Federal Circuit and Family Court of Australia
(DIVISION 1)

Phipson & Paice [2021] FedCFamC1F 10  
File number(s):	PAC 2724 of 2016	
		
Judgment of:	HANNAM J	
		
Date of judgment:	2 September 2021	
		
Catchwords:	FAMILY LAW – COSTS – Where the wife seeks an order that the husband pay her costs in relation to property settlement proceedings on an indemnity basis or on a party-party basis – Where in the alternative the wife seeks that the husband pay her costs in relation to certain applications and matters in the course of the proceedings on either an indemnity basis or as agreed or assessed – Where the wife also seeks that the husband pay a sum of interest in relation to monies owed under court orders – Where  the husband opposes the wife’s application – Where in all of the circumstances only the husband’s non-compliance in relation to court orders justifies a costs order in the wife’s favour – Order made that the husband pay the wife’s costs for her applications filed in response to his non-compliance in a sum to be agreed or assessed – Orders also made that the husband pay the wife interest on monies owed in accordance with court orders.  	
		
Legislation:	Family Law Act 1975 (Cth) ss 117, 117B
Family Law Rules 2004 r 13.14, 17.03, 19.18  	
		
Cases cited:	Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 
D & D (Costs) (No. 2) (2010) FLC 93-435
Joyce & Fante [2013] FamCAFC 141
Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920
Penfold v Penfold (1980) 144 CLR 311
Phipson & Paice [2021] FamCA 382
Waterman and Waterman [2017] FamCAFC 23 
Weir and Weir (1993) FLC 92-338
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029  	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	100	
		
Date of hearing:	7 and 30 July 2021 	
		
Place:	Sydney	
		
Solicitor for the Applicant:	Coleman Greig Lawyers	
		
Solicitor for the Respondent:	Self-represented	

ORDERS
	PAC 2724 of 2016	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) 	
BETWEEN:	MS PAICE
Applicant
	
AND:	MR PHIPSON
Respondent

order made by:	HANNAM J	
DATE OF ORDER:	2 SEPTEMBER 2021	

THE COURT ORDERS THAT:

1.	The husband pay the wife’s costs relating to the Applications in a Case filed 16 November 2018 and 20 December 2018 on a party/party basis in a sum as agreed or assessed. 
2.	The husband pay to the wife interest of $8,276.70 owed as a result of his non-compliance with orders of 12 July 2018.
3.	The wife’s application for costs is otherwise dismissed. 

