Commonwealth Consolidated Regulations

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 - RULE 12.10

  (1)   A party may apply to the court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding.

  (2)   A maximum costs order may be made:

  (a)   at any court event; and

  (b)   on the court's own initiative or on the application of a party.

  (3)   A maximum costs order may be made in respect of:

  (a)   the proceeding as a whole; or

  (b)   any issues that are ordered to be tried separately.

  (4)   The court may make a maximum costs order in relation to any or all of the parties, if:

  (a)   it is in the interests of justice to do so; and

  (b)   there is a substantial risk that, without such an order, costs will be disproportionately incurred; and

  (c)   the court is not satisfied that the risk referred to in paragraph   (b) can be adequately controlled by either or both of the following:

  (i)   case management directions or orders made under this Part;

  (ii)   a detailed assessment of costs.

  (5)   In considering whether to exercise its discretion to make a maximum costs order under this rule, the court must consider all the circumstances of the proceeding, including:

  (a)   whether there is a substantial imbalance between the financial positions of the parties; and

  (b)   whether the costs of determining the appropriate maximum amount are likely to be proportionate to the overall costs of the proceeding; and

  (c)   the stage which the proceeding has reached; and

  (d)   the costs that have been incurred to date and the likely future costs of the proceeding.

  (6)   The amount specified in a maximum costs order must not include an amount that a party is ordered to pay because the party:

  (a)   has failed to comply with, or has sought an extension of time for complying with, an order or any of these Rules; or

  (b)   has sought leave to amend a document; or

  (c)   has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.

  (7)   The court may vary an amount specified in a maximum costs order if, in the court's opinion, there are special reasons and it is in the interests of justice to do so.

Note:   A maximum costs order does not affect the power of the court to make an adjustment to the parties' property taking into account their actual legal costs.