not nominate his proposed selling agents and conveyancers within the specified timeframe the wife nominate the selling agent. Thereafter the parties do all acts and things and sign all documents necessary to appoint the selling agent;
(c)the parties nominate such conveyancer as may be agreed between them and failing agreement a conveyancer nominated by the selling agent;
(d)the parties have the joint conduct of the sale; and
(e)in the event the parties cannot agree on the other terms of sale, then the terms of sale be as determined by the appointed real estate agent.
3.Upon settlement of the sale of the Suburb E property the proceeds of sale be applied as follows:
(a)first, to pay all costs and expenses of the sale including agent’s fees, commissions, and conveyancing costs;
(b)second, to discharge all mortgages and other encumbrances on the title of the Suburb E property;
(c)third, to the husband such sum of the costs payment as is then outstanding together with interest calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 from the payment date to the date of payment; and
(d)the balance remaining to the wife.
4.The husband’s application for costs be otherwise dismissed.
5.The wife’s application for costs be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
On 30 January 2023 I pronounced orders and published my reasons in relation to final property proceedings between the husband and the wife. I refer to Villiers & Villiers [2023] FedCFamC2F 47 for the background to the matter and the reasons for the decision (the reasons).
The husband and the wife seek costs.
The court heard oral submissions on 24 April 2023.
The husband relies on his Outline of Case filed on 17 April 2023, Written Submissions and Written Submissions in Reply. He seeks that the wife pay his costs in the sum of $209,556.37.
The wife relies on her Outline of Case filed on 21 April 2023 and Written Submissions. The wife initially sought that the husband pay her costs in the sum of $60,244.59. At the commencement of the proceeding on 24 April 2023 she abandoned the following items:
(a)costs of the mediation of $18,653.28; and
(b)costs of and incidental to BB Company’s first valuation in late 2020, being $5,060.00.
The exclusion of those two items reduces the quantum sought by the wife to $36,531.31.
For the following reasons an order is made for the wife to pay the husband’s costs in the sum of $26,223.16.
THE FINAL HEARING
The orders made on 30 January 2023 provided, in summary, that:
(a)the husband retain the parties’ the business;
(b)the wife pay the husband the sum of $329,197.00;
(c)contemporaneously with the payment the husband transfer his interest in the former family home at Suburb E to the wife; and
(d)there be a superannuation split in favour of the wife in the husband’s superannuation fund.
The orders reflected my determination, which provided for an adjustment of the parties’ non‑superannuation property as to 55 per cent to the husband and 45 per cent to the wife, and the agreed position of the parties that there be an equalisation of their superannuation interests. The final hearing was conducted over six non-consecutive days, 9 and 10 December 2021, 3 and 4 March 2022, and 6 and 7 April 2022. The matter was originally set down for final hearing with an estimated hearing length of three days.
Suburb E had an agreed value at the commencement of the final hearing. I noted at paragraph four of the reasons that the value of the business was a significant issue in dispute since the commencement of these proceedings on 24 August 2020 and that much of the court’s time both during the final hearing and interim hearings was spent on the value of the business.
I said at paragraphs five to seven of the reasons (footnotes omitted):
At the commencement of the hearing the wife asserted the business had a value of $840,000.00. On the third day of the hearing Counsel for the wife proposed that the business be listed for sale within 90 days with a reserve of $400,000.00 and if it did not sell at that reserve then it be listed again without a reserve. On day four of the hearing Counsel for the wife conceded that “it’s going to take a mighty effort to achieve [$840,000.00] I recognise that”. During the hearing the wife abandoned all of her contemplated claims for spousal maintenance.
On the first day of the hearing Counsel for the husband opened the husband’s case on the basis that the business be sold in order to avoid the dispute as to its value. He proposed that the business be placed on the market at a reserve of $337,000.00 and if it does not sell within six months then he be at liberty to retain it at the value of $337,000.00. The figure of $337,638.00 being the updated business valuation as at [late] 2021.
On day five of the hearing the Court was told that the parties had agreed on the value of the business at $410,000.00. As a value had been agreed, both parties’ final minute of proposed orders provide for the husband to retain the business.
By the conclusion of the final hearing the quantum of the net non-superannuation property of the parties to be adjusted identified by the husband was $1,584,595.00 and identified by the wife at $1,521,987.00. These figures included the agreed net equity in Suburb E and the agreed value of the business at $410,000.00.
The difference between the parties by the conclusion of the hearing of $62,608.00 at first blush may seem minimal. However, the parties’ respective positions regarding the identified non‑superannuation asset pool at the conclusion of the hearing still encompassed 11 items in dispute as to whether they should be included in the final asset pool for adjustment. The quantum of the net non-superannuation assets of the parties at the commencement of the proceedings was more markedly disparate given the wife at that time placed a value of the business at $840,000.00 and the husband’s value was $337,000.00.
I determined that the quantum of the net non-superannuation assets of the parties to be adjusted between them was $1,365,699.00.
LEGAL PRINCIPLES
Section 117 of the Family Law Act 1975 (Cth) (the Act) governs the question of costs. The general rule found in section 117(1) is that each party is to bear their own costs.
Section 117(2) enables the court to depart from the general rule and to make such order for costs as the court considers just if the court is of the opinion that there are circumstances that justify it doing so. A preliminary consideration to the making of an order for costs is the court finding justifying circumstances. The discretion to order costs is a broad discretion.
When considering what order (if any) should be made pursuant to section 117(2), the court shall have regard to the matters set out in section 117(2A). The matters set out in section 117(2A) are:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
No one factor under section 117(2A) prevails over any other factor. The weight to be ascribed to each of the matters in section 117(2A) is a matter of discretion for the Court.[1] There is nothing to prevent any one factor in section 117(2A) being the sole determinant for an order for costs.[2] However, the relevant matters in section 117(2A) “must all be taken into account and balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[3]
[1] Medlon & Medlon (No. 6) (Indemnity costs) (2015) FLC 93-664.
