Davida & Davida (Costs)

Case [2011] FamCAFC 61

FAMILY COURT OF AUSTRALIA

DAVIDA & DAVIDA (COSTS) [2011] FamCAFC 61

FAMILY LAW - COSTS OF APPEAL – where appellant husband sought that the Full Court order that the respondent wife pay his costs of, and incidental to, his successful appeal against a property settlement order, as well as the costs of the first instance proceedings – where the husband further sought that such orders for costs should be assessed on an indemnity basis – where the Full Court determined that the leaving aside the issue of power, it would not as a matter of discretion make an order with respect to the costs of the first instance proceedings – where the Full Court determined that there were justifying circumstances to support an order that the respondent wife pay the appellant husband’s costs of, and incidental, to the appeal – where the Full Court determined there were no exceptional circumstances to justify an order for indemnity costs, but that such costs be assessed on a party-party basis in default of an agreement.

Family Law Act 1975 (Cth)
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D Costs (No. 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
APPELLANT: Mr Davida 
RESPONDENT: Ms Davida 
FILE NUMBER: BNC 2360 of 2009
APPEAL NUMBER: NA 32 of 2010
DATE DELIVERED: 10 March 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, O’Ryan and
Ainslie-Wallace JJ
HEARING DATE: 10 March 2011
LOWER COURT JURISDICTION: Federal Magistrates Court of Australia
LOWER COURT JUDGMENT DATE: 12 February 2010
LOWER COURT MNC: [2010] FMCAfam 102

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr T. Matthews
SOLICITOR FOR THE APPELLANT: Berek & Associates
COUNSEL FOR THE RESPONDENT: Ms J. Hogan
SOLICITOR FOR THE RESPONDENT: Murdoch Lawyers

Orders

  1. That the respondent wife pay the appellant husband’s costs of and incidental to the appeal, to be assessed on a party-party basis in default of agreement. 

IT IS NOTED that publication of this judgment under the pseudonym Davida & Davida (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 32 of 2010
File Number: BNC 2360 of 2009

Mr Davida

Appellant

And

Ms Davida 

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Finn J

  1. On 2 March this year (2011), this Court made orders in which we allowed an appeal against an order for property settlement made by Federal Magistrate Coates on 12 February 2010.  We set aside that order and made a new order for property settlement.  In our orders we also provided an opportunity for the parties to appear before us today to make any submissions which they would wish to make, in relation to the costs of the appeal.  As a result, Counsel for both parties have appeared before us today.

  2. On behalf of his client, Counsel for the appellant husband seeks that we order that the wife…

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AGLC
Davida & Davida (Costs) [2011] FamCAFC 61
Case
[2011] FamCAFC 61
Decision Date

CaseChat Overview and Summary

In the matter of Davida & Davida, the Full Court of the Family Court of Australia was called upon to address the issue of costs associated with an appeal against a property settlement order. The husband, the appellant, sought an order that the wife, the respondent, pay his costs of and incidental to the appeal, as well as the costs of the first instance proceedings, with the costs of the appeal to be assessed on an indemnity basis. The wife opposed the application, arguing that the appeal was not wholly successful and that exceptional circumstances were not present to warrant an indemnity costs order.

The legal issues before the court were whether there were justifying circumstances to support an order for the wife to pay the husband’s costs of the appeal, and if so, whether these costs should be assessed on an indemnity basis or on a party-party basis. The court had to consider the principles governing costs in family law matters and the specific circumstances of the case, including the outcome of the appeal and the conduct of the parties.

The court found that there were justifying circumstances to support an order that the wife pay the husband’s costs of and incidental to the appeal. However, the court determined that there were no exceptional circumstances to justify an order for indemnity costs. Instead, the court held that the costs of the appeal should be assessed on a party-party basis in default of agreement between the parties.

The court's final orders were that the respondent wife pay the appellant husband’s costs of and incidental to the appeal, to be assessed on a party-party basis in default of agreement.

Orders

Orders of the court

1.

That the respondent wife pay the appellant husband’s costs of and incidental to the appeal, to be assessed on a party-party basis in default of agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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