Kappa & Peroni - [2021] FamCAFC 65

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 2015

APPEAL 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kappa & Peroni

Details

AGLC: Kappa & Peroni [2021] FamCAFC 65
Case: [2021] FamCAFC 65
Decision Date: 5 May 2021

CaseChat Overview and Summary

In the matter of Mr Peroni and Ms Kappa, the Appeal Division of the Family Court of Australia was tasked with determining an application by Mr Peroni to file an application for costs of a discontinued appeal out of time. Ms Kappa had filed a Notice of Appeal in relation to a prior Family Court decision but subsequently discontinued it five months after filing. Mr Peroni, having incurred costs prior to the discontinuance, sought his costs from the discontinued appeal. The appeal division had to determine whether Mr Peroni could file his application for costs out of time and, if so, whether costs should be awarded.

The court was required to address two primary legal issues. The first was whether Mr Peroni's application to file his application for costs out of time should be granted. The second was whether, if the application was allowed, Mr Peroni was entitled to costs of the discontinued appeal and the application itself. The court needed to consider the relevant rules and precedents governing the extension of time to file applications for costs and the circumstances in which such costs might be awarded.

The court found that the application to file out of time should be granted due to the exceptional circumstances. Despite the late filing, Mr Peroni had acted diligently and promptly once he became aware of the need to apply for costs. The court also considered the principle that costs should follow the event and that Ms Kappa's discontinuance of the appeal was a significant event. As such, the court ordered that Ms Kappa pay Mr Peroni's costs in relation to the discontinued appeal and the application for costs. The final orders directed Ms Kappa to pay Mr Peroni $2,500 for the costs of the discontinued appeal and $2,000 for the costs of the application, both within 28 days.

Orders

Orders of the court

EAA 143 of 2020

SYC 5788 of 2015

APPEAL 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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

EAA 143 of 2020 SYC 5788 of 2015
APPEAL 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