[2] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.
[3] I and I (No 2) (1995) FLC 92-625 at [5].
Costs orders are compensatory in nature and not punitive. That is to say, costs orders are not used to punish the unsuccessful party to litigation.[4]
CONSIDERATION
[4] Latoudis v Casey [1990] HCA 59.
The financial circumstances of the parties
Neither party was in receipt of legal aid.
At the time of the final hearing the wife’s employer was W Company and the wife was seeking a pay rise. The reasons included at paragraph 168:
The Court can only speculate whether the wife received an increase in her salary. Whatever the quantum may be the evidence before the Court is that the wife receives a salary of $62,972.00. Irrespective of the potential quantum increase, I consider that the husband is in a better position than the wife in relation to future considerations. He can adjust his income to meet his needs, pay himself dividends as required, he is in a relationship with [Ms Z], and they are already intermingling the payment of their joint expenses.
The wife told the court at the final hearing that she was considering increasing her income by renting out Suburb E or at least its three spare bedrooms and that she was moving interstate.
The wife is now employed by CC Company and earns $100,000.00 per annum.[5] The court was not told whether she had rented out any part of Suburb E or whether she had moved interstate.
[5] Transcript 24 April 2023, p.22.
At the final hearing the husband estimated his income for the 2021/2022 financial year at around $90,000.00 inclusive of salary and dividends. The business paid for the husband’s motor vehicle expenses and the costs of the husband and Mr H’s telephone and NBN.
However, Counsel for the husband told the court during this hearing that the business was in the process of being wound up, the husband was in the process of selling it and that he had applied for employment in the general workplace. In that circumstance Counsel submitted that the husband was no longer deriving any of the benefits from the business which he did at the time of the final hearing.[6]
[6] Transcript 24 April 2023, p.39 to p.40.
There is therefore a dearth of detail available to the court enabling an accurate assessment of the current financial circumstances of the parties.
In any event impecuniosity or limited means of a party is not determinative of whether a costs order should be made where it is otherwise warranted.[7]
[7] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
I consider that there is no bar to either party paying the costs of the other based on their respective financial circumstances.
Husband’s costs of first return date
The first return date of the husband’s application commencing these proceedings was on 30 September 2020 before another judge. By the time of the return date the wife had not filed her Response, Affidavit or Financial Statement.
The husband seeks that the wife pay the costs of his Counsel and his instructing solicitor for appearing on that day on the basis that there are justifying circumstances pursuant to section 117(2A)(c) in relation to pleadings and section 117(2A)(d).
The wife contends that notwithstanding the fact she had not filed any material as at 30 September 2020, the hearing was utilised to establish a pathway to complete all interlocutory processes and to progress the matter to trial.
Orders were made by consent on 30 September 2020 providing for the wife to file her material, requiring the parties to make full and frank disclosure, requiring a valuation to be obtained of the business in the absence of agreement and requiring the parties to attend a private mediation. The matter was listed for final hearing in October 2021.
I acknowledge that the husband’s costs of 30 September 2020 were reserved, and that the wife failed to comply with the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (the Rules) providing for responding material to be filed prior to the first return date. However, that the wife did not comply did not stall the progress of the proceedings. I consider there was no financial detriment or loss occasioned to the husband by way of wasted legal costs of 30 September 2020 as a consequence of the wife failing to provide her responding material by that date.
I am not satisfied that there are justifying circumstances which support that the wife should pay the husband’s costs of this court event.
Husband’s costs of issuing three subpoenas;
Husband’s costs in relation to his Application in a Case filed 26 April 2021; and
Wife’s costs in relation to the husband’s Application in a Case filed 26 April 2021
The parties separated in October 2018. The wife remained living in Suburb E. Initially the mortgage on Suburb E was paid jointly by the parties. In late 2019 the parties sought a stay of mortgage repayments until early 2020. Thereafter the wife unilaterally applied for and obtained further mortgage repayment stays for a further 14 months between early 2020 and mid-2021.
In 2021 the Court made orders approving the settlement in relation to the proceedings in respect of the estate of the wife’s grandmother. The wife was the defendant in those proceedings in her capacity as the executor of that estate.
On 26 April 2021 the husband filed an Application in a Case. On the basis that the wife was not making mortgage repayments he sought the sale of Suburb E and that the net proceeds of sale be held in the trust account of his solicitor after $100,000.00 was distributed as to $50,000.00 to him, the discharge of the NAB credit card, and the balance to the wife.
The husband had been seeking that the wife make the mortgage payments since at least 2 October 2020.
On 27 April 2021 the wife’s solicitor forwarded a letter to the husband which included the following:
In the last several weeks, our client has become employed. She has just received her first paycheck. As such, she will be in a position to cover the loan repayment due in mid-May. In addition, we enclose terms of settlement in relation to our clients’ grandmother’s estate. Whilst the terms await final approval from the Court our client should, in reasonably short order, have adequate funds to cover the mortgages going forward until trial in October 2021”.
The statement “whilst the terms await final approval” in the letter was clearly incorrect. The terms were approved seven days prior to the date the husband filed his Application in a Case.
The matter was listed for hearing on 28 April 2021 before a Registrar.
On 28 April 2021 the wife filed a Response seeking that the parties convert the mortgage payments on Suburb E to interest only, that she be responsible for the mortgage payment, that Suburb E be sold if she defaults in the payments, and that the net proceeds of sale be held in the trust account of the husband’s solicitor after an interim distribution of $50,000.00 to each party.
The wife’s solicitor attested an affidavit in support of the wife’s Response on 28 April 2021 which annexed his letter dated 27 April 2021 referred to in paragraph 39 herein. The letter included that following approval of the settlement of the estate, due in several weeks, the wife will have approximately $200,000.00 in cash.
