PHONG AND ANOR & SCOTT

[2020] FamCAFC 156

FAMILY COURT OF AUSTRALIA

PHONG AND ANOR & SCOTT [2020] FamCAFC 156

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent’s appeal against an indemnity costs order was abandoned – Where the respondent filed an Application in an Appeal in relation to the abandoned appeal and that application was subsequently discontinued – Where the applicants seek their costs of that application – Where the respondent was entirely unsuccessful in his application – Where the respondent’s conduct of the proceedings generally, the appeal and the application justify a costs order – Respondent to pay the applicants’ costs in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the respondent filed an Application in an Appeal seeking an adjournment prior to the hearing – Where there was no appearance by the respondent at the hearing – Where the point of the adjournment is unknown – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Family Law Rules 2004 (Cth) rr 22.21, 22.40, 22.44

FIRST APPLICANT: Mr Phong

SECOND APPLICANT: Ms Phong

RESPONDENT: Mr Scott

FILE NUMBER: SYC 59 of 2010

APPEAL NUMBER: EAA 126 of 2019

DATE DELIVERED: 25 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 June 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 23 October 2019

LOWER COURT MNC: [2019] FamCA 765

REPRESENTATION

COUNSEL FOR THE FIRST AND

SECOND APPLICANTS:

Mr Zipser

SOLICITOR FOR THE FIRST AND

SECOND APPLICANTS:

V Lawyers

THE RESPONDENT: No appearance

Orders

1. The Application in an Appeal filed on 23 June 2020 is dismissed.

2. The respondent is to pay the applicants’ costs fixed in the sum of $4,700.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phong and Anor & Scott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 126 of 2019
File Number: SYC 59 of 2010

Mr Phong

First Applicant

And

Ms Phong

Second Applicant

And

Mr Scott

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for costs of an Application in an Appeal where the application was discontinued and the appeal itself was abandoned.

2. There is no appearance this morning from Mr Scott (“the respondent”), who was the appellant in the appeal. It is quite clear that the respondent is aware of the hearing this morning for at least two reasons: one is that he filed with the Appeals Registry an…