Eide & Yoxall (No 3)
[2025] FedCFamC1F 37
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eide & Yoxall (No 3) [2025] FedCFamC1F 37
File number: MLC 2724 of 2021 Judgment of: WILLIAMS J Date of judgment: 31 January 2025 Catchwords: FAMILY LAW – COSTS – DE FACTO RELATIONSHIPS – Where the applicant seeks costs following a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the parties – Where the declaration was upheld by the Full Court – Where the applicant seeks special costs – Consideration of relevant principles under s 117 of the Act – Where the respondent enjoys a vastly superior financial position – Where the respondent was wholly unsuccessful in the first instance threshold proceedings and the appeal proceedings to the extent that the appeal did not displace the underlying finding of a de facto relationship between the parties – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the respondent pay the applicants costs of the threshold hearing fixed at $159,296.86 – Order that the respondent pay the applicants costs of this application fixed at $5,025.85. Legislation: Family Law Act 1975 (Cth) ss 90RD, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 3, r 12.17
Cases cited: Eide & Yoxall (No 2) [2024] FedCFamC1F 320
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
Marsden v Winch (Costs) [2008] FamCAFC 32
Marvis & Marvis [2023] FedCFamC1A 34
Massalski & Riley (No 2) [2021] FamCAFC 152
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Sfakianakis & Sfakianakis (2019) 59 FLR 419; [2019] FamCAFC 54
Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6
Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Yoxall & Eide [2024] FedCFamC1A 200
Division: Division 1 First Instance Number of paragraphs: 69 Date of last submission: 20 January 2025 Date of hearing: 26-28 June 2023; 4, 6, 7 September 2023 and 4-5 March 2024 Place: Melbourne Counsel for the Applicant: Ms Tulloch and Mr Ellis Solicitor for the Applicant: Jag Lawyers Counsel for the Respondent: Ms Fisken and Ms Ferrari Solicitor for the Respondent: Belleli King & Associates ORDERS
MLC 2724 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EIDE
Applicant
AND: MR YOXALL
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.Within 28 days of these orders, the respondent pay to the applicant, the sum of $164,322.71, being the applicants’ costs and disbursements calculated as follows:
(a)Her costs and disbursements of the threshold hearing for a declaration that a de facto relationship existed between them, fixed in the sum of $159,296.86; and
(b)Her costs of this application fixed at $5,025.85.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Eide & Yoxall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
On 16 May 2024, after an eight-day hearing about whether the parties were in a de facto relationship, I made orders (“the May 2024 orders”) and published reasons. Order 1 of the May 2024 orders declared, pursuant to s 90RD of the Family Law Act 1975 (Cth), the parties were in a de facto relationship between March 2017 and December 2020.
The respondent appealed Order 1 of the May 2024 orders, and on 29 October 2024 the Full Court of this Court allowed the appeal to the extent that Order 1 made on 16 May 2024 was set aside. In lieu thereof, the Full Court declared that a de facto relationship existed between the parties, ending in December 2020. The basal finding that the parties were in a de facto relationship was not disturbed; Yoxall & Eide [2024] FedCFamC1A 200.
Order 2 of the May 2024 orders provided for the applicant to file and serve within 28 days any written submissions as to costs. Order 3 provided for the respondent to file and serve any written submissions as to costs within 28 days of receipt of the applicant’s submissions, if any.
On 14 June 2024 the applicant filed her written costs submissions, and on 12 July 2024 the respondent filed his reply to submissions.
The applicant’s claim for costs could not be determined pending the outcome of the respondent’s appeal. Following the decision of the Full Court in the appeal, both parties were invited, via email from my associate, to advise whether they wished to be provided with an opportunity to make further oral costs submissions, but both declined to do so, instead agreeing to provide further written costs submissions.
For the reasons that follow, an order will be made for the respondent to pay the applicant’s costs and disbursements of the eight-day threshold hearing, and the costs incurred in drafting the costs submission, fixed in the sum of $164,322.71.