On 28 April 2021 a Registrar adjourned the husband’s Application in a Case to 20 August 2021 before me for an interim defended hearing.
I do not propose to traverse the submissions the wife makes in relation to what the husband included or omitted in his affidavit, the reasons she gives why the matter was adjourned, or the likelihood of success of the orders the husband sought in his application. I have considered the wife’s submissions in this respect but nevertheless I am satisfied that there are justifying circumstances to support the finding that the wife should pay the costs of the husband in relation to the issuing of three subpoenas and the Application in a Case filed 26 April 2021.
In 2021 the wife received $20,000.00 and $174,000.00 from her grandmother’s estate.
In mid-2021 the wife commenced making the mortgage payments.
On 28 May 2021 three subpoenas were issued to three financial institutions by the husband’s solicitor. The purpose of the subpoenas was to discover information in relation to the wife’s entitlements in her grandmother’s estate.
By letter dated 16 July 2021, after the documents produced under subpoena were inspected, the husband made an offer to settle his Application in a Case on the basis that the wife confirm in writing that she intends to meet all mortgage repayments on Suburb E, or that she immediately list Suburb E for sale.
On 19 August 2021 I made interim orders by consent in chambers including:
(a)restraining the parties from applying for any further mortgage stays;
(b)requiring the wife to pay the interest and principal of the Suburb E mortgage and all insurance, utilities, rates, and outgoings associated with Suburb E;
(c)the sale of Suburb E if the wife defaulted making the above payments;
(d)upon the settlement of sale of Suburb E each party receive the sum of $100,000.00 by way of part property settlement, the NAB credit card be discharged and the balance be held in the trust account of the husband’s solicitor;
(e)reserving the husband’s costs; and
(f)dismissing all interim applications.
An order was also made for the parties to obtain an updated valuation of the business and for the husband cause to be provided to the wife’s solicitors all updated records in relation to the business.
Accordingly, as there was no necessity for the interim defended hearing to proceed, that hearing date was vacated.
I am of the view that it is disingenuous of the wife to submit that “in substance, rather than allow for disclosure, the Husband, in his eagerness, jumped the gun”.[8] The husband’s Application in a Case had been adjourned and full disclosure from the wife in relation to her entitlement in her grandmother’s estate was not forthcoming.
[8][8] Wife’s Written Submissions on Costs filed 19 May 2023 at [45].
Paragraph 81 of the reasons sets out my finding that the husband learned of the quantum the wife received from her grandmother’s estate only after inspecting the documents that were produced under subpoenas issued on his behalf. I made that finding on the basis that the Terms of Settlement of the dispute in relation to the wife’s grandmother’s estate and the correspondence from the wife’s solicitor in relation to the inheritance only disclosed that the wife had an interest in the inheritance but did not disclose the quantum she would be receiving.
In light of that finding, Counsel for the wife did not seriously challenge that there may be circumstances justifying the wife paying these costs. Having regard to my finding in the reasons, I consider that there are justifying circumstances pursuant to section 117(2A)(c) of the Act, that being the wife’s conduct of proceedings in relation to discovery and production of documents, which support that the wife should pay the husband’s costs in relation to issuing the three subpoenas.
The husband seeks the costs of his Counsel appearing on his behalf and his solicitor’s attendance to instruct Counsel at the first return date of his Application in a Case on 28 April 2021.
The wife seeks costs in relation to the husband’s Application in a Case from 26 April 2021 until 22 August 2021.
I do not consider that it is a bar to the husband seeking his costs of 28 April 2021 on the basis that it may have been an oversight or administrative error on the part of a court employee abridging the time of the return date and listing the matter for hearing on 28 April 2021. The employee assessed the husband’s material at that time and deemed it appropriate to give it the hearing date of 28 April 2021.
The wife’s evidence at the final hearing was that she did not have the capacity to pay the mortgage. As of 26 April 2021, the mortgage was not being paid and the wife had already unilaterally successfully applied for a stay of mortgage repayments.
As of 26 April 2021, the husband had no knowledge of the anticipated improvement in the financial circumstances of the wife in either her obtaining of employment or when and in what quantum she would receive her entitlement in the inheritance.
It was not disclosed to the husband prior to issuing his Application in a Case that the Terms of Settlement in relation to the wife’s grandmother’s estate had already been approved, or that the wife had obtained employment, or the quantum the wife was likely to receive from her grandmother’s estate. It was only in her solicitor’s letter dated 27 April 2021 and in her solicitor’s affidavit attested on 28 April 2021 that the husband gained knowledge of the anticipated improvement in the wife’s financial circumstances. I am of the view that the husband was justified and had a sound basis upon which to bring his Application in a Case.
Counsel for the wife relies on several of my findings in the reasons to resist the wife paying the costs of the husband and in support of the proposition that the wife’s costs be paid by the husband. Principally, Counsel for the wife relies on the wife’s financial circumstances during the 14 month period in which the wife unliterally obtained stays on the payment of the Suburb E mortgage.
However, I consider that the wife’s evidence referred to in paragraph 59 herein, my findings at paragraph 68 of the reasons upon which Counsel for the wife relies to support the wife’s case, and paragraph 69 of the reasons are the very reasons why the husband felt compelled to issue his Application in a Case and was justified in doing so. In simple terms, the husband was trying to preserve the equity in Suburb E by issuing his Application in a Case. The impetus behind the husband issuing his application was that the wife was not paying the mortgage and he did not know whether the wife could pay it in the future. I consider it a distraction from the above that the mortgage had not substantially increased during the 14 month period and the reasons why it had not done so.
Paragraphs 68 and 69 of the reasons are as follows:
Having regard to the wife’s income I am of the view that it would have been difficult for her to pay for her and [Mr H’s] living expenses and also meet the mortgage repayments for that 14 month period.
