Coston and Spratt

[2017] FamCAFC 192

FAMILY COURT OF AUSTRALIA

COSTON & SPRATT [2017] FamCAFC 192

FAMILY LAW – APPEAL – COSTS – Application for costs of discontinued appeal – Where the appellant discontinued the appeal the day preceding the procedural hearing – Where the respondent incurred costs unnecessarily – Where costs awarded in a fixed sum.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Coston

RESPONDENT: Mr Spratt

FILE NUMBER: CAC 412 of 2014

APPEAL NUMBER: EA 49 of 2017

DATE DELIVERED: 13 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 September 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 17 March 2017

LOWER COURT MNC: [2017] FCCA 492

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That Mr Spratt pay the costs of Ms Coston in the appeal EAA 49 of 2017 in the amount of $1,500 within 8 weeks of today’s date.

2. That Mr Spratt pay the costs of Ms Coston in relation to the Application in an Appeal filed 14 August 2017 in the amount of $500 within 3 months of today’s date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coston & Spratt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 49 of 2017
File Number: CAC 412 of 2014

Ms Coston

Applicant

And

Mr Spratt

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an Application in an Appeal filed 14 August 2017 by Ms Coston (“the applicant”) for costs arising from an appeal filed by Mr Spratt (“the respondent”) on 23 May 2017.  By that Notice of Appeal, the respondent sought to challenge all orders made by Judge Hughes on 27 April 2017. 

2. The details of the grounds of appeal indicate that it is the property settlement orders that were under challenge, and to the extent that the Notice of Appeal suggested that the respondent also sought to challenge the large number of parenting orders made by her Honour, he had, in fact, ticked the wrong box at paragraph 8. 

3. In any event, on the day immediately preceding the procedural hearing to settle the draft appeal index, the respondent took steps to discontinue the appeal.  Those steps were taken after court hours by an email sent to the Eastern Region Appeals Registry at 8.54pm on 17 July 2017.  The respondent would not have expected the court to be staffed at that hour of the night.  It was discontinued the following morning, more or less simultaneously with the time when the conference was due to commence by telephone.

4. The effect of this is that the respondent to the appeal and applicant in this application had retained counsel to appear for her on the settling of the draft appeal index and counsel duly attended by telephone for the purpose unnecessarily. 

5. The Chief Justice issued a certificate that this matter was appropriate to be dealt with by a single judge.

Discussion

1. The question of costs is dealt with in accordance with s 117 of the Family Law Act 1975 (Cth) (“the Act”). The effect of the provision is that parties pay their own costs unless the court is satisfied that there are circumstances which justify an order for costs.

2. The applicant points to the fact that she has incurred legal expenses in relation to an appeal that did not proceed.  The argument is that the costs were incurred unnecessarily. 

3. The respondent explains that he commenced the appeal with the belief that the appeal had some merit but having received information from the Appeals Registrar in relation to the costs involved in preparing the appeal books, he decided that, on a cost-benefit analysis, including the strain and stress of ongoing litigation, that the better course was to discontinue the appeal.

4. I am not in a position to determine whether the appeal was one that was likely to engage appellate intervention.  However, I do observe that her Honour’s reasons for judgment do not appear to place any weight on the fact that it would be many years before the respondent would be able to access his superannuation and that there does not appear to be a discussion about the different characteristics of superannuation compared to the other property available for distribution.  Given the quantity of superannuation, one might have expected that that was something that would feature in her Honour’s deliberations.  My point being that there might have been at least an argument to be made in relation to the approach taken to the treatment of superannuation when deciding on the overall settlement of property.  In other words, it could not be said that the appeal was frivolous.  However, that only goes so far.

5. It remains unarguably the fact that the applicant did incur costs unnecessarily and nothing that has been put to me today by the respondent is persuasive of any reason why that fact should not be recognised in an adverse order for costs against him.  The question then becomes the quantum of those costs. 

6. The applicant deposes that she has incurred solicitor costs of some $979 and counsel’s costs in the amount of $1,320.  In relation to the solicitor’s costs, they have been prepared by reference to a cost agreement and that cost agreement is not in evidence.  This is not a case which would justify indemnity costs and the hourly rate claimed by the solicitor well exceeds the amount permissible under the rules.  I also observe that the solicitor has purported to claim GST.  The scale of costs is inclusive of GST and GST would not be allowed as a separate item.  I make the same observation in relation to the memorandum of fees rendered by counsel for the applicant. 

7. In my view, the evidence justifies an order for costs set in the amount of $1500, which self‑evidently is inclusive of GST.

8. In addition, I will make an order for costs of this application in the amount of $500.  The applicant’s offer to settle the costs application should have been given more serious consideration than appears to have been the case.  Had it been accepted, this hearing would not have been required and the applicant would not have incurred these further unnecessary costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 September 2017.

Associate: 

Date:  19 September 2017