Trebiano and Trebiano (No 2)

[2019] FamCAFC 72

FAMILY COURT OF AUSTRALIA

TREBIANO & TREBIANO (NO. 2) [2019] FamCAFC 72

FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly successful – Where the appeal succeeded on a point of law – Where the appeal was allowed and the matter was remitted for hearing – Where the circumstances justify a different order to the general principle that each party bears its own costs – Where the appellant has not provided the Court with a schedule of costs – Financial circumstances of the parties – Where the respondent is to pay the appellant’s costs of the appeal as agreed or in default of agreement as assessed – Where the cost order made by the Court precludes the appellant from receiving a Costs Certificate – Where it is not appropriate for the Court to grant costs certificates to the parties under s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth) ss 117(1), 117(2A), 117(2A)(a), 117(2A)(g)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9(1), 9(1)(a)

Trebiano & Trebiano [2019] FamCAFC 16

APPELLANT: Mr Trebiano

RESPONDENT: Ms Trebiano

FILE NUMBER: PAC 1251 of 2017

APPEAL NUMBER: EA 76 of 2018

DATE DELIVERED: 26 April 2019

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers

JUDGMENT OF: McClelland DCJ, Aldridge & Austin JJ

HEARING DATE: Heard by way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2018

LOWER COURT MNC: [2018] FamCA 344

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Clifford

SOLICITOR FOR THE APPELLANT: Brander Smith McKnight Lawyers

COUNSEL FOR THE RESPONDENT: Mr Givney

SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers

Orders

1. The respondent is to pay the appellant’s costs of the appeal, as agreed, or in default of agreement, as assessed.

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 Trebiano & Trebiano 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 76 of 2018
File Number: PAC 1251 of 2017

Mr Trebiano

Appellant

And

Ms Trebiano

Respondent

REASONS FOR JUDGMENT

1. On 13 February 2019 we allowed the appeal in this matter, set aside the orders made by the primary judge and remitted the matter for rehearing (Trebiano & Trebiano [2019] FamCAFC 16).

2. The appellant now seeks an order that the respondent pay his costs of the appeal in the sum of $61,608.05. He also seeks a certificate for the costs of the rehearing pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).

3. The respondent submits that no order for costs should be made and, in that event, as the appeal succeeded on a point of law, each party should be granted a certificate under s 6 and s 8 of the Costs Act for the costs of the appeal and the rehearing.

4. In proceedings under the Family Law Act 1975 (Cth) (“the Act”), each party is to bear his or her own costs unless the court is of the opinion that the circumstances justify a different order (s 117(1)). In considering what other order may be just, the court must take into account the matters set out in s 117(2A) of the Act.

5. The parties’ financial circumstances are to be taken into account (s 117(2A)(a) of the Act).

6. The primary judge found that the parties’ non-superannuation assets had a value of $1,785,984. The parties each had an interest valued at $1,426,500 in the Trebiano Superannuation Fund (“the Fund”) (a total of $2,853,000). The primary judge found that the respondent had contributed 90 per cent of the assets held in the Fund.

7. Clearly, the respondent has the capacity to easily meet the costs order that has been sought by the appellant. It is likely that the appellant will retain some significant assets, although the make-up of those assets is uncertain.

8. The appeal was wholly successful (s 117(2A)(g) of the Act). Although the error was one that was made by the primary judge, the respondent required the appellant to prosecute the appeal to judgment.

9. The parties raised no other matters for consideration.

10. Taking these matters into account, the appropriate order is that the respondent pay the appellant’s costs.

11. The appellant has not provided the Court with a schedule of costs. This is unfortunate because it denies us the ability to consider the basis on which the costs have been claimed (scale or some other basis), whether the costs are reasonable and, consequently, of the ability to fix the amount of the costs to be paid.  Accordingly, the costs will have to be assessed, if not, agreed.

12. The costs order that will be made precludes the appellant from receiving a certificate as to the costs of the appeal because s 9(1) of the Costs Act permits the grant of such a certificate to an appellant in family law proceedings, as defined by s 9(1)(a), only in the event that each party is to bear his or her own costs.

13. Sections 6 and 8 of the Costs Act are not so limited. However, given the assets that are available to each of the parties, we are not satisfied that it is appropriate for either party to receive the certificate that has been sought.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (McClelland DCJ, Aldridge & Austin JJ) delivered on 26 April 2019.

Associate:

Date: 26 April 2019