Costs - Costs Thrown Away - Indemnity Costs

Costs

Family Law Act 1975 (Cth)

[A] Costs thrown away, including costs against party or party's lawyer

Framework

• Section 117A Act and Rule 19.10 (2004 Rules): "[44]  The principles relating to jurisdiction and power of Courts to make orders for costs directly and personally against lawyers are well settled. [45]  It is well established that a specific power to make such orders exists under s 117(2) of the Family Law Act 1975 (Cth). Cassidy & Murray (1995) FLC 92-633 was cited, correctly, in the submissions on behalf of the father, as authority for the principles relevant to the exercise of the jurisdiction under the section. The Full court (Fogarty, Kay and Hase JJ), referring with approval to the decision of the Master of the Rolls, Sir Thomas Bingham in Ridehalgh v Horsefield (1994) 3 All ER 848 at 855, said (at p 82,365): 1.Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party. 2.The court should not make such an order without giving the person to be affected by the order an opportunity to be heard. 3.The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct. 4.The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitors clients. 5.A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default of negligence, any of which are found by a court to be or a serious nature, maybe sufficient to justify an order. 6.The jurisdiction is compensatory. [46]  The Full court in that case also acknowledged specific provisions in the Family Law Rules at that time, similar to the current Federal Magistrates court Rules r 21.07 (set out at para 28 above). [47]  Of interest, the current Family Law Rules 2004 r 19.10 provides: (1)A person may apply for an order under subr (2) against a lawyer for costs thrown away during a case, for a reason including: (a)the lawyer’s failure to comply with these Rules or an order; (b)the lawyer’s failure to comply with a pre action procedure; (c)the lawyer’s improper or unreasonable conduct; and (d)undue delay or default by the lawyer. (2)The court may make an order, including an order that the lawyer: (a)not charge the client for work specified in the order; (b)repay money that the client has already paid towards those costs; (c)repay to the client any costs that the client has been ordered to pay to another party; (d)pay the costs of a party; or (e)repay another person’s costs found to be incurred or wasted. [48]  As to the relationship between the power in s 117 and specific provisions in the Rules of court, their Honours said in Cassidy & Murray (at p 82, 363–4): This Rule addresses a particular set of circumstances in which it is appropriate to make costs orders against parties' legal representatives. However, in no way should it be seen as circumscribing the general power to make orders for costs. The fact that Judges of this court, in exercising their rule-making powers under the Act, have chosen to highlight a particular instance in which such orders might be made does not curtail the ambit of the statutory provision, or the discretion which it creates. … Once the discretion provided by s 117(2) is acknowledged to be as broad as we have indicated, the existence of O 38 r 39 is seen as simply an example of its exercise contemplated by the Judges of this court, and enacted into Rule form for sound case-management reasons. The Rule does not confine the operation of the section — the power to make costs orders against solicitors exists in circumstances which do not fall within the Rule. [49]  The Federal Magistrate’s decision to order costs was in the exercise of a discretion conferred by the Act, informed by the Rules. To the extent that in paras 57 and 62 of the reasons of 3 December 2012 his Honour may have given the impression that the source of power was the Rules or that the provisions of s 117 were irrelevant, that would have been an error. However, his Honour did set out the relevant considerations in his reasons. [50]  There is no doubt that in addition to the general constraints in appealing from discretionary judgments, it is all the more difficult to successfully appeal from discretionary judgments for costs (see the Full court’s discussion in Hitch & Hitch (2012) 47 Fam LR 603 at paras 57–58, 117–118).": G (A Solicitor) & Monaghan [2013] FamCAFC 63.

• "11. The cost application is made pursuant to s 114UB of the Family Law Act 1975 (Cth) (“the Act”). Section 114UB(1) provides that ordinarily, each party to the proceedings bears his or her own costs. Subsection 114UB(2) provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3), s 114UC and s 114UD and the applicable Rules of Court, make any order for costs that the court considers just. Subsection 114UB(3) sets out the factors the court must have regard to in considering what cost order, if any, to make. The discretion to award costs is a "broad" one, and the various enumerated factors are not to be read in any restrictive way (Collins and Collins [1985] FamCA 15; (1985) FLC 91-603). Any one of the factors may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor [2005] FamCA 158; (2005) 33 Fam LR 123). Nevertheless, the matters enumerated "must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs" (I and I (No 2) [1995] FamCA 80; (1995) FLC 92-625 at 82,277). ... 17. Section 114UB(5)(a) of the Act provides that a court may order that a party is entitled to costs of a specific amount. The appellant appropriately conceded that if the Court determined to make an order for costs, then it was desirable to fix costs, rather than put the parties to the further time and expense of engaging in a taxation of costs. Having closely reviewed the Schedule, we consider that the amount of $12,000 is just.": Tuff & Cloutier [2025] FedCFamC1A 211.

