Z (A Solicitor) and Limousin (Costs)

FAMILY COURT OF AUSTRALIA

Z (A SOLICITOR) & LIMOUSIN (COSTS) [2010] FamCAFC 119

FAMILY LAW - COSTS – Costs of appeal – Where there are factors which make it inappropriate that s 117(1) of the Family Law Act 1975 apply – Where appeal not entirely without merit – Appropriate for the solicitor to pay 80 per cent of the husband’s costs.

Family Law Act 1975 (Cth) – s 117

APPELLANT: Mr Z

RESPONDENT: Mr Limousin

FILE NUMBER: MLF 10522 of 1996

APPEAL NUMBER: SA 42 of 2008

DATE DELIVERED: 25 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: By way of written submissions filed 16 April 2010, 29 April 2010 and 12 May 2010

JUDGMENT OF: May, Boland & O’Ryan JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 30 April 2008

LOWER COURT MNC: [2008] FamCA 315

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Obst Legal

COUNSEL FOR THE RESPONDENT: Mr St John SC

SOLICITOR FOR THE RESPONDENT: Berry Family Lawyers

Orders

1. The appellant pay 80 per cent of the respondent’s costs of and incidental to Appeal No SA 42 of 2008, such costs to include the written submissions on costs, on a party and party basis as agreed and failing agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Z (a Solicitor) & Limousin (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 42 of 2008
File Number: MLF 10522 of 1996

Mr Z

Appellant

And

Mr Limousin

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 29 March 2010 we delivered our reasons for judgment dismissing an appeal by Mr Z against costs orders made against him by Guest J on 30 April 2008.  The costs orders were made at the conclusion of lengthy defended property, spousal maintenance and child support proceedings between Mr Limousin (“the husband”) and Ms Limousin (“the wife”) (for whom Mr Z acted in the proceedings).  The husband resisted the appeal.

2. For convenience we will in these reasons, as we did in our substantive reasons, refer to Mr Z as “the solicitor”.

3. Our orders of 29 March 2010 made provision for the parties to file written submissions as to costs.  Pursuant to the orders the husband filed submissions on 16 April 2010, the solicitor filed a response to those submissions on 29 April 2010 and the husband filed submissions in reply on 12 May 2010.

4. The husband seeks that the solicitor pay his costs of the appeal on a party and party basis.  For his part the solicitor concedes he should be ordered to pay costs, but submits the costs should be limited to 50 per cent of the husband’s costs, including costs of the submissions as to costs, assessed on a party and party basis.

Relevant law

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs costs. Sections 117(1), (2) and (2A) provide as follows:

   (1)Subject to…