M v W (No. 2)[2009] QDC 344

DISTRICT COURT OF QUEENSLAND

1. [1]
   Before the Court is the defendant’s application for orders that:

2. [2]
   The underlying claim filed five years ago on 21 October 2004 was brought under Part 19 of the Property Law Act 1974 seeking a declaration as to the existence of a de facto relationship between the parties and by way of property adjustment payment to him of $200,000 and the vesting in him of a business, motor vehicle and AMP shares (already his) valued at $11,300 in aggregate.  A relationship began in Victoria in December 1997, long before the enactment of Part 19; there were disruptions, the precise details and effect of which the parties disagree about.  The parties removed to Queensland and agree that the relationship came to an end just short of five years along.  On the pleadings there were issues as to this court’s jurisdiction based on subsistence of the relationship.

3. [3]
   The defendant’s financial circumstances appear to have been superior to the plaintiff’s; the disparity increased when she received benefits from her mother’s estate. According to the Statement of Claim, at the date of separation, the plaintiff’s liabilities included $18,820 owing to the defendant under a loan arrangement.

4. [4]
   It is understandable that the defendant may not welcome the plaintiff’s claim. They are both 72 years old. She has been reluctant to comply with the obligations forced on a person in her position by the rules and practice of the court to make disclosure in respect of her property and finances. The first of the costs orders referred to above was made by Judge Noud; it required disclosure of documents in identified classes within 14 days (including documents to do with a company, JCRR [or JCCR] Pty Ltd) and also payment of the plaintiff’s costs of and incidental to the relevant application on a standard basis. The matter was before me on 27 July 2008. My note shows that I rejected the plaintiff’s application for judgment in default or a guillotine order under r 225 and that I indicated agreement with the plaintiff that there ought to be disclosure by the defendant regarding the role of the company of which she was a director entitled to 8 of the 12 shares. The parties were given time to work out appropriate directions to advance the matter which were made later in the day in accordance with an initialled draft (providing, inter alia for 20 interrogatories) and costs were reserved.  On 14 November 2008 Judge Forde made a further order for disclosure against the defendant and an order for costs (apparently on the standard basis, although the State Reporting Bureau Transcript appears to indicate an earlier thought of indemnity costs).  There was a day in court before Judge O'Sullivan on 24 December 2008 when there was talk of a guillotine order having been made by Judge Forde, something not easily reconciled with the state of the court file.  The matter was back before his Honour on 23 January 2009 leading to publication of reasons (M v W [2009] QDC 55) for orders for judgment for the plaintiff but “conditional on the assessment of damages” and for “costs of and incidental to this application including any reserved costs to be assessed or agreed”. 

5. [5]
   Paragraph 13 of the Reasons asserts that the Order of 14 November included a guillotine order under r 225(2)(b) which would lead to a judgment for $200,000 in the plaintiff’s favour. His Honour said:

“The defendant has acted in a contumelious manner in this case.  She is now 71 years of age.  There have been numerous property transactions, and one can understand the difficulty of obtaining information from various sources.  However, attempts by her to comply with orders in the past and the present guillotine order have been half hearted, verging on contemptuous.  It is therefore not appropriate to extend the time.  However, even if judgment be entered, there will need to be an assessment of the damages claimed of up to $200,000.00.  A party may obtain a judgment conditional on the assessment of damages where unliquidated damages are claimed (r 284(2)).  In the present case a similar situation applies for non-compliance of an order (r 507 and see the discussion at [507.1]).  In the present case the defendant will not be entitled to challenge liability but may contest the quantum of damages.  The assessment will be conducted as a trial (Hesz v Sotheby [1960] 1 [WLR] 285 referred to in UCPR Civil Procedure [509.4]).”

6. [6]
   No mediation occurred, although his Honour had ordered one “to take place in the event that there has been no mediation to date”. Nevertheless, the parties arrived at a compromise embodied in a consent order filed on 15 June 2009 which is in the following terms:

“1. That pursuant to section 333 of the Property Law Act 1974, the Defendant pay to the Plaintiff the sum of $90,000 on or before 27 July 2009 by payment to the Trust Account of Barry & Nilsson Lawyers.

2. That the Defendant discharge and thereby indemnify the Plaintiff for any debt owed by the Plaintiff to the Defendant as at the date of these orders.