Background
The extensive background of the dispute between the parties as to the characterisation of their relationship is set out at paragraphs [47]–[96] of my reasons in Eide & Yoxall (No 2) [2024] FedCFamC1F 320, which I incorporate and rely on in these reasons.
Proposals of the parties and documents relied upon
The applicant seeks as her preferred position, that the respondent within 28 days pay her costs of the threshold proceedings of $208,159.98, characterised as “special costs”. The costs comprise solicitor’s fees in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) fixed in the sum of $52,866.50, counsel’s fees billed in the sum of $138,460, and disbursements of $16,833.48.
The applicant also seeks her costs of the costs submissions of $5,650.80 comprising solicitor’s fees in accordance with Schedule 3 to the Rules, of $2,763.3, and counsel’s fees of $2,887.50 for drafting the submissions.
The secondary position of the applicant is that the respondent pay her costs of the threshold proceedings on a party/party basis calculated at $159,296.86. The difference between the two claims for the costs of the threshold proceedings is that counsel’s fees in the secondary position, are claimed in accordance with Schedule 3 of the Rules, rather than the amount actually billed.
The secondary position of the applicant pertaining to the costs submissions, is that the respondent should pay her costs of this application being a total of $5,025.85, which is explained by a reduction of counsel’s fees claimed.
The applicant relies on the following documents as identified in her written submissions:
(a)Orders made on 16 May 2024 by the Honourable Justice Williams;
(b)Judgment of Honourable Justice Williams delivered on 16 May 2024;
(c)Financial Statement of Ms Eide filed on 4 October 2021;
(d)Paragraphs 32 to 37 of Affidavit of Ms Eide sworn on 24 October 2022 and filed on 1 May 2023;
(e)Costs Notice filed by Ms Eide on 4 March 2024;
(f)Financial Statement of Mr Yoxall filed on 2 September 2021;
(g)Paragraph 7 of Affidavit of Mr Yoxall filed 2 September 2021;
(h)Costs Notice filed by Mr Yoxall on 4 March 2024;
(i)Orders made on 19 May 2022 by the Honourable Justice Williams:
(i)Trial listed for 28 November 2022;
(ii)Applicant to file 35 days prior to trial date (i.e., 24 October 2022);
(iii)Respondent to file 21 days prior to trial date (i.e., 7 November 2022).
(j)Respondent’s Application in a Proceeding dated 9 November 2022 and filed 21 November 2022 (seeking adjournment of final hearing);
(k)Affidavit of Mr SS filed on 9 November 2022;
(l)Affidavit of Mr Yoxall filed 21 November 2022;
(m)Orders made on 22 November 2022 by the Honourable Justice Williams:
(i)Trial listed for 19 June 2023;
(ii)Respondent to file by 6 April 2023;
(iii)Both parties’ costs reserved.
(n)Respondent’s Application in a Proceeding dated 4 April 2024 and filed on 17 April 2023 (seeking that the trial date on 26 June 2023 be vacated);
(o)Affidavit of Mr Yoxall filed 4 April 2023;
(p)Orders made on 26 April 2024 by the Honourable Justice Williams;
(i)Respondent’s Application in a Proceeding filed 17 April 2023 be dismissed.
(ii)Respondent to file by 19 May 2023.
(iii)Both parties’ costs reserved.
The respondent seeks orders that each party should bear his or her own costs with respect to the de facto threshold hearing in accordance with the usual presumption of s 117 of the Act. Should the Court make a costs order, then costs should be ordered pursuant to scale, and in default of agreement as to quantum, the costs should be taxed.
In the respondent’s costs submissions, there was no apparent distinction drawn between the costs of the threshold proceedings and the applicant’s claim for the costs submissions.
The respondent did not refer to documents relied upon.
I turn now to the applicable legal principles pertaining to whether a costs order should be made.
LEGAL PRINCIPLES
Parties to proceedings under the Act generally bear his or her own costs (s 117(1)), although if there are circumstances which justify doing so (s 117(2)), a court may make a costs order. In considering whether to make a costs order, the Court must have regard to certain mandated factors (s 117(2A)).
