Yanez & Yanez
[2021] FamCA 148
•25 March 2021
FAMILY COURT OF AUSTRALIA
Yanez & Yanez [2021] FamCA 148
File number(s): PAC 5502 of 2018 Judgment of: FOSTER J Date of judgment: 25 March 2021 Catchwords: FAMILY LAW – COSTS – where application for of and incidental to enforcement application – where application for indemnity costs – where non-compliance with Rule 19.08(3) – where consideration of applicable principles – where appropriate to order husband to pay costs. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Bele & Vaughan (Costs) [2012] FamCAFC 198
Collins and Collins (1985) FLC 91-603
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka v Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93 748
Penfold v Penfold (1980) 144 CLR 311
Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941
Number of paragraphs: 34 Date of last submission/s: 9 March 2021 Date of hearing: 1 February 2021 Place: Parramatta Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: AMG Lawyers & Co Solicitor for the Independent Children's Lawyer: The Independent Children’s Lawyer did not appear ORDERS
PAC 5502 of 2018 BETWEEN: MS YANEZ
Applicant
AND: MR YANEZ
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
25 MARCH 2021
THE COURT ORDERS THAT:
1.That the husband pay the wife’s costs of and incidental to the Application in a Case filed by her on 17 December 2020 in the sum of $25,000, within two months from this date.
2.That the wife have a charge as against the husband’s entitlement to a distribution from the proceeds of sale of the real estate property at B Street, Suburb C in respect of the sum of $25,000, together with interest accrued, if any, and the husband is hereby restrained from receiving any distribution from the proceeds of sale of the Suburb C property until his compliance with Order 1.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yanez & Yanez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
In ongoing property proceedings as between the primary applicant wife and the primary respondent husband, certain interim orders were made by consent on 17 April 2020. Those orders provided:
Distribution of funds held in controlled monies account
1.That Coleman Greig Lawyers (“CGL”) shall be permitted, within forty-eight (48) hours of the date of these Orders, to cause the following funds to be paid from monies held in the controlled monies account (BSB: … ACC: …18) (“the controlled monies account”):
1.1The sum of $13,200.00 to Legal Aid NSW via the Legal Aid NSW Trust Account, Westpac Banking Corporation, BSB … Account No. …89 in full and final payment of the single expert report costs in compliance with Order 7 of the Orders made 16 January 2020;
1.2For such amount as is necessary to pay any arrears of school fees associated with the child, X’s enrolment at B School (the current arrears being $8,951.25) including payment of any tax invoice issued by B School which is issued subsequent to the making of these Orders;
1.3An amount of $10,000.00, to remain in the controlled monies account on account of future school fees associated with the child, X’s enrolment at B School for the year up to and including 2020 pending those payments falling due and payable;
1.4An amount of $10,000.00 to remain in the controlled monies account on account of potential future costs to effect such works as are deemed necessary to ensure the properties are in a saleable condition, including to attend to major repairs and obtain a certificate of compliance from the local authority, or an accredited certifier in accordance with the Swimming Pools Regulations 2018 (NSW) to affect the sale of the Suburb C property;
1.5An amount of $5,000.00 to remain in the controlled monies account on account of future costs payable to C Services in connection with Orders 15 and 16 below;
1.6The sum of $93,925.00 to the wife with such amount to be categorised as partial property settlement.
1.7The balance to the Husband to be paid as follows and in the following priority (and this Order shall be considered to be sufficient authority to authorise such payments):
1.7.1An amount of $7,651.82 to the Child Support Registrar in compliance with the section 72A notice issued by the Department of Human Services to Coleman Greig Lawyers regarding outstanding child support owing by the Husband in relation to the child X, such amount to be categorised as partial property settlement for the Husband;
1.7.2In payment to Westpac Banking Corporation of sufficient monies to pay the arrears on the Westpac Home Loan account number (BSB: … ACC: …32) relating to the mortgage of the Suburb C property (the Suburb C Home Loan) upon evidence from Westpac Banking Corporation as to the amount outstanding being provided by the Husband’s solicitor to the Wife’s solicitor with such amount to be categorised as partial property settlement for the Husband;
1.7.3In payment to Westpac Banking Corporation of sufficient monies to pay the arrears on the Westpac Home Loan account number (BSB: … ACC: …66) relating to the mortgage of the Suburb D property (the Suburb D Home Loan) upon evidence from Westpac Banking Corporation being provided by the Husband’s solicitor to the Wife’s solicitor, such amount to be categorised as partial property settlement for the Husband;
1.7.4In payment to the relevant Council in full payment of outstanding Council rates and water rates;
1.7.5The balance remaining thereafter to the Husband or as he directs, which will be deemed as partial property for the Husband.