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phipson & Paice has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
HANNAM J:
introduction
1	An applicant wife (“the wife”) seeks an order that her costs in relation to property settlement proceedings with her former husband (“the husband”) be paid by the husband on an indemnity basis or on the “ordinary” basis which I assume to mean party/party costs. Alternatively, she seeks orders that her costs in relation to certain applications be paid by the husband on either an indemnity basis or as agreed or assessed.
2	The husband opposes the wife’s application that he pay any of the wife’s costs in the proceedings. 
3	The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs, and if so, whether these circumstances are exceptional to justify that a costs order be made against the husband on an indemnity basis.
4	The wife also seeks an order that the husband pay a specific sum of interest owed to her as a result of his non-compliance with court orders made in July 2018. The wife’s application for this order was reserved until the completion of the hearing to be determined along with her applications for costs.
BACKGROUND
5	The wife who is 42 and the husband who is 46 began a relationship in 2010 and finally separated in early 2016. The only child of their relationship (“the child”) is a daughter now aged eight. 
6	In February 2016 the wife initiated proceedings seeking orders for the future parenting of the child and an adjustment of the parties’ property interests including in relation to the home in which the family lived prior to separation (“the Suburb D property”). 
7	In the course of the proceedings, the parties agreed on interim orders providing that the husband have sole use and occupation of the Suburb D property and that he maintain that property and pay all associated mortgage payments and outgoings. Subsequently, in July 2018 the parties further agreed and interim orders were made to reflect this agreement (“the July 2018 orders”) that the wife transfer her interest in the Suburb D property to the husband and that the husband refinance the property so that the wife bear no liability in relation to it.
8	The July 2018 orders also stipulated that the husband pay the wife just over $300,000 within a specified period of time and that if he failed to do so the Suburb D property be sold. A further order under the July 2018 orders provided that in event that the Suburb D property was sold in accordance with the default sale provisions, the husband pay to the wife “$300,000 by way of partial property settlement…together with interest calculated in accordance with the Family Law Rules 2004 (Cth) from the 29th day following the date of these Orders until the date of receipt of such monies by the Wife”. 
9	The husband failed to pay the wife the lump sum in accordance with the July 2018 orders and did not place the property on the market pursuant to the default orders, claiming that he was prevented from selling the property until some unauthorised renovations were either removed or authorised to remain in place.
10	In December 2018 the wife filed an application seeking to enforce the July 2018 orders, in particular the orders for the sale of the Suburb D property. She also sought payment of interest on the outstanding sum owed under the same court orders.
11	It was not until a few months later that the husband paid the wife the outstanding sum owed pursuant to court orders. The wife discontinued her enforcement application, except in relation to the claim of interest in relation to the late transfer of funds. The application for these last-mentioned orders was reserved and such orders are sought as part of this application.
12	At the commencement of final hearing in September 2020, the parties agreed on a final parenting arrangement. Orders were made with their consent giving effect to this agreement which provide that they equally share parental responsibility for the child and that the child live with the wife and spend substantial and significant time with the husband. The parties were unable to reach agreement about a fair distribution of their property so the final hearing related only to the property settlement dispute. 
13	While both parties at trial agreed that an adjustment to their interests should be effected in a manner which favours the wife, there was significant dispute about the magnitude of that adjustment. In summary, the wife sought orders that she retain 75 percent of the parties’ property and the husband retain 25 percent, while the husband proposed that he retain 40 percent of the property pool and the wife retain 60 percent. 
14	The parties were also in dispute about whether the Suburb D property should be treated as an asset wholly owned by the husband, whether the sums previously received by the wife should be characterised as partial property settlement payments, the manner in which a business owned by the wife should be treated, the inclusion of a liability associated with repairing the Suburb D property and the valuation of some particular items.
15	On 9 June 2021, final orders were made largely though not completely in terms sought by the wife. In my Reasons for Judgment delivered on the same day (“the June 2021 Judgment”) I was satisfied that orders that would see the wife receive 70 per cent of the parties’ net assets and the husband receive 30 per cent were just and equitable in the circumstances. To give effect to this distribution, orders were made, in summary, as follows:
•	Within 42 days of the date of the orders (21 July 2021), the husband pay to the wife $170,995 by means of a deposit into the trust account of the wife’s lawyer; 
•	If the husband fails to comply with Order (1), after a further 21 days (11 August 2021), the husband do all acts and things required to place the Suburb D property on the market for sale by auction (and associated orders to facilitate the sale); 
•	Pursuant to any sale of the Suburb D property as a result of non-compliance, the wife has authority to approach any person appointed to assist with the sale of the property to obtain documents relating to the sale; 
•	On settlement of the sale of the Suburb D property, orders in relation to the manner and priority in which the proceeds are to be applied including a sum to cause the discharge of a mortgage secured against that property and the payment of the $170,995 to the wife and the balance as directed by the husband; 
•	Further orders to facilitate the sale of the Suburb D property and orders in the event of non-compliance with the orders associated with that sale including the appointment of the wife as trustee for sale of the property; and
•	Orders in relation to the parties retaining their sole interest in particular items of property, including each party’s business and real estate, bank accounts, motor vehicles and superannuation in their respective sole names.