In Massalski & Riley (No 2) [2021] FamCAFC 152 at [8], the Full Court said, an order for costs:
…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that the relevant matters in s 117(2A):
… must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.
The relevant factors in s 117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of a costs order. No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400). It is not necessary for each of the factors listed in s 117(2A) of the Act to be met for the Court to make a costs order (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123 at 124).
The matters set out in s 117(2A) of the Act which are relevant to costs in this matter and identified by both parties in their submissions are the financial circumstances of the parties, the conduct of the parties in relation to the proceeding, and whether a party has been wholly unsuccessful in the proceedings.
I will turn to each identified factor.
Financial circumstances – s 117(2A)(2)
The applicant submitted the respondent enjoys a vastly superior financial position.
The applicant is employed as a healthcare professional and receives a modest income. The parties 6-year-old child, X, lives with her and spends limited time with the respondent. The applicant does not own any real estate, has minimal assets and liabilities which include outstanding legal fees. In her affidavit filed 1 May 2023, at paragraphs [32]-[37] she deposes to having spent the majority of her savings on legal fees. The applicant also relies on her Financial Statement filed 4 October 2021, wherein she deposes to her weekly personal expenditure outweighing her weekly income.
In contrast to the applicant’s financial circumstances, it is not disputed the respondent is a very wealthy man. In his Financial Statement filed 2 September 2021, he did not provide any information about his financial circumstances. At paragraph [7] of his affidavit filed 2 September 2021, the respondent deposed as follows:
Due to the complex structure of the [F Group], it is difficult to describe with precision my income or wealth. I do not have a personal bank account and all accounts are processed through the [F Group]. The [F Group] has a net value of between $100 million and $200 million.
Despite the limited information before the Court about the financial circumstances of the parties, during the threshold proceedings, the respondent acknowledged that he is “a wealthy man of means”.
The respondent agrees that the applicant is in paid employment as a healthcare professional and receives child-support of $431 per week from the respondent, although he notes that her actual income was not deposed to in either her trial affidavit or her financial circumstances. The respondent concludes that the applicant was represented during the course of the proceedings and has had the financial resources available her to meet significant legal fees.
I accept the respondent is a man of substantial means, as referred to by both the applicant and respondent in their respective costs submissions. That was also apparent from the evidence in the threshold proceedings before me, including the luxurious lifestyle led by the parties, the respondent’s purchase of expensive gifts for the applicant including jewellery, representation at trial by both Senior Counsel and Junior Counsel and his statement at paragraph [7] of his affidavit filed 2 September 2021, referred to above.
The conduct of the parties in relation to the proceeding – s 117(2A)(c)
In her written submissions, the applicant primarily relies on the respondent’s failure to comply with orders for filing of his court documents.
She refers to his failure to comply with procedural orders made 19 May 2022, which listed the trial on 28 November 2022. Pursuant to these orders, the respondent was required to file his trial affidavit is 21 days prior to trial, that is on 7 November 2022, and he failed to comply with that order.
On 21 November 2022, the respondent filed an Application in a Proceeding dated 9 November 2022, wherein he sought an adjournment of the final hearing because in late 2022 he had undergone surgery for “[an elective procedure] and to investigate [symptoms]” (“the first adjournment application”). The respondent had been prescribed various medications following the surgery and according to his solicitor, who swore an affidavit on 9 November 2022, he was unable to provide instructions.
In support of his adjournment application, the respondent filed an affidavit on 21 November 2022 referring to his recent surgery, painkillers which had been prescribed, and that he also had Covid-19.
On 22 November 2022, I made orders adjourning the trial to 19 June 2023, for the respondent to file his documents by 6 April 2023, and reserved both parties’ costs of that application.
The applicant conceded in her written submissions that the Court had no choice other than to adjourn the trial, but nonetheless submitted the respondent’s conduct “was entirely inappropriate and lacked any regard to [the applicants] entitlement to have her application heard in a timely manner”.