2. That for the purposes of Order 1.3 above:
2.1CGL shall be permitted, within seven (7) days of being provided by the Wife with the relevant tax invoice issued by B School, to make payment to B School in the amount specified in that invoice;
2.2In the event that, at the conclusion of the school year for 2020, there remains funds held in the controlled monies account pursuant to Order 1.3, then such funds shall be applied towards the child’s future school fees.
The Suburb C property
3.That forthwith the parties do all things necessary to ensure the property situated at and known as B Street Suburb C in the state of New South Wales being the whole of the land contained in folio identifier … (“the Suburb C Property”) is listed for sale and the parties shall do all things necessary and sign all necessary documents to sell the Suburb C property for the best price reasonably obtainable by such method of sale.
4.That for the purposes of Order 3 above, the sale of the Suburb C property shall be subject to the following:
4.1The Suburb C property shall be listed with a real estate agent as agreed between the parties and failing agreement then such real estate agent as nominated by the President of the Real Estate Institute of New South Wales with the costs of such appointment to be paid by the parties equally;
4.2The parties shall instruct a solicitor or conveyancer as agreed between the parties to act on the sale of the Suburb C property and failing agreement a solicitor or conveyancer as appointed by the President of the Law Society of NSW with the costs of such appointment to be paid by the parties equally;
4.3The sale price and listing price of the Suburb C property shall be no less than $1,400,000.00 million and be otherwise as agreed between the parties and failing agreement at a sale price and listing price (conditional upon being no less than $1,400,000.00 million) as nominated by the President for the time being of the NSW Division of Australian Institute of Valuers and Land Administrators (Incorporated) with the costs of such appointment and valuation being paid by the parties equally;
4.4That in the event that the Suburb C property has not been sold within three (3) months of the date of listing, then the sale price and listing price be varied as agreed between the parties and failing agreement at a sale price and listing price nominated by the President for the time being of the NSW Division of Australian Valuers and Land Administrators (Incorporated);
4.5That in the event that the Suburb C property has not been sold within six (6) months of the date of listing, then the Suburb C property shall be listed for auction at a reserve price agreed between the parties and failing agreement at a reserve price as determined by the President for the time being of the NSW Division of Australian Institute of Valuers and Land Administrators (Incorporated); and
4.6The parties shall do all acts and things necessary to co-operate with the real estate agent for the sale of the Suburb C property in order to facilitate the sale.
5.That upon the settlement of the Suburb C property the parties shall pay the proceeds of sale in the following order and priority:
5.1In payment of agent’s commission, advertising and selling fees and legal costs of sale;
5.2 In payment of any outstanding Council or water rates;
5.3In discharge of the Westpac Rocket Invest Home Loan Account: …32 (“the Suburb C mortgage”);
5.4One half of the balance to CGL, and the other half of the balance to the Husband’s solicitor, AMG Lawyers and Co, both payments to be deposited into an interest-bearing controlled monies accounts held on trust jointly for the parties by CGL and AMG Lawyers and Co respectively and those funds shall not be released without the express written consent of both parties or an Order of the Court.
6.That from the date of the making of these Orders, the Husband be solely responsible for meeting the minimum repayments due on the Suburb C Home Loan, as and when such repayments become due and payable.
7.That the parties shall be prohibited from further encumbering the Suburb C property whatsoever with any additional debts, loans or charges.
8. That for the purposes of Orders 3 and 4 above and without admissions:
8.1The husband shall be restrained from doing any act or thing that is likely to hinder access to the Suburb C property the period in which it is listed for sale;
8.2The husband is otherwise to ensure that the wife has access to the Suburb C property in order to conduct the sale.
The Suburb D property
9.That from the date of the making of these Orders, the Husband be solely responsible for meeting the minimum repayments due on the Suburb D Home Loan, as and when such repayments become due and payable.
10.That the Husband shall be prohibited from further encumbering the Suburb D property whatsoever with any additional debts, loans or charges, including, in relation to the Westpac Rocket Invest Home Loan Plan 2 Account: …44 (“the Equity Access Loan”).
Disclosure
11.That these Orders operate as sufficient authority to Westpac Banking Corporation to allow the Wife to have viewing access to all statements and current balances in relation to the following loan accounts:
11.1The Westpac Rocket Repay Loan Account Number …66 (“the Suburb D loan”); and
11.2The Westpac Rocket Invest Home Loan Plan 2 Account: …44 (“the Equity Access Loan”).
Other Orders
12.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
13.That the parties have liberty to apply to have this matter restored on seven days’ notice to the Court and to the other party to relist the matter for further Orders or Directions to implement these Orders.
14. That there be no Order as to costs.
Subsequently, on 17 December 2020 the wife by Application in a Case filed that day, sought certain orders to facilitate the sale of the real estate property at B Street, Suburb C, for the sale of the real estate property at F Street, Suburb D and for the distribution of certain monies held in a controlled monies account on behalf of the parties. The husband in response to the wife’s Application in a Case sought an order that it be dismissed.