Effect of consent order and discontinuance - moot application

• Consent order rendering appeal moot, ought to have been discontinued: "[24]  The only relevance of the consent order being made on 5 April 2018, was that from that date the appeal in effect became moot, and needed to be discontinued, which was done on 16 April 2018. [25]  Plainly there are circumstances here that justify an order for costs, but only between 2 January 2018 and 5 April 2018.": Stern & Colli [2018] FamCAFC 183.

• consent dismissal where application doomed to fail: "[52]  In summary, the Federal Magistrate was asked, by consent, to dismiss all of the husband's applications before the court it being acknowledged by the husband's counsel that those applications as framed and the affidavits filed in support were doomed to failure if the matter proceeded. The wife had incurred costs including as noted by her Honour, the costs of five appearances in the Family Court. Those proceedings were dismissed, and as her Honour noted, further proceedings may not have been instituted for many months. The wife was entitled to all her costs thrown away in defending incompetent proceedings, and is now entitled to the fruits of the judgment. It cannot be assumed another judicial officer would be prepared to (or perhaps competent to) make costs orders in addition to orders the husband now concedes are appropriate. It is of significance that the husband's counsel conceded costs should include the costs incurred in the Family Court before transfer (Transcript 13 September 2007, p 64).": Lewberger & Lewberger [2008] FamCAFC 117.

• Costs thrown away by reason of discontinuance: Khoury & Khoury [2023] FedCFamC2F 1087.

Costs thrown away in the appearance - Adjournments

• Costs thrown away in the appearance a consequence of party seeking an adjournment: "[12]  I am satisfied that the circumstances of the case justify the making of an order for costs that Ms Bryson pay the Applicant’s costs. The question is of what and how. It seems to me that the circumstances justify the making of an order that Ms Bryson pay the Applicant’s costs of and incidental to the appearance on 6 September 2017. [13]  I have arrived at that decision because I consider that the costs thrown away in that appearance were as a consequence completely of Ms Bryson’s determination to seek an adjournment of the matter — to which I acceded. [14]  I have taken into account, of course, the submissions made by, or on behalf of, each of the parties in arriving at that conclusion. I have also taken into account the terms of the order I have made by consent this morning. [15]  For those very short reasons, which I consider sufficient in the circumstances of the discretionary decision as to costs, an order will issue in those terms.": Pember & Bryson [2017] FamCA 831.

• "[73]  Finally, as the mother sought the adjournment, both the father and the Independent Children’s Lawyer sought costs. In the case of the latter, she sought the costs be reserved. As there was no opposition to that, I will make that order. [74]  The father sought costs thrown away of $3,850 being her brief fee. The scale fee for counsel (item 205) is a maximum of $2,883.83. That does not include preparation which would bring about a further maximum of $395.86 per hour. I accept that $3,850 would cover both attendance and reading so the question is whether that will have to be done again. In view of the inevitable delay, I consider it reasonable to conclude that it will all have to be done again and the father will be charged for that by his practitioners. [75]  Orders for costs are not intended as any form of punitive action for the way a litigant conducts a case but rather, to compensate a person who has had little or no choice other than to be involved. Here, the father had been the recipient of the mother’s application and, as she did not attend the directions hearing, was appointed applicant. The mother then joined in the proceedings seeking orders that would radically alter the status quo. Thus, the father had little choice but to continue to litigate. The law in relation to his application was therefore not novel. [76]  The law relating to orders for costs is governed by s 117 of the Act. There must be some justifying circumstance for the court to depart from the statutory principle that each party bear their own costs. [77]  The mother submitted only that her financial circumstances were such that she could not afford to pay costs and indeed, she asserted that she earns about $30,000 per year against the father’s much stronger financial position. Impecuniosity alone is not solely a basis not to order costs if there are justifying circumstances because otherwise, unmeritorious proceedings could be commenced and continued with impunity. ... [81]  The major issue in s 117(2A) however relates to the mother’s conduct as a litigant. She should have prepared properly and did not and when faced with the problem as identified, sought an adjournment to enable her problems to be addressed. That is not what normally happens in litigation in this court. That point is particularly poignant here because in the orders of 31 July, I made clear what the outline of case document was to contain. The solicitor for the wife did not follow that direction.": Sorrel & Cutten [2017] FamCA 838.