She is critical of the respondent’s choice to undergo surgery during the period when his documents should have been prepared and filed with the Court, and of his lack of explanation about the timing of the surgery and its impact on the trial.
On 4 April 2023, two days prior to the day on which the respondent was due to file his trial affidavit, he filed a Further Application in a Proceeding seeking a further adjournment of the trial (“the second adjournment application”). In his affidavit filed 4 April 2023, the respondent referred to having been charged by Victoria police in or around late 2021. He deposed that in early 2023, a Magistrate delivered judgement following his committal hearing and proceedings were listed to be mentioned in the County Court in April 2023. The respondent sought an adjournment of the threshold proceedings pending the completion of the criminal proceedings, although he failed to depose when the criminal proceedings would be completed. He also failed to previously mention that he considered the criminal proceedings could be a potential impediment to the determination of the threshold issue.
On 26 April 2023, the Court made orders dismissing the Application in a Proceeding and reserved the costs of both parties.
Thereafter, the respondent failed to comply with procedural orders for filing of his court documents, with no explanation as to why the affidavits he sought to rely upon were not filed in accordance with procedural orders.
In his written submissions, the respondent rejects any suggestion that his Application in a Proceeding filed 21 November 2022 was misguided and inappropriate. He submits he had legitimate medical complications resulting in a lengthy surgery which caused him to experience post-operative symptoms including “brain fog” which related to the prolonged period of time he was under anaesthesia, and he was medically unfit to provide instructions to finalise his trial material.
Ultimately, because the Court acceded to the first adjournment application, the respondent submitted he was justified in his conduct. He further submits that none of the contentious issues about his surgery were put to him during cross-examination, and the Court cannot now be invited to presume matters about his surgery.
The respondent further submits that the applicant’s complaints about the second application to adjourn the proceedings, filed on 17 April 2023, are unjustified. He contends the application legitimately raised his right to silence on matters founded on the extant criminal charges, and matters deposed to by the applicant in her trial affidavit. His right to silence conflicted with his right to respond to various matters raised by the applicant.
On 26 April 2023, orders were made for the applicant to redact the paragraphs of her affidavit which related to the pending criminal charges, which evidence was to be quarantined, so that the trial could proceed with the applicant being cross-examined, and the respondent not being required to give evidence or be cross-examined until he understood the nature of the criminal charges he would eventually face. Ultimately, by the time of the trial there was no need for a further adjournment to enable the respondent to be cross-examined.
As to the first adjournment application, I am satisfied that an adjournment was warranted given the medical situation of the respondent. However, it is still not clear why the respondent chose to have surgery at that particular time, which included elective surgery during the time when he should have been aware any complications arising therefrom may have had an impact on whether or not he could comply with procedural orders to file documents and whether the trial could proceed as scheduled. I do not accept the respondent’s complaint, as articulated in his supplementary submissions, that the conduct of the applicant in opposing the first adjournment was somehow unreasonable. The applicant was entitled to resist the application, and raised the legitimate concern as to why the respondent chose to have an elective surgery, when he well knew his obligations to file documents in the proceedings and the trial date.
As to the second adjournment application, I agree the respondent was entitled to exercise his right to remain silent and that may have conflicted with his right to respond to allegations made in the affidavit of the applicant, however after the potentially offending paragraphs of the applicant’s affidavit were redacted, the trial proceeded on the scheduled date.
I will take into account the conduct of both parties when weighing up the relevant considerations.
Whether a party has been wholly unsuccessful in the proceedings - s 117(2A)(e)
Both parties agreed that the effect of the May 2024 orders was that the respondent was wholly unsuccessful in the threshold proceedings. They disagree how the outcome of the appeal affects my consideration of s 117(2A)(e).