From an income which the husband asserts was $3,214.00 per month, if the wife had paid the mortgage she would have had $310.00 per month left to pay for all other expenses. The wife deposes that from October 2020 until April 2021 her average weekly expenses, excluding the mortgage repayments were $833.00. This equates to approximately $3,332.00 per month. Again there was insufficient income from which she could meet the mortgage payments.
Unless there was going to be an improvement in the wife’s financial situation, the wife would not have been able to meet the mortgage payments unless further mortgage stays were applied for, such further stays being opposed by the husband. The husband did not know at the time of issuing his application that there was going to be an improvement in the wife’s financial situation such as to enable her to pay the mortgage. The failure of the wife to promptly advise the husband of the improvement in her financial circumstances necessitated the husband initiating his Application in a Case.
I reject the wife’s submission that the husband “abandoned his application mere days before the hearing”,[9] and that he “abandoned” his affidavit in support”.[10] There was no necessity for the husband to continue with his Application in a Case at the adjourned interim hearing date as the parties had reached a settlement which was reflected in the consent orders made on 19 August 2021. The husband through the consent orders had achieved the outcome he sought in his Application in a Case, that was, to preserve the equity in Suburb E. Notably, the settlement and the consent orders provided for a sale of Suburb E in the event the wife defaulted in making the interim payments which included the interest and principal on the mortgage. The wife in her Response sought that she pay interest only.
[9] Wife’s Written Submissions on Costs filed 19 May 2023 at [50].
[10] Wife’s Written Submissions on Costs filed 19 May 2023 at [37(b)].
For all of the above reasons I am satisfied that:
(a)there are justifying circumstances supporting that the wife should pay the husband’s costs of all three items having regard to section 117(2A)(c) and (g) as contended by the husband; and
(b)there are no justifying circumstances supporting that the husband should pay the wife’s costs in relation to his Application in a Case.
Wife’s costs of DD Company first report dated 25 October 2021; and
Wife’s costs of DD Company second report dated 28 February 2022
The wife seeks that the husband pay the whole of the costs of the two reports prepared by DD Company. The wife has wholly paid the costs of the two reports. The husband agreed to the first and second reports being undertaken by DD Company.
The first BB Company report in late 2020 placed a value on the business at $139,000.00.
The second BB Company report in late 2021 placed a value of the business at $221,000.00.
The first report by DD Company in late 2021 placed a value of $215,220.00 on the plant and equipment of the business.
BB Company were provided with the DD Company report in late 2021. I was told on 9 December 2021, the first day of the final hearing, that BB Company now valued the business at $337,000.00.
Between the second day of the final hearing on 10 December 2021 and the third day of the final hearing on 3 March 2022, DD Company had prepared its second report dated early 2022. The second DD Company report valued additional items of the business at $66,494.00.
On 6 April 2022, being day five of the final hearing, the court was told that the value of the business was now agreed between the parties at $410,000.00. I do not know on what bases the value of the business was compromised between the parties. For want of stating the obvious, the agreed value of the business was different to the value placed on the business at the commencement of the proceedings by each of the parties. Again, for want of stating the obvious, the parties were ultimately able to agree on the value of the business because of the two valuations undertaken by BB Company and the two valuations undertaken by DD Company.
There is merit in some of the submissions made by each party and some submissions are without merit in relation to whether the husband should pay the costs of the two reports by DD Company. I do not propose to traverse them as on balance I am satisfied that there are justifying circumstance pursuant to section 117(2)(A)(g) which support that the husband should reimburse the wife one half of the costs of the first and second reports of DD Company.
First, both parties gained a benefit from the two reports by DD Company. The wife avoided a finding that the value was more akin to the lesser value placed upon it by the husband, and the husband avoided a finding that the value was more akin to the greater value placed upon it by the wife. Findings either way would have changed the sum the wife would have been required to pay the husband. In order to satisfy the 55/45 per cent adjustment as determined by me, on the one hand, the wife may not have been able to retain Suburb E and on the other hand, the husband would have received a lesser amount of cash.
Secondly, whilst I do not accept that the husband was obstructive, misleading or in any other way endeavoured to influence the value of the business being of a lesser amount than its true worth, noting that he always accepted the increase in values, the wife did manage through her endeavours to have the value of the business increased because of the two reports by DD Company. As both parties benefited, I do not consider it just if the wife has to bear the whole of the cost of the two reports. I consider that the wife should be compensated for her forensic conduct.[11]
[11] Murray & Murray (2020) FamCAFC 293 at [98].
Husband’s costs of hearing on 9 December 2021
The husband seeks the costs of his Counsel and the attendance of his solicitor to instruct on 9 December 2021, being the first day of the final hearing.
The husband submits that the full day of 9 December 2021 was spent arguing the wife’s Application in a Proceeding filed on 6 December 2021. Her application sought to introduce an adversarial expert in relation to the value of the business.
Counsel for the wife submits that only a small portion of the court day was occupied with the wife’s application.
I have perused the transcript of 9 December 2021 which records:
(a)the matter of Villiers commenced at 10.18 am;
(b)argument in relation to the wife’s Application in a Proceeding commenced shortly thereafter and concluded at 12.06 pm;
(c)the luncheon adjournment was between 12.06 pm and 1.20 pm;
(d)between 1.20 pm and 2.39 pm Counsel for the husband gave his opening and there were some discussions between the bench and bar table;
(e)the court adjourned between 2.39 pm and 3.05pm; and
(f)between 3.06 pm and 4.18 pm, when court adjourned for the day, the husband spent one minute giving his evidence in chief and Counsel for the wife commenced his cross-examination of the husband.
Accordingly, the husband’s assertion as to how the first day of the final hearing was spent is misguided.
I am of the view that there are no justifying circumstances which support that the wife should pay the husband’s costs of this day. However, I am satisfied that because some part of the first day of the final hearing, nearly two hours, was spent on the wife’s Application in a Proceeding it is a matter to be considered when I exercise my broad discretion in determining whether costs should be ordered. The wife’s Application in a Proceeding was wholly unsuccessful.