16	Following delivery of final judgment, the wife pressed an application that the husband pay her costs in the proceedings. It was agreed that each party would be given an opportunity to file further evidence in relation to the question of costs and that the application would be dealt with on written submissions. After receipt of submissions of each of the parties, judgment was reserved.
17	On 13 August 2021 after I had reserved the husband also further filed an affidavit in which he repeats the written submissions contained in his Case Outline dated 30 July 2021.
THE APPLICATION
18	The wife seeks the orders to the following effect (“the primary costs application”): 
•	That the husband pay her costs in the whole proceedings on an indemnity basis [in an amount that is not particularised] or in the alternative “on the ordinary basis”; and
•	That the husband pay to her interest of $8,276.70 owed as a result of his non-compliance with “Orders of 12 July 2021” (sic); 
19	In the alternative, the wife seeks (“the alternative costs application”):
•	That the husband pay her costs relating to the Applications in a Case filed 16 November 2018 and 20 December 2018 (in relation to the husband’s non-compliance with the July 2018 orders) on an indemnity basis, in the amount of $20,990.30; 
•	That the husband pay to her interest of $8,276.70 owed as a result of his non-compliance with orders of 12 July 2021 (sic); 
•	That the husband pay her costs of preparation and appearance at court events of 17 February 2017 and 29 January 2019 as agreed or as assessed; and
•	That the husband pay costs flowing from his “non-disclosure of financial disclosure” as agreed or assessed.
THE LAW & DISCUSSION  
20	Section 117 of the Family Law Act 1975 (“the Act”) provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order for costs as it considers just.
21	The High Court in Penfold v Penfold indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify making the order. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
22	Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2).  The matters relevant in this case are as follows:
The financial position of each of the parties to the proceedings
23	There is no evidence from either of the parties as to their current financial circumstances. Neither a recent Financial Statement nor any other evidence as to their financial circumstances was adduced by either party for the purposes of this application, though each was given the opportunity to do so. 
24	The most recent Financial Statement filed by the wife upon which she relied in the property settlement proceedings is dated 12 July 2019. 
25	The most recent evidence concerning the wife’s financial circumstances is contained in an affidavit dated 21 August 2020 in which she deposes to the impact of the restrictions associated with the COVID-19 pandemic in the early months of 2020 upon her business. 
26	When considering the matters in section 75(2) of the Act for the purposes of the June 2021 Judgment, I was then satisfied that the wife continued to earn an income from her own efforts in her business and that she had the capacity to continue earning such an income in the future. There is no reason to indicate that this assessment of the wife’s capacity to earn an income has changed except for the fact that there have been further restrictions associated with the COVID-19 pandemic in 2021, which may be relevant to her capacity to earn an income. Such an impact cannot however be assumed in the absence of evidence.
27	In written submissions made on behalf of the wife, no other evidence as to her current circumstances is identified other than the evidence in relation to the impact of the COVID-19 pandemic restrictions in 2020 as noted. I cannot be satisfied as to the submission that “the wife is therefore more impecunious while the husband is likely to be able to accommodate a costs order” on the available evidence. 
28	The husband has also not adduced any evidence in relation to his current financial position, and the most recent Financial Statement that he filed for the purposes of the property adjustment proceedings is dated 2 August 2019.
29	In the June 2021 Judgment, I was satisfied that the husband continued to operate a business that he had operated for many years and continued to earn an income from it. I was also satisfied that the husband’s income increased significantly in the year the parties purchased the Suburb D property and that since separation he has been able to make mortgage payments on the loan for that property from his income. 
30	In the course of his written submissions concerning this application the husband refers in passing to various matters such as his “current low income” and asserts that his “income for the financial year to June 21 is less than half of the previous financial year to June 20”. The husband did not adduce evidence of his taxable income for the financial year ending 30 June 2020 and the only tax returns which featured in the proceedings were for the financial years ending 2011 to 2014. The husband also does not adduce evidence of his income for the year ended 30 June 2021 by means of a reliable document such as a Tax Return but rather relies upon a document titled “Statement of income and expenditure for the 12 months ended 30 June 2021” prepared by an unknown person for an unknown purpose, which in my view is of little evidentiary value. 
31	The husband also makes statements as to the current viability of his business and his various outgoings each week and asserts that he is “currently in severe financial distress” but there is no evidence to support these assertions. He also submits that he is liable to a significant levy to be paid to remedy the “concrete cancer” affecting the Suburb D property, a matter to which he deposed throughout the property proceedings without providing any evidence concerning that matter. It was not until after the evidence was closed (but prior to delivery of final judgment) that the husband had in his possession a document in the form of an invoice quantifying the particular liability as $294,000. The husband however made no application to reopen the proceedings to adduce this further evidence and if re-opened to allow for further cross-examination in relation to this liability. 
32	The husband now annexes the levy notice to his written submissions for the purposes of this application. While I also acknowledge that the sum for the levy is not insignificant, it is unclear from the document itself whether payment plans may be arranged. Thus, in the absence of further evidence I am unable to make further findings in relation to this debt other than that it appears to be a significant liability of the husband which on its face was due to be paid at around the time the judgment was delivered. 
