LFDB v SM (No 2) [2017] FCAFC 207

LFDB v SM (No 2) [2017] FCAFC 207

The appeal was not a de facto financial cause and the Family Law Act 1975 (Cth) default costs position was not an apposite analogy, so costs should generally follow the event. A general indemnity costs order was not justified because the maintained public policy contention was not hopeless and some narrowing of grounds reduced hearing time. However, the Further Evidence Application and Want of Jurisdiction Application unreasonably subjected the respondent to unnecessary costs, and the latter was inimical to the overarching purpose; indemnity costs were therefore ordered for those applications. Given the protracted nature of the dispute, a lump sum costs process under FCR 40.02(b), to be...

Jurisdiction
Australia
Judgment Date
12 December 2017
Procedural Posture
Application for Special Costs Order Following Dismissal of Appeal / Determined on the Papers After Dismissal of Appeal
Outcome
Special costs order made in part; appellants to pay the respondent's appeal costs on a party/party basis except for specified interlocutory applications on an indemnity basis, with the total costs to be awarded as a lump sum quantified by a Registrar.
Legal Topics
['special Costs Order' 'indemnity Costs' 'party/party Costs' 'lump Sum Costs' 'overarching Purpose' 'registration of New Zealand Judgments']
['costs' 'civil Procedure' 'trans Tasman Proceedings'] ['special Costs Order' 'indemnity Costs' 'party/party Costs' 'lump Sum Costs' 'overarching Purpose' 'registration of New Zealand Judgments']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Special Costs Order Following Dismissal of Appeal / Determined on the Papers After Dismissal of Appeal

Legal Issues

  1. 1 ['Whether no order as to costs should be made by analogy to s 117 of the Family Law Act 1975 (Cth).' 'Whether the respondent should receive costs of the appeal on an indemnity basis generally or for specified interlocutory applications.' 'Whether costs should be awarded as a lump sum to be quantified by a Registrar.']

Ratio Decidendi

The appeal was not a de facto financial cause and the Family Law Act 1975 (Cth) default costs position was not an apposite analogy, so costs should generally follow the event. A general indemnity costs order was not justified because the maintained public policy contention was not hopeless and some narrowing of grounds reduced hearing time. However, the Further Evidence Application and Want of Jurisdiction Application unreasonably subjected the respondent to unnecessary costs, and the latter was inimical to the overarching purpose; indemnity costs were therefore ordered for those applications. Given the protracted nature of the dispute, a lump sum costs process under FCR 40.02(b), to be...

Court Disposition

Special costs order made in part; appellants to pay the respondent's appeal costs on a party/party basis except for specified interlocutory applications on an indemnity basis, with the total costs to be awarded as a lump sum quantified by a Registrar.

Orders

  • ['Order 2 made by Jagot J on 23 June 2017 be varied so as to delete the words "as agreed or taxed".' "The appellants are to pay on a party/party basis the respondent's costs of the appeal save that the appellants are to pay on an indemnity basis the costs of the respondent of and incidental to: (a) that part of the...