• "[32]  For reasons not necessary to go over again now, the trial did not commence on those May 2018 dates and was adjourned to be heard over nine days at the beginning of this year. As a consequence of that adjournment, on the application of the husband and his sister, I made orders that the wife pay the costs of the husband and his sister of and incidental to an unsuccessful application that the wife had made and also their costs thrown away by the adjournment, to be as agreed or assessed on a party and party basis. In the course of these costs applications, the Court was informed that the expectation is that those costs will total in the order of $100,000 to $140,000. Relevantly, I ordered them not to be paid by the wife before the conclusion of the proceedings. The wife simply had no capacity to do so prior to the determination of her property adjustment and spousal maintenance applications, at the very earliest.": Conrad v Conrad [2019] FamCA 849.

• Adjournment for legal aid - no costs ordered: "[30]  The father seeks an order for the costs thrown away by the adjournment. [31]  That application is determined according to the matters set out in s 117(2A) of the Family Law Act 1975 (Cth). [32]  The mother is impecunious. There is no evidence of the father’s financial position but I infer, since he is represented by a solicitor and counsel, because he was able to fly to the USA and retrieve X and because the mother in her affidavit deposes to his international travel in pursuit of his business with offices in Sydney, the UK and the USA, that his financial position is significantly superior to that of the mother. [33]  Further the mother’s right to an adjournment arises, not from any action on her part, but by operation of s 57 of the Legal Aid Commission Act and is not affected by the fact that her material was filed late. Even had the material been filed in accordance with the directions, the matter must be adjourned. [34]  The application for costs will be dismissed.": McDevitt & Duchamps [2023] FedCFamC1F 1098.

• SEE ALSO [N] Court Process in Parenting. 

Costs wasted - hearing came to naught

• "[83]  Finally, I wish to add that I will entertain any application made by the husband for his costs thrown away by the fact that the hearing on the 22 June 2020 came to naught. As counsel for the husband submitted, he and his instructing solicitor and the husband negotiated with the wife’s legal representatives in good faith on that day understanding the wife’s legal representatives to have ostensible authority to negotiate and enter into the agreement that was reached between them that day. That the wife’s solicitor did not have fully informed instructions to do so is not the husband’s responsibility and, prima facie, he should not have to bear costs wasted that day. Responsibility for that, however ultimately determined and apportioned between the wife and her then solicitors, would in the first instance likely have to be borne by the wife. I will order that in the absence of any agreement between the parties as to the payment by the wife of the husband’s costs of 22 June 2020 that any application by the husband for costs be carefully particularised and filed and served, along with a brief supporting affidavit in which the costs claimed are itemised, and along with any written submissions in support, on or before Wednesday, 30 September 2020 and for any documents and written submission in response on behalf of the wife be filed and served on or before Friday, 9 October 2020.": Farrow & Farrow [2020] FamCA 794.

• ?No appointment of litigation guardian - adjournment - costs not awarded: "[28]  On 3 October 2006, A appeared, as did counsel for the wife. However, there had been no appointment of a litigation guardian for the husband. Counsel for the wife agreed to an adjournment, but requested costs thrown away. Coker FM said: FEDERAL MAGISTRATE: All right. Ms [Brandon], Mr Bradshaw has indicated that he would, out of an abundance of fairness and it is very appropriate of him to do so I might add, to agree to an adjournment. But the fact is, this matter was listed for trial. Ma'am, I can't give you legal advice but one thing off the cuff I'll tell you is that you have no lawful right to settle a matrimonial claim without either, I would think at the very least a power of attorney — [29]  I do not consider these remarks amount to findings of culpability, for the purposes of considering a costs order or even a reservation of costs. [30]  On the last occasion of adjournment for which there is transcript, a solicitor appeared for the husband and counsel again appeared for the wife. Coker FM referred to the listing of the matter before him as an undefended hearing. The solicitor submitted that a hearing on that basis was no longer appropriate. A had still not been appointed as the case guardian but the solicitor advised that documents had been sent to the court the preceding week. ... [34]  It may be arguable that these observations by Coker FM amount to findings upon which Coates FM could have relied, but this was not raised before me. However, my inclination is not to regard the remarks as findings relevant to costs. Coker FM did not weigh the arguments for and against and express a conclusion. While he remarked on A's lack of diligence, this was a matter in which the husband was incapacitated and no litigation guardian appointed at the time and that seems a likely factor for consideration, had Coker FM been assessing responsibility for costs thrown away. [35]  It is well recognised that an appeal court should be reluctant to interfere with an exercise of discretion with regard to costs. Again, the appeal ground does not challenge the sufficiency of reasons of the Federal Magistrate. [36]  I am not satisfied that appealable error is made out.": Brandon & Brandon [2009] FamCAFC 213.

