By Robert Glade-Wright -
Key decisions
- Parke & The Estate of the Late A Parke [2016] FamCAFC 248
- R Pty Ltd atf the Fletcher Trust & Jones and Anor [2016] FamCA 928
- Hsing & Song [2016] FamCA 986
- Fewster & Drake [2016] FamCAFC 214
Costs – discontinuance of appeal – conduct of parties during trial is relevant to appeal costs under s 117(2A)(g)
In Parke & The Estate of the Late A Parke [2016] FamCAFC 248 (24 November 2016) the husband appealed the setting aside of a financial agreement by Judge Howard who found that the husband acted dishonestly in his financial dealings (at [23]-[24]). The mother was granted expedition of the appeal. Two weeks after the husband’s death his personal representative discontinued the appeal. The wife applied for her costs of her expedition application, the appeal and her costs application on an indemnity basis in the sum of $119,500.
May & Ryan JJ said (at [18]) that the filing of a Notice of Discontinuance ‘does not automatically lead to a costs order’. The wife’s counsel argued (at [24]) that the husband’s ‘deplorable’ conduct, including the finding that he had forged the wife’s signature in relation to their superannuation funds, ‘deserved’ an indemnity costs order. The majority said (at [30], [36] and [52]): ‘No offers to settle … were made after the Notice of Appeal was filed. The question therefore is whether offers to negotiate in the trial proceedings can be considered in a costs application for the appeal. Additionally, should the husband’s conduct during the trial … and his failure to make any offer to settle, be considered … relevant …?’
We are of the opinion that … the criteria in s 117(2A)(b)-(f) … are matters which are limited to the appeal proceedings because in each case those sections refer to “the proceedings”. However, other matters … may be considered by reason of … s 117(2A)(g) which does not contain the limitation of “the proceedings”.
Although the circumstances relating to the trial might attract an order on an indemnity basis, it could not be justified in the conduct of the appeal. Taking into account the timing of … the Notice of Discontinuance we are of the view that costs should not be ordered on an indemnity basis.’
The wife was awarded party/party costs of the three proceedings sought. Murphy J agreed but fixed those costs at $51,000.