The applicant asserts that the respondent was unsuccessful in the appeal proceedings to the extent that the appeal did not displace the first instance underlying finding of a de facto relationship between the parties, which ended in December 2020. That finding gives rise to the Court’s jurisdiction to determine the financial dispute between the parties. In the applicants supplementary written submissions, counsel submitted that “proceedings for the purpose of s 117(2A)(e) are the proceedings during which the costs were incurred and not subsequent or other proceedings, including the appeal, commenced via a further application”, citing Austin J in Marvis & Marvis [2023] FedCFamC1A 34 at [21]:
Clearly enough, the provision [s 117(2A)(e)] invites consideration of whether a party has been wholly unsuccessful in the proceedings; not whether a party has been wholly successful in prosecuting his or her particular application.
Because the respondent was wholly unsuccessful in the threshold proceedings at first instance, notwithstanding the subsequent decision of the Full Court, counsel for the applicant submitted that this Court can and should make orders as outlined by the applicant.
The respondent asserts that he was not wholly unsuccessful in the appeal proceeding, for the following reasons:
(a)Order 1 states “the appeal is allowed”. Consequently, the respondents appeal was allowed;
(b)[137] of the judgment states that the appeal succeeded on an error of law ground;
(c)Their Honours found it to be an error of fact that the de facto relationship commenced in March 2017;
(d)The appellant (appellant in the substantive proceedings) was granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
(e)The respondent (applicant in the substantive proceedings) was granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).
(f)At the appeal, there were only three grounds of appeal pressed. Ground four was established and the appeal was allowed for lack of sufficient reasons, and the Appellate Court set aside Order 1 and substituted an order on different terms.
The respondent further submitted that per Marsden v Winch (Costs) [2008] FamCAFC 32 (“Marsden v Winch”) at [18], the Court stated that “an appeal can only be said to have succeeded within the meaning of the legislation if a new trial is ordered, or, alternatively, a different outcome is ordered following the re-exercise of the direction”, thus substituting an order on different terms, ordered a different outcome, and therefore the appeal succeeded.
I prefer and accept the submissions of the applicant as to my consideration of the s 117 (2A)(e) factors, which as referred to above, is but one of a number of relevant factors in the consideration of the costs application. In Marsden v Winch, the task of the Appellate Court was to consider costs applications arising from multitude appeals, and not whether one of the parties should bear the costs of the first instance proceeding, as is the case in this matter. The costs of the appeal between these parties were dealt with by the Appellate Court.
Furthermore, the fundamental issue in the primary proceedings was the existence or not of a de facto relationship, which if found in the affirmative, gives rise to the Court’s jurisdiction to hear a property application. The finding of the de facto relationship between the parties was not disturbed on appeal, nor the subject of re-exercise of discretion by the Appellate Court. The commencement date of that de facto relationship was the sole purpose of the re-exercise of discretion, which on the facts of this case, has no bearing on the Court’s power to exercise jurisdiction in the property proceedings.
At first instance, in his Response filed 2 September 2021, the respondent sought orders for a declaration pursuant to s 90 RD of the Act, “that a de facto relationship did not exist between the parties” and that “the application be otherwise dismissed”. It cannot possibly be concluded that the applicant was unsuccessful in the primary proceedings or the appeal, as to the existence of the de facto relationship. The relief sought by the respondent in his Response, was not granted at first instance, nor at appellate level.
CONCLUSION
Having weighed and balanced the relevant considerations, I am satisfied there are circumstances warranting departure from the usual principle that each party bear his or her own costs, and that the respondent should pay the applicant’s costs arising from the threshold proceedings. Because there were no specific submissions by the respondent about the applicant’s claim for the costs of the costs submissions, and because the applicant has been successful in her claim for costs of the threshold proceedings, I intend to also make orders for the respondent to pay the applicant’s costs of the cost submissions.
I now turn to the issue of quantum of both the costs of the threshold proceedings and the costs submissions.
Quantum
Rule 12.17 of the Rules provides:
Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
(2)If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis
(3) In making an order under subrule (1), the court may consider the following:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
As referred to above, the applicant seeks a special costs order, which in practical terms equates to the respondent paying counsel’s fees which were actually incurred by her, rather than counsel’s fees allowed in accordance with the relevant scale.