The wife’s Application in a Case was subsequently listed in the judicial interim hearing list on 1 February 2021, on which date both the applicant wife and respondent husband were represented by counsel. The interim issues for determination were resolved by consent and relevantly the following orders were made:
BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT
1.Not less than 21 days before the date appointed for settlement of the sale of the property at B Street, Suburb C the husband vacate the said property and thereafter remain away from that property and as and from that time the wife shall have exclusive use and occupation of that property for the purposes of finalising the sale.
2.That the Wife shall be the appointed trustee for the sale of the Suburb C Property.
3.That for the purposes of Order 2 above, the Suburb C Property shall vest in the Wife and the Wife, as trustee, shall do all things necessary and sign all necessary documents to sell the Suburb C property for the best price reasonably obtainable by such method of sale as she may, in her sole discretion, determine and upon the sale of the Suburb C property, the Wife, as trustee, shall pay the proceeds of sale in the following order and priority:
3.1In payment of agent’s commission, advertising and selling fees and legal costs of sale;
3.2In discharge of any registered mortgage encumbrance secured against the said property, with the amount of arrears as at that date to be categorised as a partial property settlement for the Husband;
3.3In payment to the Wife of $595.00, being a half share reimbursement for the REINSW fee paid by her solely and in breach by the Husband of Order 4.1 of the Orders made on 17 April 2020;
3.4In payment to the Wife of any costs incurred by her by way of reimbursement for expenses necessary to ensure that the property was in a saleable condition prior to sale, with those costs not to exceed $5,000.00;
3.5 …
3.6 In payment to the Wife of $100,000.00 as nominated in writing;
3.7In payment to the Husband of $100,000.00 as nominated in writing ; and
3.8The balance to Coleman Greig Lawyers (“CGL”) to be deposited into an interest-bearing controlled monies account held on trust for the parties by CGL.
4.Subject to the terms of Order 1, that for the purposes of Orders 2 and 3 above the Husband shall be restrained by injunction from attending at the Suburb C property without the express written consent of the Wife.
5.That CGL shall be permitted, within forty-eight (48) hours of the date of these Orders, to cause the following funds to be paid from monies held in the controlled monies account (BSB: … ACC: …18) (“the controlled monies account”):
5.1The sum of $10,000.00 to K Company as directed in writing in full and final payment of the repair costs in compliance with Order 1.4 of the Orders made on 17 April 2020;
5.2For such amount as is necessary to pay any arrears of school fees associated with the child, X’s enrolment at B School in compliance with Order 1.3 of the Orders made on 17 April 2020;
5.3The sum equivalent to the child support arrears owing on behalf of the Husband to the Child Support Registrar on account of outstanding child support in relation to the child X, with such amount to be categorised as a partial property settlement for the Husband;
5.4The balance thereafter to remain in the controlled monies account with CGL on account of potential future costs for the Wife, as the trustee of sale, to effect such works as are deemed necessary to ensure the properties are in a saleable condition, including to attend to repairs and obtain a certificate of compliance from the local authority, or an accredited certifier in accordance with the Swimming Pools Regulations 2018 (NSW) to affect the sale of the Suburb C and Suburb D properties and if, following settlement, those funds have not been utilised, then they shall be distributed to the Wife.
Notations
A.It is noted that Ms G of H Real Estate has already been appointed by the Real Estate Institute of New South Wales as the real estate agent on the sale of the Suburb C property and that the Wife intends to proceed with such appointment.
B.It is noted that J Company has already been appointed as the conveyancer to act on the sale of the Suburb C property.
C.It is noted that, for the purposes of Orders 3.6, 3.7, and above, the parties shall each receive $100,000.00 from the proceeds of sale of the Suburb C property or Suburb D property, whichever sells first.
IT IS FURTHER ORDERED THAT
6.The wife have liberty to apply for her appointment as trustee for sale of the property F Street, Suburb D and for the sale of that property on short notice in circumstances as and from this date whereby the husband is in breach of his obligations under Orders 9 and 10 made on 17 April 2020.
7.The husband within seven (7) days from this date do all things necessary to provide to the wife an authority directed to the Westpac Banking Corporation such as to allow the wife to have access including electronic internet access to all statements and current balances of Westpac Loans …66 (the Suburb D loan) and …44 (the Equity Access loan).
8.The wife be at liberty to provide a sealed copy of these orders to the Proper Officer, Westpac Banking Corporation.
UPON NOTING THAT THE WIFE SEEKS AN ORDER FOR COSTS OF AND INCIDENTAL TO THE PRESENT APPLICATION IN A CASE, IT IS ORDERED THAT
9.The wife file and serve short written submissions in support of that application for costs by no later than 15 February 2021.
