Davida & Davida (Costs)

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.