3. That subject to the abovementioned orders, the Plaintiff and the Defendant retain to their exclusive possession and ownership all assets, real or personal, vested or contingent and howsoever held standing to their name.

4. That subject to the abovementioned orders, the Plaintiff and the Defendant indemnify each other for any debt or liability standing to their name.

5. That the Plaintiff’s claim be otherwise dismissed.”

7. [7]
   Document 26 on the Court File is Form 59A prepared under r 666 bearing the plaintiff’s solicitor’s signature dated 5 June 2009 and the defendant’s solicitor’s signature dated 10 June 2009.

8. [8]
   After the filing of that order, the plaintiff took steps to have the three costs orders in his favour rendered useful by applying ex parte for appointment of a costs assessor.  The Registrar has made an appointment.  The costs statements forwarded by the plaintiff’s solicitors to the defendant’s by letter of 26 May 2009 aggregate something in excess of $22,000, substantially in excess of an estimate of $15,000 which had been given at some time in the past.  No notice of objection was forthcoming, the defendant’s solicitor’s letter of 16 July 2009 asserting there never was a necessity to serve a Notice of Objection on the basis that the Consent Order was understood by the writer and the defendant to be in full discharge of all claims including costs.  Both now depose to beliefs accordingly, it being asserted that the compromise would never have happened had the costs orders been outside it.  There is affidavit material from the plaintiff’s side deposing to beliefs that existing costs orders were not compromised. 

9. [9]
   I reserved consideration of the application to allow counsel on both sides the opportunity to locate authority and make submissions bearing on:

1. (a)
   the effect of a compromise of a proceeding (silent on the costs aspect) on the enforceability of costs orders already made by the court; and

2. (b)
   whether the importance of preserving finality in litigation which to all appearances has been compromised by the parties applies in proceedings under Part 19 of the Property Law Act 1974 in the same way as in ordinary litigation.

10. [10]
    Uninstructed by authority, my view is that existing costs orders remain effective between relevant parties and should proceed to assessment and enforcement. Uninstructed by authority, I would adopt the view that finality is as much to be prized in Part 19 proceedings (the main purposes of which include facilitating the resolution of financial matters: see s 255(a), also s 255(g)) as in conventional civil litigation. Reference was made to the court’s power to make an order by consent in s 333(1)(n), also to the flexibility introduced by the power to vary orders (including to set aside or substitute other arrangements). The only possibility of s 334 applying would appear to be a miscarriage of justice because of “another circumstance” as referred to in subsection (1)(a).

11. [11]
    The defendant’s application, of course, is brought under r 668. However, Mr Brennan for the plaintiff submitted that, just as Part 19 provides a different costs regime to that of the Uniform Civil Procedure Rules (LF v RA (No. 2) [2006] QSC 072 at [5]; G v J [2002] QCA 335 at page 3) it provides in s 334 a different regime for setting aside orders.

12. [12]
    This is not a simple issue. Both the section and r 668 apply to facts or circumstances arising after the making of an order; however, the former applies in a much more limited way and, speaking generally, r 668 would appear to be available far more generally. The new circumstances under the Act must make it “impracticable” for the impugned order to be carried out. “Impracticable” means impossible in practice, according to the Australian Concise Oxford Dictionary, “that cannot be put into practice with the available means or unsuitable for practical use or purposes”, according to the Concise Macquarie. That characterisation cannot be applied to the defendant’s paying over $90,000. Indeed, it was proclaimed on the defendant’s behalf that she had drawn a cheque in that amount some months ago which was held by her solicitors ready for handing over. Whether relevant circumstances have arisen which make it “impracticable” for the costs orders which should be treated as made under Part 4 for purposes of s 334 to be carried out is a separate question, not before the court for the moment. I would not think that it does.