33	As a result of the property settlement orders, each party retains their own business from which they each earn an income, and each retains a piece of quite valuable real estate registered in their respective sole names. 
34	Having regard to the foregoing circumstances, although there are some uncertainties in relation to each party’s current financial position, I consider it likely the husband has some capacity to pay a costs order if it were made. Further, even if the Court accepts the husband’s contentions that he is suffering from financial hardship and may have some immediate liability to pay a significant levy for the “concrete cancer” associated with the Suburb D property, this matter is not determinative in the wife’s costs application as impecuniosity is no bar to the making of an order for costs.  
The conduct of the parties to the proceedings in relation to the proceedings
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
35	Each of the parties contends that the conduct of the other party in the proceedings has resulted in unnecessary expense being incurred. 
36	The wife in particular submits that the husband has “substantially caused a loss of time to the Court and the parties” and that his management of the proceedings, particularly the property settlement proceedings, has seen her expend additional fees prosecuting the matter. In particular, she contends that as the husband exercised his right to represent himself in the proceedings, his lack of knowledge in relation to legal matters has resulted in her incurring additional legal fees. This has included the husband’s non-appearances at two court events and various assertions he made prior to and at final hearing which the wife claims have “no legal basis”. For example, the wife outlines that the husband delayed resolution of the dispute by challenging without foundation the findings of the single expert as to the valuation of certain assets. 
37	It is also the wife’s case that throughout the proceedings the husband failed to provide financial disclosure which she submits is relevant to an award of costs pursuant to section 117(2A)(c) of the Act and rule 13.14(a)(ii) of the Family Law Rules 2004. 
38	Although it is submitted on the wife’s behalf that she made a number of requests through her solicitor for financial disclosure, evidence has only been provided of two such requests by letters dated 1 February 2017 and 21 June 2018. It is also submitted by the wife that the Court made orders on four occasions requiring the husband to provide financial disclosure. The wife only provides evidence however of directions being given by a Registrar in relation to financial disclosure on one occasion (19 June 2018) and that direction required both parties to serve upon the other by way of letter details as to financial disclosure sought by them. 
39	Overall it is the wife’s submission that the husband did not fully comply with his obligations to provide full financial disclosure in the proceedings. It is argued that he provided nominal disclosure in May 2019, that some documents were provided in the course of the final hearing after it had commenced, but “a substantial amount of disclosure was not ever made by the husband”.
40	The wife submits that the husband’s inadequate and late disclosure was the key reason that she was unable to make offers of settlement to the husband to resolve the dispute as his true financial position remained unknown to her. 
41	The general tenor of the husband’s written submissions in relation to the wife’s conduct is that the proceedings need not have been instituted at all if the wife had not ignored his requests to spend time with the child and failed to negotiate with him about the parenting arrangements. He maintained that the only reason the wife instituted these proceedings was to pursue a claim “to get 90% of the property pool”. 
42	The husband further argues that he was burdened by the wife changing legal representation numerous times. In particular, he submits that the change of representation by the wife resulted in documents he had sent to the wife’s previous solicitor including bank statements being misplaced which lead to the claim which he submits is unfounded that these documents were not received by the wife’s solicitors. The husband also complains that at an earlier stage of the proceedings when he says he initiated discussions about settling the matter outside of court, the wife’s then solicitor was unresponsive. He maintains that this theme of non-communication from the wife’s solicitors continued for the remainder of the proceedings, particularly as he was self-represented and as a result the wife’s legal representatives showed “no interest” in him. 
43	The husband otherwise makes a litany of complaints about the wife’s various Applications in a Case filed in the proceedings that he submits were either “a dishonest stunt” by the wife or unnecessary in that the matter could have easily been negotiated outside of the court. Ultimately it is the husband’s case that he conducted himself in an “honest and cooperative manner” and that unlike the wife he has not run his case in a costly or time-consuming way. 
44	The foregoing matters raised by the husband in his written submissions about the wife’s conduct in the proceedings generally amount to no more than mere assertions unsupported by any evidence. Matters to which the husband refers are insufficient to support a finding as he contends that the wife’s conduct in the proceedings alone is responsible for the requirement that there be a hearing to resolve their property dispute. There is no evidence to support his contention that the wife ever sought 90 percent of the parties’ property and her contention in the dispute of a 75 percent entitlement is closer to the result following a hearing (of a 70 percent share in her favour) than the husband’s contentions that would see her retain 60 percent of the parties’ property. None of the complaints the husband makes about the wife’s legal representatives from time to time are supported by any evidence. 
45	I am also not satisfied that the husband alone generally bears responsibility for the delay in the proceedings being concluded or that his non-disclosure was as the wife contends in submissions made on her behalf. I do consider however that his conduct with respect to compliance with the July 2018 orders requires separate consideration and this is a matter to which I will return.
46	As set out in the June 2021 Judgment, there were various reasons for delay in the proceedings, including matters for which neither party was responsible such as a delay in obtaining an expert’s report in relation to parenting, and delays in final hearing given the restrictions associated with the COVID-19 pandemic. I also identified in that Judgment that both parties made complaints in the proceedings about the conduct of the other and in particular in relation to disclosure obligations but it was difficult to make any findings on the evidence in the proceedings as to non-disclosure. 