Failing to resolve matter early and without ned for hearing, put to expense of appearing

• "[1]  I have made Orders by consent in this matter on the interim disposition of a London property, and matters incidental there to. The wife seeks her costs of today thrown away fixed in the sum of approximately $2815. When calculated in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) it would appear to be more in the sum of $2400, being counsel’s fees of $1164, and four hours of solicitors’ time to attend to correspondence in the past few days. [2]  The primary position under the Family Law Act 1975 (Cth) (“the Act”) is that each party bears their own costs of proceedings, unless there are circumstances which justify an order that one party pay the costs of another. The Act is silent on the matters to be taken into account, but obviously regard cannot be had to extraneous matters. Matters must be relevant to the proceedings, and it is not unusual that relevant matter may resonate with the matters set out in s 117(2A) of the Act. [3]  In this case, the wife says that the principle justification for an order for costs is that she was put to the expense of retaining counsel to appear today with an instructing solicitor to see the matter resolve early and without the need for a hearing. It was made clear on the last occasion that this was to be a day for hearing only if a contested determination by the Court was necessary, and that I would take any application for an adjournment or for permission for the parties not to appear as late as necessary. That is what I remember occurred on the earlier date, and I’m satisfied that there are circumstances which justify an order being made. [4]  The next step is to consider, having regard to the matters in s 117(2A) of the Act, whether any order for costs should be made, and if so, the terms of the order. It is not necessary that any application for costs qualify under each one of the seven criteria to which the Court is required to have regard under s 117(2A). I need have regard only to the relevant criteria, and there may be, amongst those, one that stands out more than most in being determinative of an order for costs. [5]  The financial circumstances of the parties is such that I am comfortably satisfied that neither party can afford the crippling costs of these proceedings.1 It is not lost on me, that the costs of proceedings may be used as leverage by one party against another which is also to be discouraged. [6]  The husband nor the wife are in receipt of legal aid.2 There is an Independent Children’s Lawyer who would be in receipt of legal aid, but her costs are not relevant for today. [7]  I have regard to the conduct of the parties to the proceedings in relation to provision of documents, inspections, directions, answering questions, and the like.3 In broad terms, the wife’s case could possibly sound under this particular provision, but what essentially it is, is that she has incurred costs today which, had the husband agreed to the orders earlier this week, she would have not incurred. [8]  The proceedings have not been necessitated by the failure of a party to comply with previous orders of the Court.4 [9]  Section 117(2A)(e) is: “Whether any party to the proceedings has been wholly unsuccessful in the proceedings.” The husband has not been wholly unsuccessful today, but he has walked away with an Order which is, essentially, the Order that the wife sought on the last occasion with some minor finessing. The finessing aspect of it being apparent from the words, “For the avoidance of doubt” and the other Order that I have made for the husband’s benefit. It was common ground that those terms were implicit in other orders and added little. [10]  I am not aware of any offer in writing about today, although both counsel were in Court and both parties were in Court.5 When I said on the last occasion that I was concerned about costs being incurred, I was concerned about the imposition of yet another day’s fees on the parties, and that there may well be costs implications when the matter was finally resolved. ... [13]  In the event, today the matter was listed, and the parties, in fairly quick time, produced a minute of order by consent. I am satisfied that the minute replicates more or less what the wife wanted on the last occasion. It does not include a power for the Registrar to sign on behalf of the husband, but I am satisfied that that has not been a matter of controversy between the parties in any event. [14]  It does seem to me that the wife has been put today to the unnecessary expense of retaining counsel and solicitor to appear on her behalf. I recognise that the husband has chosen to go on affidavit, which I accept would have incurred additional legal expenses for him, and he is also represented today by counsel and solicitor but those are choices for him. [15]  The wife’s application is in two parts. One is for negotiations or correspondence for four hours from, necessarily, on 15, 16, or 17 October 2019. I am not satisfied that those costs were necessarily costs thrown away, and I do not propose to make an order for those. They stand in lieu of the wife having to make an application in formal terms (as her application was permitted to be oral). [16]  I conclude that the wife should recover the reasonable cost of counsel for today and instructing solicitor to attend court and I will make orders in those terms. Counsel for the wife does not oppose a stay until final settlement so I will make orders in those terms.": Hearl & Hearl [2019] FamCA 776.

Failing to appear on Court date / non-participation

• "[114]  Notwithstanding that the father had legal representation I find that it was incumbent on him to ensure that he knew each and every court date, to comply with orders of the court in relation to the filing of material and attendance at hearings and, if represented, to properly instruct his legal representation. [115]  I accept that the hearing on 27 November 2015 was only necessary as a result of the father’s failure in relation to the matters to which I have just referred, such that the hearing on 13 October 2015 was effectively “wasted”. [116]  The affidavit prepared by the mother for the hearing on 13 October 2015 was of course the affidavit upon which she relied for the hearing on 27 November 2015. [117]  The costs incurred by the mother for the hearing on 27 November 2015 according to the affidavit of her solicitor filed 15 September 2017 and pursuant to the costs agreement with her solicitor were $1,054.05 inclusive of GST. [118]  I find that there is no basis on which to make an order for costs with respect to the hearing of 27 November 2015. This was a hearing which related to parenting issues and property settlement, which by then had been included in the proceedings by way of an amended application on the part of the mother. This was a hearing that was necessary for the purposes of the substantive applications before the court. [119]  I am satisfied however that there are circumstances that would justify the court making an order for costs “thrown away” with respect to the hearing on 13 October 2015. That hearing was not complex, did not require the filing of any further application and the affidavit filed by the mother on 6 October 2015 for the purposes of that hearing was the affidavit ordered on 27 March 2015. [120]  In those circumstances I find that the appropriate order for costs should simply relate to the daily hearing fee of the attendance on 13 October 2015, which in any event was a relatively brief hearing. I am however satisfied that it is appropriate to add to that amount the advocacy loading of fifty percent in that counsel did attend for the mother on that day anticipating argument in relation to interim children’s issues. [121]  For the reasons previously given herein I am satisfied that the father has the capacity to comply with an order for costs, that the mother is of limited financial means and has the primary responsibility of the parties child [X] and that it is appropriate for a costs order to be made in the sum of $441.00.": Freeman & Guthrie [2018] FCCA 1566.

• "[27]  The mother, through her indications both to the father’s attorneys and the court, through the correspondence and submissions of her former attorneys, would appear somewhat resistant to that participation. However, her participation is required and if need be, will be secured through the issue of a warrant for her arrest to bring her before the court other than voluntarily if that is what is required. That is not to be heavy handed. I am conscious that it is a serious step to invoke the court’s coercive powers in that fashion. However, the child’s best interests require a conclusion to these proceedings, not just to enable her interests to be fully and properly addressed, but to ensure that the proceedings are brought to an appropriate conclusion and as soon as practicable. [28]  In those circumstances the adjournment will occur. That gives rise, however, to an issue with respect to costs. [29]  The father seeks his costs thrown away by the mother’s non-attendance. That term is, in this context, used advisedly. [30]  The Independent Children’s Lawyer also seeks costs on an interim or interlocutory basis, relating both to an initial contribution for costs as sought from the parties and each of them, as well as the costs thrown away with respect to today’s appearance. [31]  There is a cost to these parties and in particular, the father and perhaps even more importantly, this child and her best interests which cannot be compensated by costs. ... [87]  I am satisfied on a party-party basis that the quantum of costs as sought by the father’s attorneys is appropriate and justifiable. It is reflective of that which would be reasonable. That it may reflect that in fact incurred but that is purely coincidental as regards the quantum assessed by me. [88]  I am satisfied the order can and should be made on a party-party basis, and thus avoiding the need for further consideration of the matters set out in Prantage & Prantage [2013] and the authorities referred to therein, and with lesser controversy. The costs sought are modest and within the range of that which might be expected across the profession. [89]  In those circumstances, I am satisfied also that the mother should not only pay such costs as are incurred by the father, but should pay them prior to — although not expressed as a condition precedent for — her ongoing participation in the proceedings and appearance on the adjourned return date, which will be a little over five weeks hence. [90]  As the mother received substantial funds by way of property adjustment only 3 months ago she is or should be in a position to meet such costs, whether from funds held by her or through borrowings secured thereupon. [91]  In relation to the Independent Children’s Lawyer, I am satisfied that an order for costs thrown away with respect to today is appropriate, together with an interlocutory order for costs with respect to that which has been sought by the Independent Children’s Lawyer with respect to contribution to costs to date. These parties are clearly in a position to be able to fund the costs of the Independent Children’s Lawyer and the appointment arises primarily if not solely as a consequence of the allegations raised by the mother by which she now does not prosecute by preparation or appearance. [92]  But for the issues that were raised by the mother — and I make clear that they were raised at first instance through a child dispute conference memorandum, rather than by material filed by her, as at the first return date of the proceedings the Respondent had not filed material, notwithstanding that a period well in excess of 14 days following the date of service had passed. The mother has raised serious and significant allegations, and those allegations were, by and large, the basis upon which both the child dispute conference was ordered and appointment of an Independent Children’s Lawyer was considered necessary. In those circumstances, it is entirely mischievous of the Respondent to raise matters of such magnitude and to then fail to take any active step to present evidence, or to prosecute a position based upon those allegations. [93]  I am satisfied that an interlocutory order, as s 117(3) of the Act makes clear, the court can entertain is also appropriate in addition to the Independent Children’s Lawyer’s costs of today. Further, with respect to that issue, I note that the father has attended to payment of the contribution sought of the parties, and is in a position to meet further contribution as has been sought of him. Those issues, again, weigh heavily as regards both due process being afforded to the parties, and each of them, it not being something afforded solely to the Respondent, but in equal measure to the Applicant and, as regards justice and equity, would require that such an order be made.": Donnan & Platt [2014] FCCA 2638.

Lawyer failed to attend

• "[8]  This matter was listed at 9:00 am for not more than an hour. The timing is precise because counsel appearing before me are aware that they will be safely away in time for an appearance in another Court in this building comfortably before 10:00 a.m. [9]  The matter will need to be adjourned and today has been wasted. [10]  Mr Nicholson makes an application for costs thrown away this day. He does not seek that the wife pay his client’s costs. He seeks a costs order against Mr O’Brien, whose failure to attend or to secure counsel to appear has meant that the matter could not proceed. It seems to me that the application can properly be made against the legal practitioner, who is Mr O’Brien. Mr O’Brien has no notice of the application against him but I will reserve to him liberty to seek to set aside any costs order which is made today in his absence notwithstanding that I am struggling to see why the husband should suffer financially for costs thrown away by virtue of Mr O’Brien’s failure or neglect to arrange representation for the wife. [11]  The usual position is that each party bears his or her own costs of proceedings (Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”)). However, in this case I am satisfied that leaving the wife without representation and consequently wasting the listing is a circumstance which justifies an order for costs within the meaning of section 117(2) of the Act. In considering what (if any) costs order should be made, I have regard to the matters is section 117(2A) of the Act. In particular, I am satisfied that neither party can afford, nor should be required, to incur and be responsible for costs which are wasted. Overwhelmingly, though, it is the conduct of Mr O’Brien in leaving the wife unrepresented and frustrating the hearing today which I take into account pursuant to section 117(2A)(g) of the Act. I am satisfied that a costs order should be made. [12]  I am not satisfied that the costs order should be in the sum sought.": Cai & Xun [2020] FamCA 261.

Failing to inform OP that they had no intent to appear that day

• "[17]  Whilst the Applicant and his solicitor were both in attendance in Brisbane that day, the Respondent did not appear. [18]  The evidence10 is that, at about 7.00 am that morning (4 April 2016), the Respondent emailed the Applicant’s solicitor to inform him (and the Independent Children’s Lawyer) that she was not able to attend Court for the hearing that day. ... [23]  In any event, the Applicant’s evidence is that, if the Respondent had advised him on 1 April 2016 that she had been admitted to hospital, he and his solicitor would not have travelled to Brisbane on 4 April 2016 for the hearing of the Application but would have sought to appear by telephone and, if this had been successful, $2,050.63 of the $2,964.63 spent in association with the appearance on 4 April 2016 would have been saved.14 It is in respect of these costs thrown away that an order against the Respondent is sought. [24]  The Applicant advances and I accept as more likely than not, that the Respondent knew by late in the day on 24 March 2016 that he and his solicitor would both attend the 4 April 2016 hearing in person.15 [25]  I accept that, in circumstances where the Respondent notified the Court on Friday, 1 April 2016 of her intention not to attend at Court on 4 April 2016, she could easily have notified the Applicant of this. I accept that she did not do so and that her conduct in this regard impacted upon the Applicant’s costs. I accept that, if the Applicant had known on 1 April 2016 of the Respondent’s intended non-appearance on 4 April 2016, he would not have incurred the costs associated with the appearance on 4 April 2016 that he did. [26]  Having regard to the above, I am persuaded that the circumstances justify the making of an order that the Respondent pay the Applicant’s costs thrown away and that it is just that she is ordered to pay the amount of $1,701.04 (being the combination of the legal costs thrown away in the amount of $1,573.00 and the costs associated with the Applicant’s solicitor’s personal attendance in Brisbane that day), being my quantification of his costs thrown away as a result of her failure to inform him until the morning of 4 April 2016 that she did not intend to appear that day. [27]  In arriving at this conclusion, I again emphasise that such Order is not made to punish the Respondent for her conduct but, rather, taking into account the consequences of that deliberate conduct on the costs incurred by the Applicant. As a result of her conduct, he incurred costs which would not otherwise have been incurred.": Vale & Vale and Anor (No 3) [2018] FamCA 21.