13. [13]
    In my opinion, the court should be ready to grant the defendant any appropriate relief she may be entitled to seek under s 334 (however her application was based) I am not persuaded that the Act assists her. Of the subparagraphs under s 334(1), (b) has already been rejected, (d) cannot apply as the parties relevantly have no child who might suffer hardship. It would seem odd in the extreme to allow the defendant’s own default to make it “just and equitable to vary the (consent) order”: I am unable to identify causative “circumstances that have arisen because of the default”, for the purposes of (c). That leaves (a) which, on the assumption that “another circumstance” is not to be read down by reference to the other circumstances specified, all of which call up some reprehensible conduct (fraud, duress, suppression of evidence, giving of false evidence or the failure to disclose matters as required by Part 19), calls for examination of the general issue raised by the defendant. The heart of Mr Gordon’s submissions was that whether the outcome in this proceeding is “just and equitable”, this being a main purpose of Part 19 (see s 255(c)) must be determined by taking into account the impact of matters such as costs orders which affect the “property distribution at the end of a de facto relationship in relation to the de facto partners”, to quote s 255(c). The argument is that payment of $90,000 by the defendant to the plaintiff would represent a just and equitable property distribution but that if an additional amount by way of costs had to be paid, the distribution would be different and cease to be just and equitable. I accept it is a short step easily taken to regard subjecting the defendant to an outcome that is not just and equitable as a miscarriage of justice for the purposes of s 334.

14. [14]
    In my opinion, in the typical case, there is likely to be a range, possibly a very wide range, of outcomes that might properly and reasonably be seen as “just and equitable”, it would be a rarity that only one outcome could be defended. I am of the view that what is just and equitable should be assessed objectively, that an outcome does not cease to deserve that characterisation just because one or more of those required to live with it may genuinely believe it is not just and equitable. It is very much the defendant’s case that the parties reached their compromise in pursuit of some principle that the plaintiff ought to receive some identified percentage (within a range) of the relevant asset pool. The plaintiff was said to have nominated 10% to 15%. The defendant swears that “the claim was initially settled for $100,000 inclusive of costs”. The plaintiff’s solicitors on 20 March 2009 wrote to the defendant’s allowing a week for the making of a further offer of settlement, failing which “we will proceed to have our costs assessed”. $100,000 was offered – which, in context, could be seen as inclusive of costs, although nothing was said. The offer was “accepted” albeit late, with a stipulation that payment be made within the 21 days of orders being made by consent. The stipulation was revised to “within 14 days” of a letter of 23 April 2009. The immediate response was to withdraw the offer, but advise the defendant’s preparedness to pay $80,000 and discharge the plaintiff in respect of an overdue loan obligation said to be $20,000.

15. [15]
    Notwithstanding the apparent volunteering of the loan arrangement in the Statement of Claim, the defendant’s solicitors rejected the notion of indebtedness on that account, seeking to hold the defendant to their offer of $100,000. It is clear that at this stage of negotiations the defendant’s position was that indebtedness between the parties on specific accounts would have to be the subject of payment. One might well ask, rhetorically, why the same ought not to apply to indebtedness on account of costs arising under court orders. The plaintiff’s solicitors had in terms made alternative “all-up” offers specifying that costs orders he had would not be enforced by his solicitors’ letter of 24 February 2009 (identifying the “just and equitable range of outcomes (as) between 10% and 15%”) involving payment to him of $130,000 within 28 days or $140,000 in instalments payable over 7 months. The letter seized on the defendant’s former counsel’s having told the court the defendant’s net worth was approximately $1.1 million in July 2008.

16. [16]
    The plaintiff’s solicitors on 26 May 2009 served three costs statements aggregating $22,839.91, requesting a cheque in that sum “in order to avoid further unnecessary costs”. The response made the offer ultimately accepted. It is a letter of 4 June 2009:

17. [17]
    The reply, dated 5 June 2009 referred to a letter “wherein your client offers to settle the proceeding” and advises “our client accepts that offer”.

18. [18]
    Useful as it may be to many, including the courts, to approach adjustments of parties’ property rights on the basis of some percentage apportionment, in my opinion the compromise reached by the parties here by reference to a specified sum of money concludes the issue. From the first, compromises proposed or under consideration had been expressed in dollar terms. Whether the parties gained some satisfaction in their own minds, or thought that they were mounting arguments that might persuade the other in referring to percentage shares, in my opinion does not matter; it certainly does not have the consequence that a dollar figure agreed on is to be tested all over again against some percentage benchmark. The varying estimates of the relevant asset values indicate that much would depend on the state of financial and property markets on the particular day when the exercise is conducted. The effects of the “global financial crisis”, noted when the offer of 4 June 2009 was made, have probably abated over the months since.

19. [19]
    The picture of the parties’ financial relationship appears to be complete only by bringing in:

1. what transpired during their co-habitation;

2. the loan arrangement;

3. the three costs orders.