47	Ultimately, I was satisfied that the husband’s complaints about the wife’s non-disclosure amounted to nothing more than mere assertions unsupported by the evidence. I was satisfied that the wife’s contention was made out that much of the material provided by the husband at a very late stage, including in the course of the final hearing, ought to have been provided at a much earlier stage. However, it does not appear in these proceedings that the material provided by the husband at a late stage could have had much impact on the parties’ capacity to negotiate with one another so that a settled outcome could have been reached. The parties in these proceedings had very entrenched positions, which in the case of the husband may have been associated with his lack of knowledge about the law given that he was unrepresented, and their overall positions in relation to their entitlements appeared to be such that there was a need for the Court to make findings.
48	In her submissions in relation to costs, the wife refers to the principles in cases such as Weir and Weir (1993) FLC 92-338 (“Weir”) and Waterman and Waterman [2017] FamCAFC 23.and It is also submitted on her behalf that there is nothing on the face of the Act or the Rules that requires the party seeking costs to identify a discernible consequence of non-disclosure on the proceedings as it is the non-disclosure of itself that justifies the award of costs. 
49	As I observed in the June 2021 judgment, in accordance with the authorities, the main impact of established non-disclosure or partial disclosure of significant information by a party is that a court should not be “unduly cautious about findings in favour of the innocent parties”. In the property settlement proceedings there were no particular findings in favour of the wife that she contended were connected to the husband’s non-disclosure or late disclosure. There were however some matters about which the husband had not provided financial disclosure and in respect of which he failed to adduce documentary evidence in the proceedings in support of his various claims concerning financial matters. Where this occurred and the husband’s assertion was unsupported by documents that may be expected to have been under his control, the matter contended for was not established. In this manner the husband’s failure to provide appropriate and timely disclosure has also had some consequences in the proceedings for the parties’ respective cases.
50	Although for the foregoing reasons I do not attach great weight to the wife’s contentions about the husband’s conduct in the proceedings generally, I do consider that her evidence and contentions concerning his conduct in relation to the July 2018 orders and non-compliance with those orders deserves separate consideration. It is noted that the wife seeks separate costs orders in association with these particular applications in the event that her primary costs application is unsuccessful. 
The wife’s enforcement application 
51	It is the wife’s submission generally that she incurred significant legal fees due the husband’s non-compliance with orders made in July 2018. Those orders made with the consent of the parties required the wife to simultaneously transfer her interest in the Suburb D property to the husband and remove various caveats on the title of that property and the husband to cause the existing mortgage secured against the property to be discharged and refinanced such that the wife bear no liability for it and to make a cash payment to the wife in the sum of $300,000 by way of partial property settlement by payment into her lawyer’s trust account. The husband was also required to pay an additional sum of $1,830 (rounded up) for his share of the valuation of the wife’s business. 
52	The July 2018 orders further required that in the event the husband fails to comply with those orders within a further seven days the parties do all acts and things to cause the Suburb D property to be sold (and orders were made in relation to the manner in which that sale was to be facilitated). Further orders were made with respect to disbursement of the proceeds of sale of the Suburb D property including the discharge of the mortgage and payment to the wife of the sum of $300,000 and the smaller sum of the husband’s share of the valuation of the wife’s business. The husband was also required under those orders to pay the wife interest calculated in accordance with the Family Law Rules 2004 (Cth) from the 29th day following the date of the orders until the date of receipt of such monies by the wife. 
53	There is no dispute between the parties that the husband did not make any payment to the wife as required within 42 days of the date of the orders. 
54	There is also unchallenged evidence that as the relevant date for compliance drew closer there was correspondence between the husband and the wife’s lawyers in which the husband expressed the view that it was unlikely the bank would be in a position to settle (the transfer and refinance) by the due date (23 August 2018). Initially the husband cited delay in receiving the court orders as the reason for his inability to comply with orders on the due date. 
55	Subsequently (after the date required for compliance had passed), the husband claimed that the bank “will require an issue regarding the property resolved” before they could settle on the refinance. In an email dated 24 August 2018 the husband identified that the “issue” of concern to the bank was an unauthorised renovation on the Suburb D property that had been carried out by previous owners prior to the purchase of the property by the parties. The husband further claimed that the bank required him “to rectify this on the strata plan before they settle” and stated an intention to speak to the strata manager urgently and “submit everything required to make the changes”. 
56	By letter dated 28 August 2018 sent by email, the wife’s lawyers acknowledged the husband’s claimed difficulties with securing the transfer and refinancing and reminded the husband of his obligation to pay the $300,000 on 23 August 2018 and upon transfer. The wife’s lawyer advised the husband that the wife was content to extend the deadline for receipt of the monies to close of business 31 August 2018 and that if she did not receive the funds by that date, the lawyer held instructions to proceed with listing the Suburb D property for sale in accordance with the July 2018 orders. 
