Roda & Ors & Roda & Anor (No.2) (Costs) - [2013] FamCAFC 65

FAMILY COURT OF AUSTRALIA

RODA AND ORS & RODA AND ANOR (NO.2) (COSTS)

[2013] FamCAFC 65

FAMILY LAW – APPEAL ─ COSTS ─ Where each party sought a costs certificate with respect to the appeal ─ Where the appeal succeeded on an issue of principle ─ Where the Court was not of the opinion that any order for costs should be made inter partes ─ Where the Court was satisfied that it was appropriate to grant costs certificates to each party ─ Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the appeal

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANTS:

X, Executor of the estate of the late K Roda
Y Roda

S Roda

RESPONDENT:

Ms Roda

CROSS-APPELLANT:

Mr Roda

FILE NUMBER:

SYC

2084

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

3 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Strickland and Ainslie-Wallace JJ

HEARING DATE:

By written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 February 2011

LOWER COURT MNC:

[2011] FamCA 77

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Dr Hardingham QC with
Mr Allen

SOLICITOR FOR THE APPELLANTS:

Wisewould Mahony
Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Birch SC with
Ms Bateman

SOLICITOR FOR THE RESPONDENT:

East Coast Family
Lawyers

COUNSEL FOR THE CROSS-APPELLANT:

Mr Gersbach

SOLICITOR FOR THE

CROSS-APPELLANT:

Taperell Rutledge
Lawyers

Orders

There be no order for costs.
The Court grants to the Appellants and Cross-Appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellants and Cross-Appellant in respect of the costs incurred by the Appellants and Cross-Appellant in relation to the appeal.
The Court grants to the Respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roda and Ors & Roda and Anor (No.2) (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 30 of 2011

File Number: SYC 2084 of 2007

X, Executor of the estate of the late K Roda

Y Roda
S Roda

Appellants

And

Ms Roda

Respondent

And

Mr Roda

Cross-Appellant

REASONS FOR JUDGMENT

COSTS

When the Court delivered judgment in this appeal on 11 March 2013 liberty was reserved to the parties to apply in relation to two issues. The first of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCAFC 65
Decision Date

CaseChat Overview and Summary

In the case of Roda & Ors & Roda & Anor (No.2) (Costs), the Family Court of Australia considered the issue of costs in an appeal related to a family law matter. The parties involved were X, Executor of the estate of the late K Roda, Y Roda, S Roda, Ms Roda, and Mr Roda. The primary concern of the appeal was the costs incurred during the proceedings, specifically whether a costs certificate should be granted to each party involved. This decision followed an earlier judgment where the Court had reserved the right to make orders concerning the costs of the appeal.

The legal issues the Court had to decide were whether to grant costs certificates to each party involved in the appeal, as per the Federal Proceedings (Costs) Act 1981 (Cth). The Court needed to determine whether the appeal had succeeded on an issue of principle and whether it was appropriate to grant costs certificates to all parties without making an order for costs inter partes. The Court also had to consider the trial judge's reservation of costs at the first instance, which was not contested by any party.

The Court reasoned that while it did not believe any order for costs should be made inter partes, it was appropriate to grant costs certificates to each party due to the appeal's success on an issue of principle. The Court granted costs certificates to the Appellants, Cross-Appellant, and the Respondent, allowing the Attorney-General to authorize payment for the costs incurred by each party in relation to the appeal. This decision was made in line with the Federal Proceedings (Costs) Act 1981 (Cth), and the stay on certain orders from the previous judgment was dissolved.

No party sought to disturb the trial judge’s reservation of costs at the first instance, and therefore those orders remained in force. The Court certified that the preceding paragraphs were a true copy of the reasons for judgment delivered on 3 May 2013. The Court's final orders included granting costs certificates to all parties and dissolving the stay on certain orders.

Orders