Application for Costs of the Appeal by the Respondent
Sanders & Sanders (No 2) [2023] FedCFamC1A 1 (27 January 2023)
The court considered an application for costs of the appeal by the respondent following the dismissal of the appeal. The respondent sought costs on a scale and indemnity basis and the court granted an order for costs to be dealt with on the papers.
Facts:
This case is in regards to a respondent's application for costs of their appeal, following the dismissal of the appeal. The court requested submissions in relation to costs, with the respondent looking to adjourn until after the handing down of judgment.
Directions were given for the filing of evidence and written submissions by both parties, which the respondent fulfilled while the appellant did not. The evidential material annexed to the respondent's submissions was disregarded due to it not being in accordance with the directions given. Finally, the issue of costs was to be dealt with on the papers.
Given the appellant’s financial circumstances and the fact that they were wholly unsuccessful on the appeal, the respondent is seeking a costs order in their favour. At the hearing of the appeal, the respondent sought costs in the sum of $8,900.37 as per her costs notice of 22 August 2022. However, in her written submissions the respondent now seeks orders in the following terms:
- From 5 May 2022 to 11 July 2022, costs sought at scale (in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia Rules (Family Law) 2021) – $3,706.326; and
- From 12 July 2022 to 22 November 2022 (inclusive), costs sought on an indemnity basis – $23,505.73.
Issue:
The issue is the respondent's reliance upon the financial circumstances of the parties, the conduct of the parties in relation to the proceedings, that the appellant was wholly unsuccessful, and that a relevant offer had been made in writing to settle the proceedings.
Applicable law:
Family Law Act 1975 (Cth) s 117 - sets out the relevant considerations for determining what, if any, order for costs should be made.
Analysis:
The respondent in this case is relying on several considerations in support of their costs order. The Court noted the financial circumstances of the parties, with the appellant having implicitly conceded a substantial income of $795 per day (net) in their Schedule of Costs. The Court also noted the conduct of the parties in relation to the proceedings, with the appellant having pursued appeal grounds that were lacking in clarity and ultimately failed to identify any error on the part of the trial judge.
The respondent is relying on the fact that a written offer was made to settle the proceedings. However, due to the failure to provide evidence of such in accordance with the directions, the offer is unsupported and of no benefit to the respondent.
Conclusion:
The appellant should pay the respondent’s costs of the appeal fixed in the sum of $8,900.37 within 28 days of these orders in accordance with a direction provided to him in writing by the respondent’s legal representatives.
Case: Sanders & Sanders [2022] FedCFamC1F 213
Judgment of: AUSTIN, BENNETT & GILL JJ
Counsels: