FAMILY COURT OF AUSTRALIA
| MARKOSKA & MARKOSKA AND ANOR (COSTS) | [2011] FamCA 833 |
| FAMILY LAW – COSTS – Between parties – Where judgment delivered in relation to discrete issue – Where wife wholly unsuccessful in relation to that issue – Where first and second respondents seek costs – Where wife opposes costs orders – Whether first and second respondents entitled to costs pursuant to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) – Where wife ordered to pay the second respondent’s costs – Where first respondent’s costs reserved. |
| FAMILY LAW – COSTS – Where orders sought by third party solicitors firm for costs associated with complying with a subpoena – Where wife issued subpoena to the solicitors firm, which had previously acted for the husband –Where husband objected to the subpoena, claiming privilege – Where solicitors firm objected to the subpoena, claiming privilege on behalf of the husband – Where solicitors firm has not intervened in the proceedings – Where solicitors firm seeks costs against the husband pursuant to s 117(2) of the Act – Whether an order for costs can be made pursuant to s 117(2A) against the husband in favour of the solicitors firm – Whether there were proceedings (per s 4 of the Act) between the solicitors firm and the husband – Where there were no proceedings between the husband and the solicitors firm – Where the Court does not have jurisdiction under s 117(2) of the Act to make the costs sought by the solicitors firm, against the husband. |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where wife provided minimum amount of conduct money to the solicitors firm – Where solicitors firm seeks “costs” of compliance with the subpoena – Whether an order should be made pursuant to r 15.23(3) – Whether solicitors firm has incurred substantial loss or expense as a result of complying with the subpoena – Where expenses incurred by solicitors firm were not substantial – Whether costs can be awarded against wife in favour of the third party solicitors firm pursuant to s 117(2) of the Act – Where subpoena hearing constituted an “incidental proceeding” between the wife and the solicitors firm – Where no costs order made. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Legal Profession (Solicitors) Rule 2007 (Qld) |
| Ascot Investments v Harper (1981) 148 CLR 337 Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) & Fish and Another (2005) 191 FLR 294; [2005] FamCA 158 Fuelxpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284 |
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- AGLC
- Markoska & Markoska and Anor [2011] FamCA 833
- Case
- [2011] FamCA 833
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the third party solicitors' firm should be awarded costs against the wife pursuant to rule 15.23(3) of the *Family Law Rules 2004* or section 117(2) of the *Family Law Act 1975*, and the allocation of costs between the husband and wife.
Murphy J dismissed the application by the third party solicitors' firm, ordering that each party bear their own costs in relation to that application. The court also made orders regarding the costs of the husband and wife, reserving the husband's costs to the trial judge hearing the section 79 proceedings and ordering the wife to pay the costs of the second respondent from a specified date, with the quantum to be agreed or assessed before certain procedural milestones in the property settlement proceedings.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The applicant wife pay the costs of the Second Respondent of and incidental to these proceedings as and from 23 May 2011, including these proceedings as to costs in an amount agreed in writing between the parties or failing agreement to be assessed.
2.
The amount payable by the wife pursuant to paragraph (1) of these Orders, be agreed or assessed prior to, as the case may be:
(a) the Registrar’s directions hearing at which the proceedings pursuant to s 79 of the Act between the husband and wife will be allocated to the trial callover; or
(b) the making of any orders by consent pursuant to that section or signature of any financial agreement giving effect to any settlement of those s 79 proceedings.
3.
The First Respondent husband’s costs of and incidental to these proceedings, including these proceedings as to costs, be reserved to the trial judge hearing the s 79 proceedings between the husband and the wife.
AND IT IS FURTHER ORDERED THAT
4.
The application by the third party solicitors firm pursuant to rule 15.23(3) of the Family Law Rules 2004 and/or for costs pursuant to s 117(2) of the Family Law Act 1975 (Cth), each be dismissed.
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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