20. [20]
    The offer and acceptance in June 2009 and the consent and court order whereby they were perfected represent, in my view, a self-contained series of events. The specific inclusion of the loan in the compromise makes it significant, in my opinion, that nothing was done about the costs orders. If the background has to be gone into, it must be noted that the serving of costs statements would appear to have inspired the making of the accepted offer, arguably making it more significant that costs were not mentioned, as they had been much earlier in the year. I am not persuaded that the making of offers inclusive of costs the subject of court orders historically binds the plaintiff to a proposition that every offer, including every offer from the defendant is not only inclusive of costs but leads to court orders about costs being unenforceable. Here the defendant’s solicitor (paragraph 14 of his affidavit filed 5 October 2009) requests the court “to either set the Consent Order aside completely or to bury^[1] it to reflect the parties’ wishes that it be inclusive of costs”.  The court should take that strong course only on the basis of a sufficiently compelling case.  The defendant’s explanation for the reduction of the compromise amount from $100,000 to $90,000 in terms of the loan (leaving intact the notion that the costs orders would not be pursued) is arguable, but ultimately not persuasive in this application in which she bears the onus of proof.

21. [21]
    On the assumption that r 668 may be relied on, for a recent statement of applicable principles where it is sought to set aside a consent order, Mr Brennan cited Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd [2009] QSC 98 [9]-[10].  Essentially, what is required are grounds or reasons, such as mistake or misrepresentation, that would enable a contract to be invalidated or varied.  There is also reliance on Paulyn Investments Pty Ltd v Collins Food Group Pty Ltd [2008] QSC 14 at [18] in citing Taylor v Johnson (1982-83) 151 CLR 422 confirming that a case like the present of unilateral mistake (there being nothing to suggest the plaintiff joined in the compromise on the basis of any mistake) it must be shown that the other party was aware of a mistaken belief on the other side and set out to ensure that the other side did not become aware of the mistake.  The propositions confirmed in these authorities are well known.  Accepting that the defendant and his solicitors acted in the mistaken belief that her obligations under costs orders would no longer apply, nothing suggests that, at relevant times, on the plaintiff’s side there was any awareness of or responsibility for that state of affairs. 

22. [22]
    Mr Gordon submits that the matter should not be approached as one of contract, but as one depending on the exercise of the court’s discretion to do what is just and equitable under Part 19 of the Property Law Act; exercise of the court’s discretion is crucial, even if the order is made by consent.  An interesting feature here is that the use of r 666 means that the parties’ contract does not have “superadded the command of a judge” as referred to in Fairmont Suites.  A judge was never asked to endorse the compromise which the court is now asked to set aside because of circumstances that render its operation unpalatable to one of the parties.  With fuller knowledge, it is said, the consent order fails the test of being “just and equitable”.  In my assessment, the defendant has shown no more than that what she asserts were her expectations have been overturned.  Taking an objective approach, the extent to which that may happen does not in my opinion take the outcome out of the range of what is just and equitable.

23. [23]
    Although r 668 is of general application, its physical proximity to r 666 Consent orders (to which it makes no reference) may lead to the conclusion that it would be odd if a consent order coming about by use of r 666 could not be set aside or varied by use of r 668, recourse being required to be had to the Act. Assuming r 668 is available, I accept Mr Gordon’s submission based on Rankin v Agen Biomedical Ltd [1992] 2 Qd R 435 that references to entitlement in r 668(1) do not require any absolute right to relief, but are “capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion”.  I do not find much assistance in another authority on which he relied, KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13 decided under a precursor of r 668 in relation to self-executing or “guillotine” orders.  It refers to Woods v Sheriff of Qld (1895) 6 QLJ 163, on which considerable reliance was placed for its reference to such rules allowing relief against continued operation of a judgment or order if new facts come into existence or are discovered which render its enforcement unjust.  This brings us back to consideration of what is just and equitable.  There is no concern here sufficient to move the court in the defendant’s realisation of an omission to do something about the costs orders when the offer was made to do anything under r 668 or indeed under s 334.  In my judgment, the extent of costs in issue, considered on its own or on some basis of proportionality, causes no real concern. 