In doing so, she relies upon the observations of the Full Court of the Family Court (per Aldridge, Watts, and Austin JJ) in Sfakianakis & Sfakianakis [2019] FamCAFC 54 (“Sfakianakis”) at [10].
To justify an order for special costs, the applicant relies upon the respondent’s conduct in the proceedings, the significant disparity of wealth between them, the significant sum the respondent has paid for his own costs and by comparison, the modest nature of the costs claimed by her as special costs. She contends calculating her costs on scale would not adequately compensate her for the actual costs incurred in the proceedings, and that she was justified in engaging both counsel because of the length and complexity of the hearing which was primarily attributable to the evidence adduced by the respondent, which included his own trial affidavit and 17 affidavits from supporting witnesses.
The respondent contended in his written costs submissions, that if an order for costs is made, the applicant’s costs should be calculated on scale, and if no agreement is reached as to quantum, there be an assessment of the disputed costs.
He refutes the applicant’s entitlement to special costs, and contends this matter is distinguishable from the facts of Sfakianakis. In Sfakianakis, an order for special costs was made because of the egregious conduct of the appellant, which included a wilful disregard of known facts or clearly established law, and unduly prolonging proceedings by groundless contentions.
I agree with the submission of the respondent that his conduct relied upon by the applicant falls short of the egregious conduct identified in Sfakianakis and does not give rise to an order for special costs. The respondent was entitled to respond, and resist, the threshold hearing for a declaration of a de facto relationship, and whilst the threshold hearing was hard-fought and the Applications in a Proceeding along the way added to the costs incurred by the applicant, I am unable to characterise his conduct as described by the Full Court in Sfakianakis. I have taken into account the respondent’s conduct in the proceedings, as a relevant factor in determining whether or not the respondent should pay the applicant’s costs.
I intend to make an order that the costs be on a party/party basis, and to fix the costs as permitted by Rule 12.17. To do otherwise would potentially invite an endless costs dispute, which would add to the litigation burden they both currently face, which includes unresolved parenting and financial proceedings.
The schedule attached to the applicant’s costs submissions, Annexure A, sets out with itemised precision the costs of the applicant’s solicitor claimed for the threshold hearing, and the costs submissions. The solicitors’ costs for the threshold hearing are calculated at $52,866.50 and his costs for the costs submissions are calculated at $2,763.30. Counsel’s fees are also particularised and calculated on scale at $89,596.88, and the disbursements claimed are itemised and total $16,833.48. I note the respondent did not take issue with the disbursements claimed by the applicant.
Nowhere in the respondent’s written costs submissions does he specifically address the costs and disbursements claimed by the applicant, other than to say the costs should be assessed if the parties are unable to reach agreement about quantum. In Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6 at [11]-[12] the Full Court of the Family Court observed it is generally the preferred approach for a specific amount of costs to be ordered, rather than requiring an assessment of costs, because to do otherwise will inevitably involve the parties in conflict, delay and cost. In Warbrick & Warbrick (No 2) (2021) FLC 94-030 at 80,536 the Full Court said it was appropriate to fix costs because it “did not intend to permit the question of costs to become, in effect satellite litigation”.
The respondent had every opportunity to precisely rebut the quantum claimed by the applicant on scale but failed to do so, other than to cursorily refer in the supplementary submissions, to costs claimed by the applicant to oppose the first adjournment application. I will therefore make an order for the costs in accordance with the amount claimed and particularised by the applicant.
In the context of the costs incurred by the respondent, including Senior Counsel and Junior Counsel acting on his behalf during the threshold proceedings, his Costs Notice dated 4 March 2024 which quantifies the respondent’s costs at $830,355.29, the quantum claimed by the applicant in accordance with the relevant scale, seems relatively modest and reasonable.
There were no submissions by the respondent about the timeframe for payment, despite the applicant’s costs submissions referring to payment within 28 days. I will therefore make an order for the respondent to pay the applicant’s costs.
I will make orders accordingly.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 31 January 2025
0
7
2