Charisteas & Charisteas (No 2)

[2023] FedCFamC1A 10

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Charisteas & Charisteas (No 2) [2023] FedCFamC1A 10  

Appeal from:	Charisteas and Charisteas & Ors [2022] FCWA 88
Appeal number(s):	NAA 109 of 2022
File number(s):	PTW 4624 of 2006
Judgment of:	ALSTERGREN CJ, MCCLELLAND DCJ & ALDRIDGE J
Date of judgment:	15 February 2023
Catchwords:	FAMILY LAW – APPEAL – COSTS – Written submissions – Consideration of matters in s 117(2A) of the Family Law Act 1975 (Cth) – Where the applicant was completely successful in the appeal – Where the first respondent appears to be impecunious – Where impecuniosity is not necessarily a bar to the making of a costs order – First respondent to pay the costs of the applicant in a fixed sum at the conclusion of the property proceedings.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Lenova & Lenova (Costs) [2011] FamCAFC 141
Number of paragraphs:	8
Date of last submission/s:	4 November 2022
Date of hearing:	Heard by way of written submissions
Place:	In Chambers
Counsel for the Applicant:	Mr Robertson
Solicitor for the Applicant:	DS Family Law
The First Respondent:	Self-represented litigant
The Second to 13th Respondents:	Did not participate
The First and Second named Third Parties:	Did not participate

ORDERS

NAA 109 of 2022
PTW 4624 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHARISTEAS

Applicant

AND:

MRS CHARISTEAS

First Respondent

MR BARTON (DECEASED) AND MS EADIE AS EXECUTORS OF THE ESTATE OF MR J CHARISTEAS

Second Respondents

XYZ PTY LTD  (and others named in the Schedule)

Third Respondent

AF BUSINESS LIMITED

First named Third Party

MS D

Second named Third Party

order made by:	ALSTERGREN CJ, MCCLELLAND DCJ & ALDRIDGE J
DATE OF ORDER:	15 february 2023

THE COURT ORDERS THAT:

1.The first respondent is to the pay the costs of the applicant fixed in the sum of $18,016 at the conclusion of the property proceedings.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charisteas & Charisteas (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALSTERGREN CJ, MCCLELLAND DCJ & ALDRIDGE J:

1. On 7 October 2022, we allowed the appeal in this matter and made orders restraining certain lawyers from acting for the first respondent in the proceedings. An order for the payment of interim costs in favour of the first respondent was set aside and the matter was remitted for rehearing.

2. Pursuant to the directions for the filing of written submissions as to costs, the applicant seeks an order that the first respondent pay his costs of the appeal. Despite those directions, some time has now elapsed since the first respondent’s submissions were due, however none have been received. No application for an extension of time has been received.

3. The question of whether the circumstances justify the making of a costs order other than that provided for by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is governed by a consideration of the matters raised in s 117(2A).

4. The applicant was completely successful in the appeal, which is a powerful consideration in favour of the order sought by the applicant (s 117(2A)(g)).

5. The first respondent appears, at present at least, to be impecunious, as accepted by the applicant. However, impecuniosity is not necessarily a bar to the making of a costs order (Lenova & Lenova (Costs) [2011] FamCAFC 141).

6. Taking these matters into account, the appropriate order is that the first respondent pay the applicant’s costs of the appeal, but that payment be made at the conclusion of the property proceedings.

7. The applicant has included the costs of the preparation of the costs schedule and costs submissions in the amount claimed. It is not appropriate to include them. The costs will be fixed in the sum of $18,016.

8. The applicant also sought an order for the payment of the costs of the hearing before the primary judge. That issue does not arise from the appeal and if costs are to be sought an application will have to be made at first instance.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Deputy Chief Justice McClelland & Justice Aldridge.

Associate:

Dated:       15 February 2023

SCHEDULE OF PARTIES

PTW 4624 of 2006 NAA 109 of 2022
Respondents
Fourth Respondent:	MR BARTON (DECEASED)
Fifth Respondent:	MS EADIE AS CASE GUARDIAN FOR MRS CHARISTEAS SNR
Sixth Respondent:	MR E CHARISTEAS
Seventh Respondent:	MS SOLANO
Eighth Respondent:	MS MAGNOLI
Ninth Respondent:	ABC PTY LTD
Tenth Respondent:	THE EXECUTORS OF THE ESTATE OF THE LATE MR J CHARISTEAS IN THEIR CAPACITY AS BENEFICIARIES OF THE ABC TRUST
Eleventh Respondent:	MS EADIE AS BENEFICIARY OF THE ABC TRUST
Twelfth Respondent:	MS SOLANO AS BENEFICIARY OF THE ABC TRUST
Thirteenth Respondent:	G INVESTMENTS PTY LTD