57	In correspondence the husband continued to maintain that the bank was not prepared to release the funds for a refinance due to the issue with the unapproved renovation to the Suburb D property by the previous owner. He continued to maintain that the bank was not prepared to lend money for a property which has an unauthorised renovation and also claimed that the existence of “concrete cancer” in the building and the possibility of a levy of up to $200,000 being required from the unitholders to remedy this defect meant that the property was essentially unable to be sold. The husband also claimed in that email that he was put under duress to consent to the July 2018 orders. 
58	The husband did not ever adduce evidence in the property settlement proceedings or in these proceedings from the bank or any other person in corroboration of his claim that the Suburb D property could not be sold due to the existence of the unapproved renovation or that there was any other reason why he could not have complied with the orders for payment of the $300,000 to which he had consented. There was also no dispute in the proceedings that the parties were well aware of the existence of the unauthorised renovation when they purchased the property and this feature of the property was not an impediment to the bank advancing a loan at that time. The bank also did ultimately refinance the loan without the renovation being rectified or authorisation being obtained to retrospectively approve the renovations.
59	In the property settlement proceedings, the wife gave unchallenged evidence that the husband’s delay in transferring the funds to her by reason of his persistent claims that the property could not be sold as a result of its previous unapproved renovations, caused her significant financial strain as she required the funds to find appropriate housing for herself and her children and to meet her ongoing legal fees. 
60	It appears to be common ground that over the course of 25 and 26 September the wife received a total of $50,000 from the husband via bank transfer. Correspondence between the wife’s lawyers and the husband also indicate that a further deadline of the transfer of the balance of $250,000 of 31 October 2018 was agreed between the parties. 
61	On 12 November 2018 as the husband had not paid the remaining $250,000 the wife’s lawyer’s forwarded correspondence to the husband enclosing documents to facilitate the sale of the Suburb D property and putting him on notice that the wife intended to file an application pursuant to section 106A of the Act seeking to have a Registrar of the Court execute the necessary documents for the sale as provided for in the July 2018 orders. The husband continued to maintain that the property could not be put on the market for sale “without disclosing the fact that major demolition may be required”.
62	On 16 November 2018 the wife filed an Application in a Case seeking orders that pursuant to section 106A of the Act the Registrar execute the relevant documents to facilitate the sale of the property on the husband’s behalf. 
63	Although the orders were made as sought and the relevant documents were signed by the Registrar on 26 November 2018, text messages exchanged between the parties indicate that the husband would not provide the agent access to the property and continued to maintain that difficulties with the property meant that he was unable to obtain finance. 
64	On 6 December 2018 the husband forwarded to the wife’s lawyer an email in which it was stated that his application to the bank to refinance the Suburb D property had been conditionally approved. The husband advised that the loan would progress to formal approval within five to seven days upon confirmation of his satisfactory repayment of his car loan at the time. 
65	In a response email sent the same day, the wife’s lawyers sought confirmation from the husband that he would be in a position to pay the wife the remaining balance of $250,000 and $1,830 in accordance with the July 2018 orders in addition to interest accrued in relation to that outstanding sum and the $50,000 transferred to the wife in September 2018. The wife’s lawyer also sought payment of $6,800 being fees relating to the expert valuation of the Suburb D property and other costs (in an unspecified amount) relating to conveyancing. Further in that email, the wife’s lawyer noted that the wife pressed for the recovery of costs relating to her application that the Registrar sign relevant documents to facilitate the sale of the Suburb D property but advised that she would “agree to a reduced payment of $12,000 to resolve that issue” and would not seek further costs in relation to that application if the husband were to consent to the reduced payment. Finally the wife’s lawyer asked that the husband confirm that he would be able to facilitate the refinance being formally approved “on or before 14 December 2018” given that such application was conditional upon him paying his then-current car loan. 
66	The wife did not receive any confirmation from the husband in relation to the matters raised in her 6 December 2018 email despite making “continuous requests”. In these circumstances, on 20 December 2018 she filed a further Application in a Case seeking the enforcement of the sale of the Suburb D property and payment of interest on funds owed in accordance with the July 2018 orders. 
67	The husband eventually paid the wife the sum of $258,630 (rounded up) on 22 January 2019, just over six months from when the July 2018 orders were made. The wife subsequently discontinued her enforcement application but continued to seek payment of interest. 
68	The wife submits that the husband’s overall conduct in relation to the July 2018 orders and failure to comply with such orders resulted in an “unnecessary protraction of legal proceedings generally” and that the steps she was required to take to enforce the orders substantially increased her legal costs. She indicates that the legal costs incurred by her from the date of the July 2018 orders until January 2019 when she received the relevant funds from the husband, total $20,990.30. 
69	The husband does not address his non-compliance with the July 2018 orders in his written submissions other than maintaining that he faced difficulties in obtaining finance for the property as a result of the unapproved renovations. While he also agreed under cross-examination in the property proceedings that he was not able to pay the wife the full $300,000 by the due date as a result of the “problems” associated with the property, he did not at any stage provide documentary evidence or otherwise in support of his contention that the unapproved renovations prevented him from obtaining finance. The husband also does not adduce any evidence to corroborate his claim that there existed no market for the property as a result of the unauthorised renovations, and this proposition was firmly rejected by the expert valuer in the property proceedings.
