Frederick and Frederick (No. 2)

[2019] FamCAFC 131

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK (NO. 2) [2019] FamCAFC 131

FAMILY LAW – APPEAL – COSTS – Where directions were made for the provision of written submissions dealing with the costs of the appeal – Where the appellant seeks an order that the respondent pay her costs in a fixed sum – Where the respondent submits that each party should bear their own costs because the appeal succeeded on a matter of law – Where the respondent invited the trial judge to make the error – Where the appellant was entirely successful – Where the disparity of the parties’ financial position supports an order in favour of the appellant – Respondent to pay the appellant’s costs in a fixed sum.

Family Law Act 1975 (Cth) ss 117, 117(2A)

Family Law Rules 2004 (Cth) Sch 3

Frederick & Frederick (2019) FLC 93-900; [2019] FamCAFC 87

APPELLANT: Ms Frederick

RESPONDENT: Mr Frederick

FILE NUMBER: WOC 24 of 2017

APPEAL NUMBER: EA 103 of 2018

DATE DELIVERED: 7 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: In chambers

JUDGMENT OF: Strickland, Aldridge & Austin JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 28 June 2018

LOWER COURT MNC: [2018] FCCA 1694

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Coleman SC with Ms Clarke

SOLICITOR FOR THE APPELLANT: J S Pinto & Co

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: H A Miedzinski Solicitors

Orders

1. The respondent pay the costs of the appellant fixed in the sum of $25,000.00.

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 Frederick & Frederick (No. 2) 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 103 of 2018
File Number: WOC 24 of 2017

Ms Frederick

Appellant

And

Mr Frederick

Respondent

REASONS FOR JUDGMENT

1. On 28 May 2019, we allowed the appeal in this matter and set aside a binding financial agreement between the parties (Frederick & Frederick (2019) FLC 93-900). Directions were made for the provision of written submissions dealing with the costs of the appeal. Those submissions have now been received.

2. The appellant seeks an order that the respondent pay her costs fixed in the sum of $25,000 plus Goods and Services Tax (“GST”). The Family Law Rules 2004 (Cth) (“the Rules”), in dealing with costs, make no provision for fees plus GST and we will not make an order in relation to it.

3. The respondent submits that each party should bear their own costs because the appeal succeeded on a matter of law. That may be so, but it was an error that the respondent invited the trial judge to make. Further, the respondent could have, but did not, concede that such an error was made.

4. Pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”), parties are to bear their own costs of the proceedings unless the Court is of the opinion that the circumstances justify a different costs order. In considering whether to make such a costs order, the Court must have regard to the matters set out in s 117(2A) of the Act.

5. In this matter, the appellant was entirely successful (s 117(2A)(g) of the Act). The disparity of the parties’ financial position (as set out in the principal reasons of 28 May 2019) clearly supports an order in favour of the appellant (s 117(2A)(a) of the Act). The property proceedings are yet to be determined and we cannot assume that any particular outcome will be reached.

6. Contrary to the submission of the respondent, it matters not that the appellant’s lawyers may have deferred payment of their fees until some future event, as the appellant remains obliged to pay them.

7. We are satisfied that the circumstances justify an order that the respondent pay the appellant’s costs of the appeal.

8. Both parties invited us to fix the question of the costs. We are somewhat hampered in doing so because we have not been provided with a schedule of costs or with the basis on which they are included (ie. scale or otherwise). The appellant’s written submissions describe the costs as being sought on an “ordinary” and not indemnity basis.

9. Costs are sought as follows:

Senior counsel	$12,000
Junior counsel	$6,000
Solicitor (including disbursements)	$7,000
$25,000

1. These do not appear to be unreasonable on their face.

2. Schedule 3 of the Rules provides that the maximum fee at scale for a hearing is $6,910.49 for senior counsel and $3,000.33 for junior counsel. If an allowance is also made for one day of preparation each, which seems somewhat conservative, the costs of counsel fall comfortably within the scale.

3. We are fortified in this view by the respondent’s costs being $18,982.02 (as identified in a letter of disclosure dated 1 March 2019). The respondent did not engage senior counsel.

4. The appellant also had the burden of preparing the appeal, including obtaining the transcripts, and preparation of the appeal books and the notice of appeal.

5. We are satisfied that $25,000 represents an appropriate figure and there will be an order made for the respondent to pay the appellant’s costs fixed in that sum.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 7 August 2019.

Associate:

Date: 7 August 2019