24. [24]
    Another respect in which Part 19 was said to give rise to special considerations has to do with the weight to be placed on the finality of judgments and securing so far as possible an end to litigation. See Ivi Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 at 453-54.  Again, it was said that in matters of property adjustment, finality has to yield to ensuring that what is just and equitable prevails, if necessary by setting aside or changing orders.  There may well be cases where things change in Part 19 situations, for example, where the interests of a child are unexpectedly jeopardised, but there is no good reason on the present facts for undoing the compromise.  The consequences of doing so will be the inconvenience and costs flowing from the parties having to prepare for and conduct a hearing on the merits.  In a way, they are sent back to where they were in 2004; the old matter of the defendant’s reluctant and inadequate disclosure may have to be re-opened.  There is no reason to place any confidence in Mr Gordon’s suggestion that if the consent order is set aside and the parties are sent off for a hearing on the merits, mediation would lead to a new compromise.  Mr Gordon was entirely unreceptive to the court’s suggestion that his client might undertake to pay the costs of further steps in the proceeding the parties are forced to pursue if the consent order be set aside, or even of the mediation.  It would be oppressive in the extreme to the plaintiff to return him to the stress of involvement in pending litigation and to subject him to the costs obligations inherent in trying to get back to the stage reached last June.  The ordinary rule set out in s 341 means that he would have to bear his own costs.

25. [25]
    Regarding costs, it must be accounted unusual that the defendant suffered three adverse orders for costs, having regard to s 341. I do not know whether what has happened bespeaks a tendency in the court to deal with costs in the way that would happen in ordinary civil proceedings not involving Part 19. On some occasions costs have been reserved (by me on 21 July 2008, by Judge Forde on 3 November 2008 and by Judge O'Sullivan on 24 December 2008). It has been made clear by the Court of Appeal in G v J [2002] QCA 335 that consideration of the factors enumerated in s 341 is mandatory for the court, rather than discretionary and that “a demonstrated failure to consider any of the matters that were relevant will amount to an improper exercise of the discretion (to order costs)” (see page 5).  There, an order for costs of an adjournment of a Part 19 proceeding were ordered against the applicant in this court and he was ordered to provide security for costs.  The first mentioned order survived appeal, as the relevant factors could be seen to have been taken into account by the primary judge; the order for security was set aside.  LF v RA (No.2) cited above provides an object lesson in dealing with the section 341 seriatum. 

26. [26]
    Subject to the possibility of sufficient grounds being established for the re-opening of a Part 19 proceeding which has culminated in an order for property distribution (well in excess of what has been put up here), where parties presumed to be of full understanding and professionally advised have been bent on identifying a dollar sum that one would pay to the other, I am of the view that bringing an end to litigation is as much to be desired in Part 19 proceedings as in any others.

27. [27]
    It is appropriate to note authorities identified by Mr Brennan bearing on s 334(1)(a):

28. [28]
    In a supplementary submission dated 14 October 2009, Mr Brennan resiled from the use of “explained” as the later judgment did not refer to the earlier one. On the finality point, he provided a useful reference to AMA v CDK [2009] QSC 287 especially at [17], [19] and [36] in a proceeding said to be brought pursuant to Part 19 in which the discretion to set aside or vary an order pursuant to r 667 or r 668 was not exercised.

29. [29]
    The court is grateful for the supplementary submissions from both parties. An interesting reference which tends to fortify me in the view that the costs orders made in this court remain enforceable (unless there is some effective agreement to the contrary or a successful appeal) is Somerset v Ley [1964] 1 WLR 640 at the headnote reads:

“The plaintiffs took out an originating summons in the Chancery Division in connection with the administration of an estate of which they were the executors.  The summons, to which one of the respondents was an infant, was opposed, and at the hearing the plaintiffs were represented by leading counsel.  The hearing was subsequently adjourned by Cross J. into chambers.  Later, it was stood over in the hope that a compromise might be arrived at.  A compromise was in fact arrived at and was sanctioned by Cross J. in open court on behalf of the infant respondent.  The order did not say that the matter had been a chambers matter, and although it provided, inter alia, that the plaintiffs’ costs should be taxed and paid out of the residuary estate of the testator, it made no express provision for the fees of leading counsel who had been instructed on their behalf.  The taxing master, referring to Appendix 2, Part X, para. 2(3), of the Supreme Court Costs Rules, 1959, took the view that the matter had been a chambers matter and that, as the order did not contain express provision for the fees of leading counsel, he could not allow them.  The plaintiffs applied by motion to Cross J., asking either that a certificate for those costs should now be granted, notwithstanding that it had not been asked for at the hearing, or that the order should be amended under the slip rule to provide for them:-

Held, that, the order having been a consent order, it could only be amended under the slip rule to include a provision for the fees of leading counsel if the agreement between the parties upon which it had been based had contained, expressly or by implication, a term to the effect that they should be provided for; and that even assuming that it was formally possible to issue a “collateral certificate” without amending the original order, such a certificate could only be given on the same principle; on the facts of the present case, there had been no such term, and the motion must, accordingly, be dismissed.”

