Chaban & Chaban (No 3)

[2023] FedCFamC1A 162

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Chaban & Chaban (No 3) [2023] FedCFamC1A 162  

Appeal from:	Order dated 20 April 2021
Appeal number(s):	NAA 244 of 2022
File number(s):	PTW 5237 of 2020
Judgment of:	TREE J
Date of judgment:	21 September 2023
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the wife seeks her costs following the husband’s unsuccessful Application in an Appeal to extend time to appeal – Where the wife seeks her party/party costs – Where the husband does not oppose a costs order but disputes the quantum claimed – Where costs are fixed – Where the husband is to pay the wife’s costs in a fixed sum.
Number of paragraphs:	6
Date of hearing:	20 September 2023
Place:	Cairns (via video link)
Counsel for the Applicant:	Mr Rynne
Solicitor for the Applicant:	KDK Family Law
Counsel for the Respondent:	Mr Hedges SC
Solicitor for the Respondent:	Kim Wilson & Co

ORDERS

NAA 244 of 2022
PTW 5237 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CHABAN

Applicant

AND:

MR CHABAN

Respondent

ORDER MADE BY:	TREE J
DATE OF ORDER:	21 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The respondent is to pay the applicant’s costs fixed in the sum of $10,000 within 28 days of this order.

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 Chaban & Chaban (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

1. On 25 July 2023, I dismissed the husband’s Application in an Appeal filed 7 November 2022 which sought an extension of time to appeal from a superannuation splitting order made by consent on 20 April 2021.

2. On 16 August 2023, the wife made an application for costs against the husband following his unsuccessful application. Although initially quantified higher, ultimately she contended for a figure of $10,500 as being her party/party costs.

3. The husband does not oppose a costs order, but contends it should be in the sum of $5,000. For the reasons that follow, the husband will be ordered to pay the wife’s costs fixed in the sum of $10,000.

4. The wife’s schedule of costs itemised her party/party costs at scale in the range of $9,557.31-$12,337.92, the variation being reflective of the scale range for counsel’s fees. However given that the same items of work were initially claimed as indemnity costs (albeit at a higher rate), counsel for the wife accepted some of that work was not strictly within the purview of party/party costs. In response to my suggestion that a figure of $10,000 was appropriate, counsel for the wife countered with a figure of $10,500, whereas senior counsel for the husband contended $5,000 was closer to an accurate estimate.

5. I am inclined to fix counsels’ fees near the top of the range claimed at scale, say $5,000. The claimed solicitors’ costs in the wife’s schedule at scale (accepting they include non party/party work) total $6,820.97. It is likely that a formal assessment of them would see something in the order of $5,000 allowed. I cannot realistically conceive that the wife’s total party/party costs are only $5,000.

6. Doing the best I can, and accepting it is somewhat rough justice, I fix the wife’s costs at $10.000. Those costs should be payable within 28 days.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       21 September 2023