Husband’s costs in relation to wife’s Application in a Proceeding filed 4 February 2022
On 10 December 2021 I adjourned the matter to 24 February 2022 with priority. On 27 January 2022 chambers advised the parties that due to judicial unavailability the listing on 24 February 2022 was vacated and re-listed to 3 March 2022.
On 4 February 2022 the wife filed an Application in a Proceeding seeking that DD Company prepare a second report and that the husband provide a range of business documents to the wife. The application was listed for hearing on 17 February 2022 before a Senior Judicial Registrar.
On 16 February 2022 a Senior Judicial Registrar made orders in chambers including that the wife’s Application in a Proceeding be discontinued and the husband do all things necessary to allow DD Company to attend at the business premises in order to prepare its second report.
The husband seeks that the wife pay his costs in relation to her Application in a Proceeding.
On 29 January 2022 the wife’s solicitor forwarded a letter to the husband’s solicitor.[12] The letter requested consent from the husband to allow DD Company to reattend the business for the purpose of a second report. The letter required a response from the husband within 10 days failing which they threatened to issue an application. Ten days from 29 January 2022 was 8 February 2022, that is, four days after the wife commenced her application. By letter dated 7 February 2022, within the 10 days, the husband agreed to the second valuation by DD Company occurring and invited the wife’s solicitor to withdraw the wife’s application. The wife agreed to discontinue her application on 14 February 2022 and consent orders were made by the Senior Judicial Registrar on 16 February 2022.
[12] Husband’s Written Submissions in Reply filed 27 May 2022 at Annexure 7.
I am of the view that it is the wife who “jumped the gun” by commencing these proceedings when she did. The proffered time of 10 days had not elapsed when the wife issued her application. The issuing of her application put the husband to unnecessary expense.
The wife’s submissions also focussed on the order sought in her application in relation to the husband’s provision of documents. The letter dated 29 January 2022 also included that if the wife’s requests for provision of documents by the husband had not been met by 3 February 2022, then her solicitor held instructions to bring an interlocutory application.
However, the documents requested by the wife from the husband in her application had not been the subject of previous requests by her, and the husband had previously indicated to the wife that he did not have any of the documents previously requested.[13] Notably, the orders made on 16 February 2022 do not include any orders requiring the husband to produce documents.
[13] Husband’s Written Submissions in Reply filed 27 May 2022 at Annexure 7.
For the above reasons I am satisfied that there are justifying circumstances pursuant to sections 117(2A)(c),(f) and/or (g), as contended by the husband , which weigh in favour of the husband having his costs in relation to the wife’s application paid by the wife.
Whether either party has made an offer in writing to settle the proceedings and the terms of any such offer
The husband made five offers of settlement to the wife.
A party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs.[14] 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.[15]
[14] In the Marriage of Murray and Murray (1990) FLC 92-173.
[15] Browne v Green (2002) FLC 93-115.
In Pennisi v Pennisi (1997) FamCA 39 at [2.8] the Full Court said:
…Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
Husband’s offer 15 February 2021
This offer provided for the wife to pay the husband the sum of $400,000.00 and that each party pay the husband’s mother the sum of $19,189.50.
The offer provided for $70,803.00 more to be paid by the wife to the husband than the outcome the wife achieved at trial. Also, the orders of 30 January 2022 did not require any money to be repaid to the husband’s mother. The husband’s asset pool contained five items that were disputed by the wife to be included. The value of the business was included at $139,000.00 and the wife disputed that value. The offer was made six months after the substantive proceedings were commenced.
In all of those circumstances I consider that the wife’s rejection of this offer was not unreasonable and therefore does not constitute a justifying circumstance. At the time the offer was made there was a real possibility that the wife would achieve a more favourable outcome.
Husband’s offer 7 December 2021
The husband’s offer sets out a table of assets and liabilities which total $1,316,042.00 and provides for a 50 percent adjustment between the parties.
The wife’s rejection of this offer does not constitute a justifying circumstance. At a minimum, the offer was vague, as submitted by Counsel for the wife. One can only infer how the assets were to be divided, whether Suburb E was to be sold or the wife afforded the opportunity to retain it. There was also an error in the offer in relation to the calculation of the total non-superannuation assets at $1,316,042.00. The correct total was $1,458,307.00.
Husband’s offers 8 December 2021 and 9 December 2021
The husband’s two offers are in the same terms.
I do not consider that the period of time these offers were left open mitigate against the wife’s rejection being unreasonable if in all the other circumstances it would have been reasonable for her to accept them.
I also consider that the difference in the quantum the husband sought the wife pay him in the offers of $338,000.000 is not so markedly different to the quantum of $329,197.00, namely $8,803.00, so as to be a bar to a finding that the wife unreasonably rejected these offers if all other indicia of the offers warranted the wife’s acceptance of the offers.
Section 117(2A)(f) is not limited to offers of settlement that are the same or better than the ultimate outcome. The closer the offer is to the ultimate outcome the more weight should be given to this factor.[16]
[16] Pennisi v Pennisi (1997) FamCA 39; In Marriage of Robinson and Higginbotham [1991] FamCA 4.
The offers included the value of the business at $337,000.00. However, the wife still disputed that value of the business. It was the husband’s evidence on 8 and 9 December 2021 that prompted the wife to obtain the second DD Company report. The wife was vindicated as the value of the business rose to a minimum of $400,000.00, which I infer was the case on the basis of her proposal made to the Court on 3 March 2022, being the third day of the final hearing, when the parties ultimately agreed on the value of $410,000.00. The second DD Company report prompted the increase in the value of the business.
As of 8 December 2021 and 9 December 2021, I consider that the value of the business was still a subject of dispute and a legitimate subject matter for determination.
