Moy & Pao

The appellants, former spouses involved in property settlement proceedings, appeal against an order dismissing their applications for costs following the adjournment of a trial. The respondent, a creditor, intervened in the proceedings seeking orders in relation to a judgment debt. The primary judge dismissed the appellants' applications for costs on an indemnity basis and under section 117(2) of the Family Law Act 1975 (Cth). The Full Court allowed the appeal and ordered that the respondent pay the appellants’ costs on an indemnity basis, including costs thrown away due to the adjournment, costs incurred in prosecuting their applications for costs, and the costs of the appeal.
The primary issues for the Full Court were whether the primary judge erred in concluding that there were unlikely to be costs thrown away and whether the primary judge’s decision to dismiss the costs applications was plainly unjust or exercised on wrong principles. The Full Court found that the primary judge erred in concluding that there were unlikely to be costs thrown away because the matter had been adjourned after three days of final hearing, without the trial commencing. The Full Court also found that the primary judge’s decision to dismiss the costs applications was plainly unjust or exercised on wrong principles. The Full Court concluded that the conduct of the respondent’s legal representatives warranted an order for indemnity costs.
The Full Court allowed the appeal and set aside the orders made by the primary judge on 13 July 2021. The Full Court ordered that the respondent pay the first appellant’s costs thrown away in the sum of $32,353.75, together with costs of the Application in a Case filed 11 June 2021 in the sum of $1,178.34. The Full Court also ordered that the respondent pay the second appellant’s costs thrown away in the sum of $29,012.50, together with costs of the Application in a Case filed 11 June 2021 in the sum of $1,178.34. The Full Court further ordered that the respondent pay the first appellant’s costs of the appeal in the sum of $9,021.21, and the second appellant’s costs of the appeal in the sum of $6,775.44.