70	Against this background, I cannot be satisfied that the husband has provided an acceptable explanation as to why he failed to comply with the July 2018 orders. Accordingly, I find his conduct in this regard particularly weighty in the wife’s application that he pay her costs in relation to her two Applications in a Case filed to enforce the July 2018 orders. 
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 
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
71	In support of her application that a costs order should be made against the husband, the wife argues that regard should also be had to offers of settlement exchanged between the parties in the course of the proceedings and the overall success of their respective final orders application. 
72	The wife acknowledges that the husband made an offer to settle the dispute in September 2019 and annexes a copy of an email exchange in which the husband’s offer is outlined. She maintains however that at all stages of the proceedings the husband was “unreasonable” in his position particularly in relation to property matters. She submits that the husband’s offer to resolve the matter so that there was no need to “[pay] anything to the other side” was based on mere assertions about the value of the Suburb D property and certain debts relating to it that he claimed he was unable to afford. She insists that her counter-offer sent to the husband shortly after, proposing that the property be sold and a percentage of the proceeds of sale be paid to her, “would have remedied the husband’s concerns about the sale price and…any future debts [he] was concerned about”. 
73	In arguing that the husband’s decision to reject her counter-proposal was ill-considered, the wife submits that the husband was ultimately unsuccessful in his overall application, particularly as the Court considered his contentions about the value of the asset pool to be unfounded and did not make any cash adjustment in his favour on a final basis. 
74	The husband generally submits that he made reasonable attempts to settle the dispute outside of court including as early as April 2016 when he spoke with the wife’s solicitors about agreeing on suitable parenting arrangements for the child prior to the commencement of proceedings. The husband adduces a copy of correspondence sent at the time in which it is recorded that he was willing to “sign consent orders if required” but that he thought it was not necessary as he would “stick to this written arrangement”, suggesting he has “never withheld [the child] from the wife”. 
75	In addition to this initial proposal, the husband asserts that throughout the proceedings he participated in “every mediation arranged by the Court” and that had it not been for the wife being adamant to retain 90 percent of the property pool, the entire proceedings “could have been negotiated amicably”. The husband otherwise makes a general reference to a further occasion in 2017 when he initiated settlement discussions with the wife’s then solicitor outside of the courtroom, but does not adduce any evidence in support of this matter. 
76	While I accept that the husband made some attempt to settle the matter particularly in September 2019, I do not consider this matter weighty given that the basis upon which he made his offer related to his contentions about the value of the property and certain liabilities attached to it. These contentions were maintained by the husband at final hearing and as noted in the June 2021 Judgment were found to be unsupported by evidence or inconsistent with the evidence of the single expert which I accepted. 
77	I also accept the wife’s submission that the husband was wholly unsuccessful in his application at trial. In a similar vein to his offer of settlement made earlier in the proceedings, it was the husband’s contention at final hearing that justice and equity would be achieved between the parties if he had no further requirement to make any payment to the wife. In other words he maintained at all times that the wife was entitled to a much smaller share of the parties’ property that I found to bring about a just and equitable settlement of their dispute. 
78	For reasons given in the June 2021 Judgment, I was satisfied that it was just and equitable to make orders that would see the wife receive 70 percent of the parties’ net assets and the husband 30 percent. To give effect to this division, orders were made in largely in the terms sought by the wife with the slight adjustments, including an order that the husband pay her the sum of $170,995 and that the Suburb D property be sold in the event he does not comply with such orders for payment.
79	While I accept that the property orders made on a final basis were closer to the wife’s proposal (and her counter-offer made earlier in the proceedings) than that of the husband, little weight can be attached to this matter since the difference in dollar terms between what was proposed by her (75% in her favour) and the final adjustment to the parties’ property interests (70% in the wife’s favour), is not insignificant. In considering the justice and equity of each party’s claimed entitlements, I did not regard the wife’s claimed entitlement of a $300,000 payment by the husband as justified in the circumstances. As indicated, the husband was ordered to pay the wife the sum of $170,995, which was just over a half of the cash payment sought by the wife at final hearing.
Other matters the Court considers relevant 
80	As indicated, the wife also seeks to be paid interest for monies owed to her under the July 2018 orders unrelated to costs which is a discrete issue to which I will return. 
Conclusion 
81	Having regard to the foregoing matters, I am of the view that a costs order should be made in favour of the wife in line with her alternate application that such an order relate only to the enforcement proceedings.
82	Rule 19.18(1) of the Family Law Rules 2004 (Cth) states that the Court may order that a party is entitled to costs:
(a)	of a specific amount;
(b)	as assessed on a particular basis (e.g. 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.
83	In relation to the enforcement proceedings the wife seeks an order that the husband pay the sum of $20,990.30 which represents her costs as to this part of the proceedings on an indemnity basis. 
84	The law in respect of indemnity costs is well settled, with the relevant principles set out in the Federal Court case of Colgate-Palmolive Company v Cussons Pty Limited (“Colgate”). Sheppard J provides examples where the exercise of discretion to award indemnity costs is warranted, including:
(a)	false and irrelevant allegations of fraud; 
(b)	misconduct that causes a loss of time to the Court and other parties; 
(c)	where the proceedings were commenced or continued for an ulterior motive;
(d)	the undue prolongation of a case; or 
(e)	wilful disregard of known facts and clearly established law.    