The wife at this stage of the proceedings was also seeking a 60/40 per cent adjustment of the non-superannuation assets in her favour and backdated spousal maintenance for the period between late 2020 and mid-2021 when she received the inheritance.
Accordingly, it was not unreasonable for the wife to hold the view that she may achieve a much better outcome from the court. The wife’s rejection of these offers does not constitute a justifying circumstance.
Husband’s offer 3 March 2022
The husband’s offer was predicated on an equal division of the non-superannuation assets of the parties. It provided for a sale of the business with a reserve of $400,000.00, and that if the business did not sell within three months then the husband retain the business at a value of $337,000.00. The offer also provided that in the event the husband retained the business then the wife pay the husband the sum of $338,000.00, and if the business sold the wife pay the husband the sum of $506,000.00.
The husband’s balance sheet includes two items, the wife’s jewellery and the inheritance, which were not included in the balance sheet determined by me.
The offer was made at 2.00 pm on 3 March 2022, the third day of the final hearing, and was open until 9.00 am 4 March 2022, the fourth day of the final hearing. The offer was plainly made by the husband taking into account that at approximately 11.30 am on 3 March 2022, about five minutes after the time the matter of Villiers commenced for the day, Counsel for the wife advised that the wife’s proposal was now that the business be sold with a reserve of $400,000.00.
Again, I consider that the difference in the quantum the husband sought in the offer of $338,000.000 if he was to retain the business is not so markedly different to the quantum of $329,197.00 so as to be a bar to a finding that the wife unreasonably rejected this offer.
I also do not consider that the period of time this offer was left open mitigates against the wife’s rejection being unreasonable if in all the other circumstances it would have been reasonable for her to accept it. Matters do settle during the running of the trial after a proper forensic evaluation by the parties of the state of the evidence and the strengths and weaknesses of their position. There is a heightened incentive to evaluate offers made during the running of the final hearing as significant costs accrue on a daily, even an hourly basis.[17] There had already been two days of hearing, the third day of 3 March 2022 was a significant period of time after the second day, and the second report of DD Company had been completed.
[17] Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85.
The husband’s primary position in this offer took the wife’s lead in placing the business on the market with a reserve of $400,000.00. The “keep” of each party in the offer on a 50/50 division replicates the distribution of the non-superannuation assets provided for in the orders of 30 January 2023. Before the expiry time of the offer the husband had been cross examined for two and a half days. The offer was made to resolve matters “on an overall basis” which would include the issue of the wife’s claim for backdated spousal maintenance. I consider that these matters are in favour of a finding that the wife unreasonably rejected the offer. These matters weigh in favour of the husband.
However, it is the sum of $506,000.00 to be paid by the wife to the husband in the event that the business sold and the wife retained Suburb E that mitigates against a finding that the wife unreasonably rejected this offer. The figure of $506,000.00 is 50 per cent of the non-superannuation asset pool set out by the husband excluding the business. However, the husband’s asset pool includes the wife’s jewellery at $22,000.00 and the wife’s inheritance at $65,000.00. I determined those two items did not form part of the asset pool. If those two items are excluded from the asset pool the payment to the husband by the wife, had the business sold, would have been around $463,400.00.
Conduct of the parties
Notwithstanding that I am satisfied that the wife’s rejection of the husband’s offer made on 3 March 2022 is not a justifying circumstance, I am of the view that there are justifying circumstances supporting that the wife should pay the husband’s costs of the last three days of the final hearing, being 4 March 2022, 6 April 2022, and 7 April 2022 for the reasons which follow.
It appears that the turning point in the wife’s steadfast inflated view of the business’ value was at the latest at 11.30 am on 3 March 2022 the third day of the final hearing some five minutes after the matter of Villiers commenced for the day. Counsel for the wife told the court that the wife now proposed that the business be sold at a reserve of $400,000.00.
Cross-examination of the husband by Counsel for the wife subsumed the entirety of court time devoted to the matter of Villiers on 3 March 2022. At 4.42 pm the matter of Villiers was adjourned to the next day.
As of the morning of 3 March 2022 the second DD Company report was at hand, the husband’s primary position from the commencement of the final hearing was that the business be sold, the husband made an offer on 3 March 2022 at 2.00 pm with the primary position of the business being sold at a reserve of $400,000.00. The wife’s primary position as at 11.30 am on 3 March 2022 was that the business be sold with a reserve of $400,000.00, Counsel for the wife persisted with his cross-examination of the husband for the whole of 3 March 2022.
I consider that the totality of the evidence during the final hearing and the discussions between the bench and bar table supports that the two BB Company valuations and the two DD Company valuations must have adequately addressed the matters persisted with in cross‑examination by Counsel for the wife. I also take this view as the agreed value of the business was $410,000.00. I am of the view that as from 2.00 pm on 3 March 2022 the value of the business was no longer a legitimate subject matter on which the husband should have been cross-examined. The wife did not seek to cross-examine the author of the BB Company’s reports which were documents relied upon by the husband at the final hearing, and the husband did not seek to cross-examine the authors of the BB Company or DD Company reports.
Notwithstanding the wife’s change of view as to the value of the business as at 11.30 am and the husband’s proposal made at 2.00 pm, cross-examination of the husband relevant to the value of the business and the alleged “rivers of cash” continued on 3 March 2023 after the lunch break until 4.42 pm when court concluded for the day. On 4 March 2023 the husband gave evidence between 9.11 am and 12.56 pm. Previously, on 9 December 2021 the husband was cross-examined between 3.07 pm and 4.18 pm. On 10 December 2021 the husband was cross-examined and re-examined between 10.26 am and 4.39 pm.
Also, on 4 March 2023 Counsel for the wife:
confirmed the wife was continuing with her application for backdated spousal maintenance between 7 October 2020 and May 2021;
told the court that the proposal of the wife to sell the business at a reserve of $400.000.00 also included that the husband pay the wife spousal maintenance until the business sold; and
that the wife wished to make an application for the husband to pay interim spousal maintenance to the wife between 4 March 2022 and the further adjourned date of the final hearing on 6 April 2022.
