C v C (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 09 May 2014
• Docket Number: Divorce Jurisdiction 2011 No 22
• Date: 09 May 2014
• Court: Supreme Court (Bermuda)

[2014] Bda LR 51

In The Supreme Court of Bermuda

Divorce Jurisdiction 2011 No 22

Between:

C

Petitioner

and

C

Respondent

Mr D Kessaram for the Petitioner

Mrs G Marshall for the Respondent

The following cases were referred to in the judgment:

Gojkovic v Gojkovic (No 2)FLR [1991] 2 FLR 233

Araujo v AraujoBDLR [2008] Bda LR 11

Davy v Zouppas-DavyBDLR [2005] Bda LR 25

Costs — Ancillary relief — Calder bank offers — Whether conduct of husband should lead to costs on an indemnity basis

JUDGMENT of Wade-Miller, J

1. This is an application for costs. The petitioner (JC) and the respondent (BC) are now divorced but for convenience they are referred to in this judgement as the wife and the husband respectively.

2. The petitioner (the wife, JC) and the respondent (the husband, BC) were married on 4 February 2006. They were married after a period of cohabitation. They have one child who was born in November 2007. The wife filed her petition for dissolution of the marriage in February 2011. A divorce decree nisi was made absolute in June 2011.

3. The matrimonial assets consist of two items:

i. the property known as ‘A’ which stood in the wife's sole name and was depreciating because of market conditions

ii. the business known as ‘R’ which was in the possession and control of the husband and which was of disputed value.

4. The wife and the husband both filed applications for ancillary financial relief. The husband filed his application on 11 May 2011 seeking a lump sum provision. The wife filed her application on 19 May 2011. According to the submission from counsel for the husband, the wife sought inter alia: maintenance pending suit, periodical payments for herself and for the child of the marriage, transfer of property, avoidance of the disposition order in respect of the business, and a lump sum provision. The wife also sought by a writ of summons dated 3 May 2011:

‘damages for fraudulent conversion relating to [the business], a mandatory injunction for the transfer of assets and undertakings to the wife of the shares in [the business], an account of profits; dividends or other payments; an order for payment of all amounts found due on the taking of the account; interest and costs.’ (Submission from counsel for the husband, Mrs Marshall, para 9)

5. Counsel for the wife, Mr Kessaram, submitted that the wife should receive all her legal costs and expenses from 11 May 2011 i.e. approximately 28 days from the date of her offer made on 11 April 2011 on the indemnity basis. Alternatively, the wife should be awarded her costs from 11 May 2011 on the standard basis, with the costs of the trial to be awarded to her on the indemnity basis to be taxed if the amount put forward was not agreed.

6. Counsel for the husband, Mrs Marshall, submitted that the husband is entitled to his costs in the civil proceedings commenced by the wife on 3 May 2011, and also to those costs associated with the S41 MCA application as the wife did not make an offer of settlement that the husband could have accepted.

The wife's case

7. In support of the wife's contention, Mr Kessaram submitted that there were two matrimonial assets: (i) the property known as ‘A’ and (ii) the family business ‘R’.

8. The wife always maintained that she...