30. [30]
    In a helpful judgment Cross J said at 646-47:

“I think it is quite clear that none of the lawyers who prepared and approved the minutes and were present at the joint consultation had this point in mind.  In those circumstances, I think that the test of the problem before me is this:  supposing I, when the case came before me, had thought of the point and had played the pat of the officious bystander postulated by Mackinnon L.J. and had said:  “What about the costs of the plaintiffs’ ‘leading counsel?’, what would the reaction have been?  I have no doubt whatever that counsel for the plaintiffs would have said: ‘Of course they are to be included.’  What would have been the reaction of counsel for the infant?  Mr Wilmers is in a difficult position, because he is asked to throw his mind back to what would have happened two years ago on a hypothesis which was not in fact realised, but he says, and I accept this completely, that he is sure that he and Mr Arnold, whatever their own views might have been, would have felt obliged to consult the guardian ad litem as to whether or not the words, “including the fees of ‘leading counsel’ should go into the order.  Mr Wilmers said that he remembered vividly that it had not been at all easy to bring the guardian to the point of agreeing to a compromise at all, and that neither counsel nor their instructing solicitors would in the circumstances have taken it on themselves to vary the agreed terms by a hair’s breadth without her consent.

So one has to ask what was her state of mind.  Here I am in a difficulty, because no formal evidence has been put before me as to what her state of mind was.  She has not sworn an affidavit or been examined but certain points have been conceded by Mr Wilmers.  It is conceded that she knew that leading counsel had been instructed on behalf of the plaintiffs, and I think it is conceded (at all events, I shall assume) that she had no personal knowledge of paragraph 2(3) and did not interpret that she had not had put before her any estimate of the costs which included specifically any fees for leading counsel.

I think that I am justified in assuming in favour of the plaintiffs that had she been asked before the order was drawn up:  “Do you think this order will include leading counsel’s fees?”, she would have said: “I think it will.  They have had leading counsel.  The costs will be taxed by the court, but I presume they will include something for Mr Peter Foster.”  That is what I think she would have said.

But does that carry the plaintiffs far enough?  If this point had been specifically mentioned to her, if Mr Arnold and Mr Wilmers had come to her and said:  “Look here, the formula which we have put to the other side and which they have agreed may not include the costs of leading counsel, and they want an express reference made to them,” is there anything which would have prevented her, if she had been disposed to be difficult about the matter, from saying:  “Well, I do not know about that.  If that formula will not include the costs of leading counsel, that is just too bad.  But I am not disposed to budge a hair’s breadth from what I have agreed to.”  With the best will in the world – my sympathies, as I have indicated, are with the plaintiffs in the matter – I find it impossible to say that she could not, if she so desired, have taken that line.  Therefore, I am, with regret, obliged to refuse the application.  I say ‘with regret’ because I cannot help thinking that if the mater had been raised in October 1961, Mr Arnold and Mr Wilmers would probably have advised the guardian ad litem that it was in the spirit of the arrangement that this addition should be made to the order, and it may be that at that date, under pressure from them, and perhaps with a little help from me, she would have agreed to that addition.  Unfortunately, that was not done, and now Mr Wilmers tells me that he and his instructing solicitors have done their best to induce the lady to agree, but that she will not now do so.  So, as I say, with regret, I feel obliged to refuse the motion.

Motion dismissed.”

31. [31]
    It was accepted by Mr Brennan that it was appropriate to accept the assertions as to beliefs held by the defendant and her solicitor regarding the costs orders for the purpose of allowing additional time to raise objections to the costs statements provided. Accordingly, the orders to be made on the application should be that the defendant be allowed additional time, expiring 21 days from the publication of these reasons to object to any item in the plaintiff’s costs statement pursuant to r 706, that the application otherwise be dismissed and that the defendant pay the plaintiff’s costs of and incidental to it to be assessed on the standard basis if not agreed.