Remaining on the record despite no instructions and no money in trust

• Costs order against solicitor on record: G (A Solicitor) & Monaghan [2013] FamCAFC 63.

Abandonment of ground of claim

• "[65]  Stripped to its core, the husband argued that the wife should pay his costs thrown away by reason of her fluctuating position in relation to the constructive trust argument and her eventual abandonment of it. As a secondary issue, the husband sought a costs order against the wife’s legal representatives. He did not say whether he cast his case for such a cost order in addition to an order for costs against the wife or as an order in case his recovery of costs thrown away from the wife failed for some reason. Self-evidently, he could not recover costs twice, that is to say, from the wife and then also the same costs from her former legal advisors. ... [68]  Neither of those events occurred. Instead, the wife eventually conceded that she was unlikely to meet the expert evidentiary requirements necessary to advance her constructive trust claim so she did not press it. [69]  At that stage and not earlier the husband may have become entitled to his costs thrown away of and incidental to her abandoned constructive trusts claim. Of course, a costs order in favour of the husband, even upon the wife abandoning her constructive trust claim, was by no means a forgone conclusion. An order in favour of the husband had to be made in accordance with s 117(2) of the Family Law Act before the wife was burdened to meet any costs of the husband’s. He needed to invoke one (but only one)19 of the provisions of s 117(2A). Even if a costs order in his favour was to be made, absent exceptional circumstance those costs became payable on a party/party basis. I see nothing exceptional so as to attract the imposition of an indemnity costs order by reason of the wife’s abandonment of her constructive trust claim. The main authorities on indemnity costs in this court20 speak of an order for indemnity costs being made if “exceptional circumstances” exist for the making of such an order. The authorities do not offer guidance on the constituent elements of exceptional circumstances. However, other authorities21 have held that exceptional circumstances are those out of the ordinary. I am unable to see how the everyday occurrence of not pressing a particular cause of action or claim for relief, as earlier asserted, represents a state of affairs that is out of the ordinary. To the contrary. That occurrence is an everyday event in all common law courts and in this court as well as before arbitrators. I decline to ascribe it to a status it does not deserve by calling it an exceptional circumstance. It is not. Indemnity costs are not payable as costs thrown away. [70]  As to whether the events described above enliven a consideration of matters prescribed by s 117(2) and s 117(2A) of the Family Law Act, in my view they do, the relevant subsection being s 117(2A)(c), which invokes an examination of the conduct of the party against whom a costs order is sought. Of course, only one of the relevant subsections of s 117(2A) needs to be enlivened for an order to be made.22 Here, it seemed to me that the wife’s purported advancement of her constructive trust argument then the later abandonment of it represented conduct warranting the imposition of a costs order. After all, by that approach she caused the loss of some time in the conduct of the arbitration by at least two leave applications. She also caused the husband to incur legal costs while the adequacy of her evidence was considered. She caused the husband to incur costs in his counsel preparing for and arguing before the arbitrator about the adequacy of the wife’s evidence, especially in respect of translated documents. I doubt that those costs thrown away will be substantial but they are lost and must be met by the wife, on a party/party basis. [71]  As is apparent from the foregoing I take the view that the husband is entitled to his costs thrown away. Whether he has in fact sustained any costs thrown away and if so how much, must be determined by a registrar. I direct that the determination of the husband’s entitlement to any costs thrown away must be— (a)determined by a registrar of this court, (b)determined by not later than 29 July 2022, and (c)brought to me as judge-in-charge of the National Arbitration List by 30 July 2020 or such later date as only I extend (the registrar will have no power to do otherwise than determine those costs by that date unless I otherwise order). [72]  In his submissions on behalf of Mr Taubman, Mr Batey of counsel made detailed submissions concerning a wasted costs order. Whether the correct terminology is “cost thrown away” or “wasted costs” may need to await another day. The expression “wasted costs” order is traceable to English authorities which I surveyed in Goodridge and Beadle (No 2) .23 [73]  Once the registrar determines the amount of costs thrown away and thereby quantifies the sum payable by the wife I will hear this proceeding again so as to determine what further steps must be ordered for the payment of those costs. To that end I adjourn further hearing of his proceeding to 5 August 2022 at 10:00am.": Zheng & Cheung [2022] FedCFamC1F 249. 

