INTERIM COSTS AND “DOLLAR FOR DOLLAR” ORDERS
- The wife seeks an order that the husband pay $60,000 in a lump sum into the trust account of her solicitors for payment of her legal costs and that a subsequent “dollar for dollar” order be made.
- The husband opposes both orders as sought by the wife on the basis that the costs of litigation could be extremely expensive and the wife has alternative sources of funding.
The Law and Discussion
- It was observed in Paris King Investments Pty Ltd v Rayhill that there are a number of juridical bases for an order of the type sought by the wife. The Full Court in Zschokke & Zschokke had observed that there was some uncertainty as to the source of jurisdiction to make the orders of the type sought but were of the opinion that the decisions in Wilson & Wilson and Poletti & Poletti established that where there are pending proceedings under s 79 of the Act for property settlement, an order for funds for litigation expenses may be made pursuant to s 80(1)(h) or s 117(2).
- In Strahan & Strahan at  the Full Court said:
In Paris King Investments Brereton J, with whom on this point we agree, at  said that Zschokke “establishes that it is important, when contemplating an order for interim provision for litigation expenses, to identify the relevant source of power because it is the source of power that determines the necessary preconditions and relevant considerations for making the order”.
The Full Court went on to say at :
… If the source of jurisdiction is s 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. …
- The wife brings her application for this order under s 117 of the Act and foreshadows that an application based upon s 80(1)(h) utilising s 79 will be made at a future date.
- In Strahan & Strahan (supra) the Full Court said:
If the source of jurisdiction is s 117 of the Act, in Zschokke at 83,217 the Full Court said:
If the order is to be made under s.117(2) then, in our view, the matters contained in s.117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g).
- Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that it in the opinion justify it in doing so. Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.
- 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 the making of an order for costs. 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.
- Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. Few of the considerations in section 117(2A) are relevant at this stage in the proceedings but the matter most relevant in this case is the financial position of each party.
- It is clear that the husband has the control of a significant pool of assets, worth millions of dollars, and the wife has limited access to funds as outlined earlier in these Reasons. Counsel for the wife submits that an order for the husband to pay a lump sum to the wife and a “dollar for dollar” costs order will “level the playing field” between the two parties given the large disparity between their current earning capacities and financial resources and the sum being sought should cover the majority of her costs.
- Counsel for the husband submits that the costs of litigation may be extremely expensive, over $100,000, and he would have to sell assets in order to make payments to the wife as he has no access currently to liquid finances. He further submits that the wife has the capacity to borrow money from her family in order to fund her costs of litigation.
- In In the Marriage of J U and T Poletti, Ellis, Strauss and Butler JJ quoted Ngyh J with approval at :
…It is rather, as it certainly was in Wilson and Wilson, a situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case…
- It clear from the evidence, given the number of properties, trusts and companies in which the husband has an interest, that this matter is complex and has the potential to require that the parties appear in court on numerous occasions in relation to both the parenting and property aspects of the matter.
- As noted in Lesley & Lesley (supra) the question of whether a court makes an order for the provision of funds by one party to the other to enable the continuation of litigation is separate and distinct from the question of enforcement of such an order which may be dealt with at a later date. I do not accept the husband’s position that it is appropriate to for the wife to borrow money from her family to fund litigation particularly in circumstances where the capacity of the wife’s family to lend her money is not the subject of these proceedings and the husband controls a large pool of assets which ensures that he does not have to seek financial assistance from his family in order to pay his legal costs.
- As any order for litigation costs will be made under section 117 of the Act such an order would be taken into account in determining any application for costs made by either party later in these proceedings.
- In my view, given the substantial disparity in assets and financial resources available to each party, there are justifiable circumstances in this matter for an order for litigation costs to be made against the husband.
- Accordingly I make an order as set out at the forefront of these Reasons for the husband to pay to the wife $60,000 in lump sum litigation costs and make a “dollar for dollar” costs order.
Read more here
Sunshine Coast / Brisbane / Gold Coast / Townsville / Queensland / Australia