32. [32]
    The costs order is made in the circumstances where the defendant, presumably aware of s 341, sought costs of her application against the plaintiff. That is a fact or circumstance within s 341(4)(g) of the Property Law Act.  In respect of the other factors which the court is required to consider I observe that:

1. (a)
   The defendant’s income, property and financial resources comfortably exceed those of the defendant;

2. (b)
   The court has no information before it as to whether any of the parties is legally aided;

3. (c)
   The defendant’s conduct in relation to disclosure deserves condemnation and her whole conduct of the proceeding gives every indication of a determination to provide nothing to the plaintiff by way of property adjustment, not a cent of the agreed amount having been paid to the plaintiff since the filing of the consent order, notwithstanding that as to the bulk of the agreed amount, it could be paid, even if something was withheld to cover the costs claims;

4. (d)
   In my view, if the r 666 consent order is regarded as made under the Part, the preceding results not only from the defendant’s failure to comply with the consent order, but from her determination not to comply with it;

5. (e)
   She has been wholly unsuccessful in her application, notwithstanding the indulgence obtained in respect of objections to the costs statements;

6. (f)
   The court has no information regarding offers to settle.

33. [33]
    Mr Gordon’s Supplementary Outline of Argument dated 19 October 2009 in respect of the finality issue reinforces what he said at the oral hearing, namely that a court making orders pursuant to Part 19 “is not merely to adhere to the consent order as presented but must embark on a process to determine for itself whether the order made is just and equitable in the circumstances”.  There is some support to that proposition in Dickey, Family Law (5^th) p 562.  My opinion is that, absent some circumstance putting the court on notice or generating reasonable suspicion that a consent order is vitiated by some troubling circumstance, which I suppose may be the very terms of the consent order, the court should not be expected to go behind it.  I accept there will be many cases in which for purposes of s 334 or r 668 applications, the court should look behind a consent order with a view to possibly changing it.  The court here has considered the evidence presented and concluded that no sufficient case granting the applicant defendant relief has been shown.

34. [34]
    My associate searched for cases which considered the effect of a compromise upon costs already made in litigation and not satisfied which does not mention them. Nothing in point was located. However, a large number of cases were found which bespeak a practice of including in compromises provision that such costs orders be waived or revoked – obviously convenient as the parties and solicitors can close their files. There is no reason why a compromise should not expressly preserve existing costs ordered. Where it is silent, I think the effect is the same. The cases located in the search included many acknowledging the importance of existing orders and the care taken to preserve or vacate them as appropriate, where, say, a general order for costs of the proceeding is made which is not to stand in the way of continued efficacy of particular orders against the “winning” party. The cases located include: Mednis v Chand & Ors [2003] NSWSC 680; Britannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32; Gibson v Stevedoring Industry Finance Committee (1998) 20 NSWCCR 203; Alafaci v Zacka & Cepeda [1996] NSWLEC 263; Ingot Capital Investment & Ors v Macquarie Equity Capital Markets & Ors [2008] NSWSC 199; Lesvos Pty Limited & Anor v Penrith Whitewater Stadium Limited & Anor [2007] NSWSC 335; Langley v Age Company Ltd [2002] VSC 243; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No. 3) [2007] NSWLEC 569; Meka v The Shell Company of Australia (No. 2) [2005] FMCA 700; Rivkin v John Fairfax Publications Pty Limited [2004] NSWSC 671; Pacific Indemnity Underwriting Agency Pty Ltd v Maclaw No. 651 Pty Ltd & Anor [2005] VSCA 165; Danidale Pty Ltd (t/a Bernie Cornfoot & Sons Earthmoving) v Abigroup Contractors Pty Ltd [2007] VSC 552; Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA No. 5) [2009] FCA 571; Crump & Ors v Equine Nutrition Systems Pty Ltd (t/a Horsepower) & Anor (No. 2) [2007] NSWSC 25; Bauhaus Pyrmont Pty Ltd (in liq) in the matter of Andrew H Wily as Liquidator [2007] NSWSC 936; Paul Alan v Anderson Ron atf The Marchs Family Trust [1997] QBT 174.  Here, it seems the compromise is deficient.  That does not to my mind mean it should be set aside.  It means that the parties are stuck with its (possibly unintended) effects.