10.The husband file and serve any submissions in response by no later than 1 March 2021.
11. Upon completion of submissions, judgment as to costs is reserved to chambers.
Subsequently, written submissions were received on behalf of the applicant wife as to costs on 15 February 2021. No submissions were received from the respondent husband within the time provided for in the Court’s orders.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party has legal aid and the terms of any grant of aid;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the Court considers relevant.
In Collins and Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
Later the Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that “the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93‑748:
130.If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
It is usual for the Court to make an order for costs on a party/party basis if costs are to be ordered.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) which states:
19.18 Method of calculation of costs
The court may order that a party is entitled to costs:
(a) of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
The Rule further provides, in subparagraph (3), that:
(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre‑action procedures; and
(f) expenses properly paid or payable.
The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings.
As the Full Court again said in Phillips & Hansford [2020] FamCAFC 28; (2020) FLC 93-941:
35.Indemnity cost orders are made only in exceptional cases (Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
36.Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise” (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233).
37.In relation to the first category, it has been said that indemnity costs may be awarded where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401) and where “a party persists in what should on proper consideration be seen to be a hopeless case” (J‑Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch & Anor [1993] FCA 70 per French J at 5).
Strickland J in Bele & Vaughan (Costs) [2012] FamCAFC 198 at [26] to [28] on this issue encapsulated the relevant legal principles:
26.A useful recent discussion of the question of indemnity costs is to be found in the decision of the Full Court in D & D (Costs) (No 2) (2010) FLC 93-435. There the Full Court reviewed extensively earlier authorities including Limousin v Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248.
27.The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule exceptional circumstances need to be demonstrated.
28. As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co & Another v Cussons Pty Ltd where his Honour detailed circumstances that might qualify. Usefully, Holden J in Munday v Bowman (1997) FLC 92-784 at 84,660 drew from the decision of Sheppard J the following examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397).
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).
(c)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
It is the reality that in respect of the application, it is an application to enforce compliance with orders previously made. The application was necessitated by the husband’s default and/or delay in complying with the earlier orders.
The applicant has not informed the Court that she is bound by a costs agreement, nor provided a copy of her costs agreement or details as to its terms as between herself and her solicitors in compliance with Rule 19.08(3). Such omission is fatal to her application for indemnity costs.
However, the Court is empowered to make an order for costs in such sum as it considers appropriate.
As to the relevant considerations, the present application has been made in the context of ongoing property proceedings in respect of which both parties have a significant entitlement to property adjustment in due course. Indeed, the interim orders provide for a significant capital sum to be released to each of the parties from the proceeds of sale of the subject property. Clearly, the husband has capacity from those proceeds to meet any order for costs.
Neither party is in receipt of a grant of the legal aid in relation to these proceedings.
The application has been brought in circumstances where the order in April 2020 provided for the sale of the subject property. On 10 June 2020, the husband was put on notice that he had not signed the requisite document requesting the appointment of an agent for the purposes of the sale, and that in default there would be an application for the appointment of a registrar to sign that document and seeking an order for costs as against him.
Subsequently, proceedings were listed before a registrar on 18 August 2020 on which date the registrar signed the document on behalf of the husband to facilitate the appointment of a selling agent.
Subsequently, the husband has continued to obfuscate and delay in relation to the sale. The present application for enforcement arose as a consequence of his conduct. As a consequence of the application coming before the Court, the wife was by consent appointed trustee for the sale of the subject property. Such order and application would have not been necessary if the husband had complied with his obligations under the orders of April 2020.
Otherwise, prior to the filing of the present application, the husband was by letter, dated 20 November 2020, put on notice that in the absence of his cooperation in listing the property for sale, the application would be made seeking in substance the orders that were ultimately made by consent. Clearly, the husband’s avoidance of his obligations imposed by orders of April 2020 were at best imprudent by him and at worst completely without regard to his obligations under those orders.
Clearly, the wife has been substantially successful in seeking orders to enforce the orders of April 2020. In such circumstances, it is appropriate that there be an order for the husband to pay her costs, incurred by her as and from 18 August 2020, on which date the matter was before the registrar to sign documents on behalf of the husband by reason of his default.
The wife is not entitled to an order for indemnity costs. However, the Court is at large by reason of the provisions of rule 19.18 as to quantum.
It is submitted on behalf of the applicant wife that her costs incurred of and incidental to the appointment of the registrar, to sign documents on the husband’s behalf, are in the sum of $1,477, and the costs of and incidental to the enforcement application are in the sum of $35,949.
In all of the circumstances, it is appropriate that the husband be ordered to pay a substantial portion of those costs and it is considered appropriate that there be an order for costs as against the husband in the sum of $25,000.
Orders will be made accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 25 March 2021
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