Roda & Ors & Roda & Anor (No.2) (Costs)

[2013] FamCAFC 65

FAMILY COURT OF AUSTRALIA

RODA AND ORS & RODA AND ANOR (NO.2) (COSTS) [2013] FamCAFC 65

FAMILY LAW – APPEAL ─ COSTS ─ Where each party sought a costs certificate with respect to the appeal ─  Where the appeal succeeded on an issue of principle ─ Where the Court was not of the opinion that any order for costs should be made inter partes ─ Where the Court was satisfied that it was appropriate to grant costs certificates to each party ─ Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the appeal

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANTS:

X, Executor of the estate of the late K Roda
Y Roda

S Roda

RESPONDENT: Ms Roda

CROSS-APPELLANT: Mr Roda

FILE NUMBER: SYC 2084 of 2007

APPEAL NUMBER: EA 30 of 2011

DATE DELIVERED: 3 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, Strickland and Ainslie-Wallace JJ

HEARING DATE: By written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 21 February 2011

LOWER COURT MNC: [2011] FamCA 77

REPRESENTATION

COUNSEL FOR THE APPELLANTS: Dr Hardingham QC with
Mr Allen

SOLICITOR FOR THE APPELLANTS: Wisewould Mahony
Lawyers

COUNSEL FOR THE RESPONDENT: Dr Birch SC with
Ms Bateman

SOLICITOR FOR THE RESPONDENT: East Coast Family
Lawyers

COUNSEL FOR THE CROSS-APPELLANT: Mr Gersbach

SOLICITOR FOR THE 

CROSS-APPELLANT:

Taperell Rutledge
Lawyers

Orders

1. There be no order for costs.

2. The Court grants to the Appellants and Cross-Appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellants and Cross-Appellant in respect of the costs incurred by the Appellants and Cross-Appellant in relation to the appeal.

3. The Court grants to the Respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roda and Ors & Roda and Anor (No.2) (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 30 of 2011

File Number: SYC 2084 of 2007

X, Executor of the estate of the late K Roda

Y Roda
S Roda

Appellants

And

Ms Roda

Respondent

And

Mr Roda

Cross-Appellant

REASONS FOR JUDGMENT

COSTS

1. When the Court delivered judgment in this appeal on 11 March 2013 liberty was reserved to the parties to apply in relation to two issues. The first of those issues was with respect to the declaration and consequential order (orders 4 and 5) which the Court then made. The second was with respect to the costs of the appeal.

2. Sensibly in our view, no party has sought to disturb orders 4 and 5 of the orders of 11 March 2013, either within the time provided by the Court’s orders of that date or otherwise. The stay of those orders (order 6) provided for by the Court’s orders of 11 March 2013 is accordingly now dissolved, and the orders may be implemented.

3. In relation to the costs of the appeal, it is clear, again in our view sensibly so, from the submissions on behalf of all parties, that each party seeks a costs certificate with respect to the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Although we have not been urged to do so, we record that we are not of the opinion that any order for costs should be made inter partes. We are satisfied that it is appropriate to grant costs certificates to each party. The appeal succeeded on an issue of principle. There will accordingly be an order made for the granting of costs certificates.

4. No party has sought to disturb the trial Judge’s reservation of costs of the proceedings at first instance to the judge finally determining the proceedings, again sensibly in our view. Those orders should and will remain in force and effect.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland and              Ainslie-Wallace JJ) delivered on 3 May 2013.

Associate:   

Date: 03.05.2013