There were now three issues before the court in relation to spousal maintenance:
(a)backdated spousal maintenance;
(b)spousal maintenance between the adjourned hearing dates; and
(c)spousal maintenance pending the sale of the business.
At the commencement of the final hearing the wife only sought backdated spousal maintenance.
Part of Counsel for the wife’s cross examination of the husband on 3 March 2022 and 4 March 2023 was clearly targeted to the issue of backdated and future spousal maintenance.
The wife did not abandon all of her applications for spousal maintenance until approximately 12.15 pm on 6 April 2022, being day five of the final hearing.
I consider that it was disingenuous in all of the circumstances of the case, for the wife to have continued with her application for backdated spousal maintenance at any time during the final hearing given she was using the redraw facility to pay the mortgage and was otherwise able to meet her and Mr H’s living expenses for the period she was seeking the payment of back dated spousal maintenance.
It was also disingenuous of the wife to seek future spousal maintenance on any interim basis at any time during the final hearing given that she was now meeting mortgage repayments and day to day living expenses, Mr H was no longer living with her and she was no longer required to pay any of his expenses particularly school expenses as he had completed his secondary education, that she was still employed, and more so because her financial situation would “be changing shortly”.
The wife gave evidence between 2.45 pm and 4.26 pm on 4 March 2022. The wife gave evidence on 6 April 2022 between 11.27 am and 4.07 pm when court adjourned to 7 April 2022.
It was not until Counsel for the husband’s cross-examination of the wife at approximately 4.06 pm on 6 April 2022, being day five of the final hearing, in relation to whether she could afford to retain Suburb E that the wife very reluctantly disclosed how her financial situation would “be changing shortly”.[18]
[18] Transcript 6 April 2023, p.458.
The wife had previously given evidence that she could not afford to refinance Suburb E as her borrowing capacity on her present income was limited to $340,000.00. This quantum of borrowing capacity would have been insufficient to refinance the then existing balance of the mortgage on Suburb E of $516,238.00 let alone pay the husband any cash. It was always the wife’s case that she retain Suburb E.
The wife told the court that her financial situation would be “changing shortly” because she was optimistic her income would increase, potentially doubling, which would allow her to borrow more against Suburb E. Furthermore, she was going to move interstate to live, and that as Mr H was no longer living in Suburb E she intended to rent out Suburb E to supplement her income.
Until the wife disclosed her shortly changing financial circumstances the husband was of the view that the wife had little likelihood of retaining Suburb E let alone paying him any cash. He sought that Suburb E be sold at first instance. The husband’s view was correct. Suburb E would have had to be sold if the wife’s financial situation would not “be changing shortly” for the better.
The wife did not disclose her change in financial situation until after one and a half days of her giving evidence. She did not disclose it during her evidence in chief. On 7 April 2022 only the matter of Villiers was listed before me. On 7 April 2022 the wife gave evidence between 10.15 am and 3.32 pm.
The failure of the wife to disclose these future changes in her financial situation was the second failure of the wife to disclose significant information to the husband, the first occasion being in relation to her entitlement in her grandmother’s estate.
I consider that if the wife disclosed the change to her financial circumstances and had abandoned all of her claims for spousal maintenance prior to the commencement of her cross examination by Counsel for the husband, then the length of time of his cross-examination of the wife would have markedly decreased. Until the disclosure and her abandonment of spousal maintenance claims, Counsel for the husband was required to fulsomely canvass in cross‑examination the issue of spousal maintenance and also matters relevant to any potential adjustment in the wife’s favour in relation to the section 75(2) factors in the Act.
On 7 April 2022 closing submissions took place between 3.32 pm and 5.18 pm when court concluded for the day. Notwithstanding the agreed value of the business and what I considered to be matters covered in the four valuations of the business, closing submissions addressed many of these matters including the contention of the wife that there were “rivers of cash” the husband was able to receive through the business.
Notably,
(a)the husband at the commencement of the proceedings on the first day of the hearing proposed a sale of the business, albeit at a reserve of $337,000.00 to avoid the necessity of court time being spent on the value of the business;
(b)the wife proposed on the third day of the final hearing that the business be sold at a reserve of $400,000.00; and
(c)the husband made an offer on the third day of the final hearing to sell the business at a reserve of $400,000.00.
I accept that there were still 11 items in dispute in relation to the composition of the non‑superannuation asset pool to be adjusted between the parties at the conclusion of the final hearing, and that the husband and wife were both successful and unsuccessful on either having the items included or excluded. However, my perusal of the transcripts of days four, five, and six of the final hearing does not support that only a relatively small amount of time was devoted to the issues of the value of the business, spousal maintenance, and section75(2) factors.
I consider that the agreed value of the business of $410,000.00, being $10,000.00 more than what both parties envisaged being the reserve price as of 3 March 2022 has no impact on the use of court time after 3 March 2022. The three days of court time after 3 March 2022 were in the main devoted to the value of the business, the wife’s income, her claims for spousal maintenance, and the necessary cross examination of the wife in relation to future considerations because of her late disclosure of the change in her financial circumstances.
On 30 September 2020 another judge listed the matter for final hearing for two days commencing on 11 October 2021. The matter was not reached on 11 October 2021.
On 11 October 2021 I adjourned the matter to 9 December 2021 with an estimated duration of time of three days and subject to part heard cases. The wife was represented by the same Counsel who represented her at the final hearing. The final hearing proceeded over six days. As mentioned in paragraph 140 the last three days were in the main devoted to the value of the business, the wife’s income, her claims for spousal maintenance, and the necessary cross examination of the wife in relation to future considerations because of her late disclosure of the change in her financial circumstances.
