Kappa & Peroni
[2021] FamCAFC 65
•5 May 2021
FAMILY COURT OF AUSTRALIA
Kappa & Peroni [2021] FamCAFC 65
Appeal from: Kappa & Peroni [2020] FamCA 767 Appeal number(s): EAA 143 of 2020 File number(s): SYC 5788 of 2015 Judgment of: RYAN J Date of judgment: 5 May 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL –Extension of time to file application for costs of a discontinued appeal – Where the application was filed two days late – Where the wife discontinued her Notice of Appeal five months after its filing – The husband seeks his costs of the discontinued appeal – Where the husband incurred costs prior to the wife’s discontinuance – Costs ordered. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 1.14, 22.42(3), Schedule 3
Division: Appeal Division Number of paragraphs: 7 Date of hearing: 5 May 2021 Place: Sydney Counsel for the Applicant: Mr Gould Solicitor for the Applicant: Taylor Scott Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Anne Day & Associates ORDERS
EAA 143 of 2020
SYC 5788 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR PERONI
Applicant
AND: MS KAPPA
Respondent
ORDER MADE BY:
RYAN J
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The husband’s application to file an application for costs of the discontinued appeal out of time be granted.
2.The wife pay the husband’s costs in relation to the discontinued appeal in the amount of $2,500 within twenty-eight (28) days.
3.The wife pay the husband’s costs in relation to the application for costs in the amount of $2,000 within twenty-eight (28) days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kappa & Peroni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RYAN J:
By an Application in an Appeal filed on 16 April 2021, Mr Peroni (“the husband”) seeks an extension of time to bring an application for costs against his former wife, Ms Kappa (“the wife”). The wife appealed from property settlement orders made after a defended hearing. However, she thought better of it, and on 16 March 2021, the wife discontinued her appeal by filing a Notice of Discontinuance.
The effect of r 22.42(3) of the Family Law Rules 2004 (Cth) (“the Rules”) is that the husband had 28 days to bring an application for costs. The husband’s solicitor thought that time ran from 18 March 2021. The significance of 18 March 2021 is that this is when the wife’s Notice of Appeal was listed for a procedural hearing so that directions could be made to ready the appeal for hearing. As the directions of 18 March 2021 show, although everybody knew that the Notice of Discontinuance had been lodged with the Court, it had not yet been processed. When it was processed, it was treated as filed on the day it was lodged. In these somewhat confusing circumstances, it is not hard to understand why the husband’s solicitor thought the 28 days ran from when the Notice of Discontinuance was processed rather than lodged. Consistent with that misunderstanding, the husband’s solicitor attempted to file the husband’s application for costs on 15 April 2021. He was, in fact, three days late. Thus, pursuant to r 1.14, the husband seeks an extension of time. Assuming the extension is given, the parties agree that the costs application would be dealt with in the same hearing. The husband should not be disadvantaged by his solicitor’s unfortunate but understandable mistake, and as I have already indicated, an extension of time as sought is appropriate.
Turning then to the costs application itself. The husband seeks costs in the amount of $8,000 plus the costs of making that application and the costs of the costs application. I do not yet know what those latter amounts amount to. The husband is content, whatever course is taken, that costs, if awarded, are fixed in this hearing. The wife would prefer an assessment, but frankly, enough is enough, and the issue of costs should not turn into a piece of satellite litigation. It is my intention to fix, if possible, the costs that will be awarded. This is a jurisdiction in which each party ordinarily pays their own costs unless there are factors pursuant to section 117(2) of the Family Law Act 1975 (Cth) (“the Act”) which dictate a different result.
Much was made of the merits of the Notice of Appeal filed on 13 October 2020, but in circumstances where the appeal did not proceed, its merits or lack thereof are unable to be determined and, the issue itself is irrelevant. The better point is that the husband has incurred costs unnecessarily by dint of the appeal being filed and then discontinued.
Turning to quantum, it is trite that parties are encouraged to take advice early and to thereafter take reasonable attempts to resolve their disputes, having regard to issues genuinely in dispute. Reference need only be made to the main purpose of the Rules to establish the point. It was reasonable for the husband to take advice from his solicitor and also advice from counsel in relation to the appeal. As to the totality of the work undertaken, as has already been made plain, this is not an application for indemnity costs, and the task is to consider what work was reasonably necessary and as calculated by reference to Schedule 3 of the Rules. As counsel for the applicant husband said, it is, indeed, a long time since I have needed to consider these issues as a practitioner. However, it is my daily experience that questions of costs arise and this Court is well equipped to understand what is required, for example, of a respondent to an appeal prior to the first effective procedural hearing. It was, at best, months before the respondent would be required to file a Summary of Argument in answer to that provided by the appellant wife. The wife had the right under the Rules, to amend the Notice of Appeal up until any point prior to filing her Summary of Argument. The costs incurred by the respondent in engaging counsel so far in advance of even seeing what it was the wife would present in support of her appeal cannot be justified on a party/party basis. I accept the applicant husband may have been anxious to take those steps, but that is a matter for him; it is not a matter that arises as a reasonably necessary expense in a party/party exercise.
Taking a broad-brush approach, it is my view that the costs properly incurred on a party/party basis and by reference to Schedule 3 of the Rules cannot exceed $2,500. It is, in my view, appropriate that the wife makes that payment to the husband. The effect of her Honour’s orders was that the wife received a significantly larger share of the parties’ property, something in the ballpark of $1.37 million compared to the husbands some $916,000. An order for costs will not cause her any hardship. I will order accordingly.
In relation to the costs of the costs application, the husband seeks an additional $3,452.13. Neither party has been wholly successful in relation to the position adopted in the primary application for costs but, as I see it, the husband has been slightly more successful than the wife in that he, firstly, secured an extension of time and then an order for the payment of an amount. The wife will have incurred some costs by reason of the husband’s failure to comply with the Rules, but I assume those costs are small. I am conscious, as counsel for the wife submits, that this is a jurisdiction in which the prima facie position is that each party bears their own costs, but again, that primary position can be departed from where the Court is satisfied there are justifying circumstances. Here, the justifying circumstances are that this arises from the wife taking steps in the litigation, in a plainly acrimonious litigation pathway, which ultimately she discontinued and which caused the husband to incur costs unnecessarily. Her stance in resisting the application for an extension of time in the circumstances could not be justified and an order for costs of the costs application is appropriate. I will order that the wife pay an additional $2,000.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 28 May 2021
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