Roydon & Roydon

The appeal in Roydon & Roydon was brought by the appellant against the primary judge’s costs order. The appellant, who was found to be wholly unsuccessful at each critical stage of the proceedings, sought to challenge the primary judge’s order that he pay the respondent’s costs on an indemnity basis from 2 May 2022. The appeal raised issues about the application of indemnity costs in family law proceedings, particularly when the outcome achieved by the respondent was not equal to or better than the appellant’s offer and the offer would not have resolved the entire proceedings. The court had to consider whether indemnity costs were warranted under these circumstances and whether the conduct of the litigation by the appellant warranted such an order.

The court noted that indemnity costs should not be awarded merely because a party achieves a better result than an earlier offer. It was also observed that an unreasonable refusal of an offer in family law proceedings is not necessarily an “imprudent” rejection of an offer for the purposes of an indemnity costs application. The court considered that lack of success on an issue or interim application could be taken into account when considering costs, but the misconduct of a party in incurring excessive costs was only relevant to the extent it caused the other party to incur greater costs in the proceedings. The court highlighted the importance of costs scales in the court rules in setting a reasonable rate for legal practitioners’ charges and emphasised that estimated costs calculated on the costs scale should be considered when making significant costs orders.

The court found that the primary judge had not adequately considered the various offers made during the proceedings and their relevance to the final outcome. The primary judge had also erred in concluding that an indemnity costs order was warranted, as the outcome achieved by the respondent was not equal to or better than the appellant’s offer. The court concluded that the appeal should be allowed and the matter remitted for rehearing.

The court ordered that the appeal NAA 297 of 2023 be allowed and the application in a proceeding filed on 31 October 2022 be remitted for rehearing. The form of the order is subject to the entry in the Court’s records, and this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.