Failing to properly particularise claim

• "[98]  The Court notes that the wife was ordered to pay costs thrown away as she failed to properly particularise her claim against the trust by way of points of claim, causing the adjournment of a hearing scheduled for 27 and 28 February 2017. This was obviously before the concession was made by the respondents. The quantum of costs was apparently agreed, but remains unpaid. The Court notes that if it were asked, it would vacate the order in question. Given the concession made a year later, the particularisation of the wife’s claim was not necessary. The concession ultimately had nothing to do with the points of claim. Mr Garver’s evidence is that the concession was made after the 2008 deed was made available to him. It is the view of this Court that any costs thrown away should in fact be borne by the respondents. The indemnity costs order above would notionally cover it in any event.": Mathers & Garver [2023] FedCFamC1F 10.

Giving False Evidence

• "[218]  Upon it being clear that the wife’s false evidence had resulted in a considerable waste of the Court’s time, I was inclined to make an order for costs thrown away. However, upon reflecting upon all of the evidence, it becomes apparent that both parties gave evidence dishonestly and brazenly. I think that justice between the parties will be best served if I reserve the issue of costs and wait to see whether either makes an application.": Linwood & Linwood (No 3) [2024] FedCFamC1F 393. 

Appeal withdrawn on day of hearing

• no order as to costs - turns on facts - see principles outlined: Sieglinde & Umay [2025] FedCFamC1A 169.

Misconceived appeal; wholly unsuccessful

• "[55] During the hearing of the appeal, the father implicitly claimed to be impecunious. That is not a bar to a costs order (Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164 at [27]). The father has been wholly unsuccessful in what was at all times a misconceived appeal, especially when consideration is given to the proximity of the appeal hearing to the dates allocated for the final trial. The circumstances justify a costs order in favour of the mother. The quantum of the costs sought by the mother at scale, as itemised in her costs notice filed for the appeal, is reasonable. An order will be made that the father pay the mother’s costs of $11,155.76 within 21 days.": Pierce & Pierce (No 2) [2025] FedCFamC1A 162.

Misconduct by party

• "8. I delivered judgment dismissing the appeal on 21 August 2025. In so doing, I directed the parties to file written submissions regarding the quantum of costs within 14 days. This was in circumstances where within the judgment, I found that the submissions made by counsel for the wife concerning the affidavit of 21 October 2024 amounted to misconduct. 9. Consequently, I indicated that I proposed to make an order for the wife to pay the husband’s costs on a party/party basis up to and including 20 July 2025 (being the day prior to the attempted filing of the wife’s Amended Summary of Argument), and on an indemnity basis thereafter. My reasons for foreshadowing an order for indemnity costs were that I considered that such misconduct constituted exceptional circumstances justifying an order for indemnity costs, as recognised in Moy & Pao [2022] FedCFamC1A 17; (2022) FLC 94-073 at [32], referring to Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. 10. By Order 3 of the orders I made on 21 August 2025, I directed the parties to “file written submissions, of no more than three pages, in respect to the quantum of costs, within 14 days.” 11. That order was made in the context of paragraph [61] of my 21 August 2025 decision where, for reasons that had been set out, I stated that “I propose to make an order requiring the appellant to pay the costs of the first respondent in connection with the appeal, on a party and party basis up until, and including, 20 July 2025 and on an indemnity basis after that date.”: Carson & Colt (No 3) [2025] FedCFamC1A 186. 

• Inadequacies in claims, persistence in joinder of parties unmeritously, lack of valuation, making an offer two days before trial but not confirming acceptance until day of trial, sought to appeal then elected to re-plead - Where the Second and Third Respondents seek costs against the Applicant – Where the Applicant’s claims are alleged to be flawed and lack merit – Consideration of s 117(2A) factors – Where the Applicant’s conduct justifies a costs order being made on an indemnity basis as assessed: Frederic & Brisset (No 2) [2025] FedCFamC1F 696.

Quantum

• Evidence: "19. The husband’s affidavit says “my estimated costs associated with this application will be approximately $5,000 - $10,000.” It is not open to estimate a range and then ask for an order at the top of the range. The husband quite properly set out his costs of the appeal providing an evidentiary basis upon which to determine that application. The same is not true of this application. I accept that husband has incurred legal fees on this application. Absent evidence, doing the best I can, the wife should pay the husband’s costs of the costs application in the fixed sum of $2,500.": Warszawski & Warszawski (No 2) [2025] FedCFamC1A 203.