Lawyers Restrained and Costs Awarded in Successful Appeal for Property Proceedings
Charisteas & Charisteas (No 2) [2023] FedCFamC1A 10 (15 February 2023)
The applicant sought an order that the first respondent pay his costs of the appeal, which was deemed appropriate to be paid at the conclusion of the property proceedings, but the costs of the preparation of the costs schedule and costs submissions were not included and an order for the payment of the costs of the hearing before the primary judge was not relevant to the appeal.
Facts:
On 7 October 2022, the Court allowed the appeal in this matter and made orders restraining certain lawyers from acting for the first respondent in the proceedings. An order for the payment of interim costs in favour of the first respondent was set aside and the matter was remitted for rehearing.
Pursuant to the directions for the filing of written submissions as to costs, the applicant seeks an order that the first respondent pay his costs of the appeal. Despite those directions, some time has now elapsed since the first respondent’s submissions were due, however none have been received. No application for an extension of time has been received.
Issue:
Whether or not the circumstances justify the making of a costs order other than that provided for by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is governed by a consideration of the matters raised in s 117(2A).
Applicable law:
Family Law Act 1975 (Cth) s 117 - provides that in proceedings under this Act, the court has the discretion to make an order for costs and security for costs if it deems that there are circumstances that warrant such an order. This can be done subject to specific provisions outlined in the Act and the relevant Rules of Court. The order for costs and security for costs can be made by the court at any point during the proceedings and should be fair and just.
Lenova & Lenova (Costs) [2011] FamCAFC 141 - provides that impecuniosity is not necessarily a bar to the making of a costs order.
Analysis:
The applicant was completely successful in the appeal, which is a powerful consideration in favour of the order sought by the applicant (s 117(2A)(g)). The first respondent appears, at present at least, to be impecunious, as accepted by the applicant. Taking these matters into account, the appropriate order is that the first respondent pay the applicant’s costs of the appeal, but that payment be made at the conclusion of the property proceedings.
The applicant has included the costs of the preparation of the costs schedule and costs submissions in the amount claimed. It is not appropriate to include them. The applicant also sought an order for the payment of the costs of the hearing before the primary judge. That issue does not arise from the appeal and if costs are to be sought an application will have to be made at first instance.
Conclusion:
The first respondent should pay the costs of the applicant fixed in the sum of $18,016 at the conclusion of the property proceedings.
Case: Charisteas & Charisteas (No 2) [2023] FedCFamC1A 10
Judgment of: ALSTERGREN CJ, MCCLELLAND DCJ & ALDRIDGE J
Counsels:
Counsel for the Applicant: Mr Robertson
Solicitor for the Applicant: DS Family Law
The First Respondent: Self-represented litigant
The Second to 13th Respondents: Did not participate
The First and Second named Third Parties: Did not participate