Counsel for the wife gave an estimate to the court on 3 March 2022 that the matter of Villiers would require a further one and a half days of court time. Counsel for the husband said “my view is that [Counsel for the wife] is very much the person in control of how long this case is going to take”. I listed the matter for a further two days after 4 March 2022, being day four of the final hearing, to 6 April 2022 and 7 April 2022, being days five and six of the final hearing.
Counsel for the wife pursuant to the wife’s instructions on the matters she required to be determined at the final hearing was required to undertake the course of conduct he did at the final hearing. Thus, the responsibility of the doubling of the length of the final hearing from three days to six days is ultimately the responsibility of the wife.
I consider that this conduct of the wife supports a finding of justifying circumstances in favour of the husband in relation to his costs from the conclusion of the court day on 3 March 2022 until the conclusion of the final hearing on 7 April 2022. The course of conduct by the wife during the final hearing had the effect of substantially extending the length of the hearing. Thus, the husband’s legal costs burden was increased. The husband had incurred legal costs which would otherwise not have been incurred by him.
I have also taken into account the following in relation to the wife’s conduct in determining that there are justifying circumstances in favour of the husband in relation to his costs from the conclusion of the court day on 3 March 2022 until the conclusion of the final hearing on 7 April 2022:
(a)that approximately two hours of court time on the first day of the final hearing was spent on the unsuccessful application of the wife to introduce an adversarial expert in relation to the value of the business which elongated the length of the final hearing; and
(b)the nature of the way the parties, particularly the wife, gave their evidence as stated in paragraphs 10, 11, and 12 of the reasons. Those paragraphs are as follows:
The husband was a patient witness. He was candid, responsive and forthcoming when giving his evidence. I agree with Counsel for the husband that he “gave evidence in a reasonable, balanced way. He answered all questions that were put to him. He answered them reasonably and fully… His answers were fulsome and responsive”.
The same cannot be said about the wife. Again I agree with Counsel for the husband with his description of “the wife’s evidence is characterised by her highly argumentative and belligerent responses to questions, her refusal at any stage to concede points, and indeed her insistence at all stages of retelling the version of events that she contended for… she showed a preparedness to change her evidence to suit the questions that she was being asked”.
Counsel for the wife agreed that “a lot” of the wife’s evidence was concerning…
Such other matters as the court considers relevant
I consider that I have addressed all relevant matters.
Conclusion in relation to justifying circumstances
I have considered the matters in section 117(2A) separately. Upon collectively considering and balancing them I am satisfied that in all of the circumstances there are justifying circumstances on which to ground a departure from the general rule that each party bear their own costs.
I am satisfied that there are justifying circumstances for the husband to reimburse one half of the first and second reports of DD Company to the wife.
I am satisfied that there are justifying circumstances for the wife to pay costs and disbursements of the husband of in relation to:
(a)the husband’s Application in a Case filed 24 April 2021;
(b)the three subpoenas issued on 28 May 2021;
(c)the wife’s discontinued Application in a Proceeding filed 4 February 2022; and
(d)the husband’s costs and disbursements in relation to the final hearing from 3 March 2022.
QUANTUM
The total costs of the two reports by DD Company as stated in the invoices is $13,696.00. Thus, the one half the husband is required to pay the wife is in the sum of $6,848.00.
Both parties calculate their costs in accordance with Schedule 3 of the Rules. I do not propose to interfere with the position of both of the parties that Schedule 3 in lieu of Schedule 1 of the Rules should be applied. I consider there is tacit agreement that Schedule 3 should be applied. There were no submissions by the parties to the contrary.
However, I consider that one item should be calculated on the actual costs incurred by the husband. That item is Counsel’s brief fee for three days of the final hearing actually charged to the husband. I consider that the sum at which Counsel’s brief was marked, $4,400.00 per day, was fair, reasonable, and proportionate for the purposes of rule 12.08 of the Rules.
The husband’s total costs of $33,070.16 are comprised of:
(a)$1,506.96 – the husband’s Application in a Case filed 24 April 2021;
(b)$1,768.14 – the three subpoenas;
(c)$722.22 – the wife’s discontinued Application in a Proceeding filed 4 February 2022;
(d)$13,397.84 – the husband’s solicitor’s fees of 3 March, 4 March 2022, 6 April 2022 and 7 April 2022;
(e)$13,200.00 – Counsel for the husband’s fees for three days of the final hearing; and
(f)$2,475.00 – the husband’s Court fees for three days of the final hearing.
In relation to paragraph 154(d) contained above, Annexure E of the husband’s Written Submissions in Reply details the husband’s costs of 3 March 2022 until 7 April 2022 totalling $13,597.84. I consider there is a justifying circumstance to include the cost of the husband’s solicitor’s attendance at court on 3 March 2023 pursuant to section 117(2A)(g) given the overall dynamics and circumstances of the case. I have excluded $200.00 being the approximate sum of the drafting of a costs notice and updating the procedural fairness letter that was attended to by the husband’s solicitor on 3 March 2022.
The wife is required to pay the husband’s costs in the sum of $33,070.16. The husband is required to pay the wife the sum of $6,847.00. The net result is a payment to the husband by the wife in the sum of $26,223.16.
I am satisfied that an order requiring the wife pay the husband the sum of $26,223.16 by way of costs is just in all of the circumstances.
Notwithstanding the overall outcome provides for the wife to pay costs to the husband I am not satisfied there are justifying circumstances that the wife should pay any costs of the husband in relation to the applications for costs. Both parties were successful in relation to certain items and were unsuccessful in others.
CONCLUSION
The husband seeks that the wife pay his costs within 30 days of the date of these orders. The orders will provide for payment within 60 days. I consider that is a more realistic time frame for payment given the time of year.
An order is made, as sought by the husband, that there be a sale of Suburb E if the payment is not made by the due date. This will avoid any enforcement application by the husband if there is a default and avoid either party incurring further legal costs.
Orders are made as set out.
I certify that the preceding one- hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 6 December 2023
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