85	The Full Court in Mansfield and Ors & Mansfield and Anor  recognised these principles as well-established law with respect to applications for indemnity costs, stating at [8] that “numerous decisions of the Full Court have endorsed the principles stated in Colgate concerning the approach to indemnity costs”.  
86	While the category of cases in which an award of indemnity costs may be appropriate is not closed the Full Court has stated in Joyce & Fante at [11]:
… In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.
87	As discussed in detail, the husband failed to explain his non-compliance with the July 2018 orders beyond making mere assertions about the difficulties with obtaining finance due to unapproved renovations completed on the property. At no stage did the husband file documentary evidence or otherwise in support of these assertions and many of the issues raised by him in this regard were contrary to the evidence of the single expert in the property proceedings. The wife asserts that the legal costs she incurred during this period of non-compliance by the husband total $20,990.30 and attaches to her written submissions a summary of her legal fees issued by her solicitors for that period. 
88	While the category of cases in which an award of indemnity costs may be appropriate is not closed, I am not satisfied that the circumstances outlined in respect of the husband’s conduct towards the July 2018 orders are “exceptional” to warrant a costs order made on an indemnity basis. Rather, they amount in my view to justifiable circumstances which make an award of party/party costs appropriate. As the amount sought by the wife represents her indemnity costs, there is no alternative other than an order that her costs be “agreed or assessed”.
89	Finally, in relation to the costs sought by the wife arising from the husband’s non-disclosure and non-appearance at two particular court events, there is in my view considerable overlap with the matters raised in this regard and the matters considered when determining whether the husband should pay the wife’s “costs of the whole proceedings”, which for the reasons given I do not consider justified in the circumstances.
90	In all of the foregoing circumstances, I dismiss both the wife’s primary and alternative costs application, except so far as it relates to an application that the husband pay her costs in a sum to be agreed or assessed relating to her Applications in a Case filed in November and December 2018 (associated with his non-compliance), and the application that the husband pay the wife interest totalling $8,276.70 which is discussed below. 
ORDER FOR INTEREST 
91	As outlined above, in both her primary and alternative costs applications the wife seeks that the husband pay her interest of $8,276.70 owed as a result of his failure to comply with the orders of 12 July 2018 providing that he pay her the sum of $300,000 within a specified period of time. 
92	The wife initially sought an order for the payment of interest in her Application in a Case filed 12 December 2018 in which she also sought to enforce the sale of the Suburb D property. Although that Application in a Case was subsequently discontinued by the wife in late January 2019 when the husband transferred the outstanding monies owed to her under the July 2018 orders, at a court event before a Registrar on 29 January 2019 the wife pressed the issue of interest which was then reserved to final hearing.  
93	The applicable law on interest accruing on moneys to be paid by orders of this Court is outlined in section 117B of the Act and rule 17.03 of the Family Law Rules 2004.
94	Section 117B of the Act provides:
(1)	Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a)	the date on which the order is made; or
(b)	the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
(2)	A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first‑mentioned order or may order:
(a)	that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b)	that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
95	Rule 17.03 of the Rules provides:
The prescribed rate at which interest is payable under paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act is:
(a)	in respect of the period from 1 January to 30 June in any year  — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and
(b)	in respect of the period from 1 July to 31 December in any year  — the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
Note   For the date from which interest is payable, see paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act.
96	In written submissions filed on her behalf, the wife clarifies that the total of $8,276.70 in interest is made up of the following sums:
•	$359.59 owed in relation to the $50,000 received by her on 26 September 2018 (and calculated in accordance with the rate of 7.5% prescribed under s 117B of the Act for the period of 35 days from 23 August 2018 and 26 September 2018); and
•	$7,917.11 owed in relation to the $251,829.61 received by her on 22 January 2019 (and calculated in accordance with the rate of 7.5% prescribed under s 117B of the Act for the period of 153 days from 23 August 2018 and 22 January 2019).
97	The husband does not address the issue of interest in much detail in his written submissions other than by maintaining that the issues with the property’s renovations were required to be rectified and that this requirement caused the delay in refinancing the property or was otherwise a factor preventing its sale. While there is evidence that he took steps to have the renovations authorised retrospectively, this did not come to fruition. No other evidence is provided by the husband to support his contentions that the “problems” with the property did cause a delay with the bank, and the fact remains that the bank did refinance the loan even though the husband did not achieve retrospective approval for the renovations.
98	In these circumstances, I am satisfied that the husband should pay the wife interest in the sum of $8,276.70 for monies owed to her under the July 2018 orders and calculated in accordance with the manner prescribed under the Act. It should be noted that although the July 2018 orders contain provisions that require interest on outstanding monies to be paid “from the 29th day following the making of orders until the date of receipt of such monies by the wife”, neither the wife’s written submissions or her Minute of Order suggest that she seeks interest to be paid in accordance with those provisions. 
99	In seeking that interest be paid pursuant to s 117B, the wife in effect seeks to be paid a sum of interest that is less than what she may otherwise be entitled to under the July 2018 orders, but in any event the difference is only of about $868. 
100	 For all of the forgoing reasons, the orders I make are set out at the forefront of this judgment. 

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.	

Associate:

Dated:	2 September 2021