Suris & Suris (No 2)
[2022] FedCFamC1A 45
•31 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Suris & Suris (No 2) [2022] FedCFamC1A 45
Appeal from: Suris & Suris [2021] FedCFamC1F 1 Appeal number(s): NAA 27 of 2021 File number(s): BRC 1193 of 2019 Judgment of: ALDRIDGE, BENNETT & HOWARD JJ Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – APPEAL – COSTS – Discontinued appeal – Where the appellant challenged the quantum of costs sought by the respondent – Where the amount sought by the respondent is justified in the circumstances –
Appellant to pay the respondent’s costs in a fixed sum.Cases cited: Suris & Suris [2022] FedCFamC1A 43 Number of paragraphs: 18 Date of hearing: 31 March 2022 Place: Brisbane (via video link) Solicitor for the Appellant: Lillas & Loel Lawyers Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Ogge Law ORDERS
NAA 27 of 2021
BRC 1193 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SURIS
Appellant
AND: MS SURIS
Respondent
ORDER MADE BY:
ALDRIDGE, BENNETT & HOWARD JJ
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs fixed in the sum of $8,042.99 within three months of the date of these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Suris & Suris (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
On 30 September 2021, Mr Suris (“the appellant”) filed a Notice of Appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1). An Amended Notice of Appeal was filed on 16 November 2021.
On 30 March 2022, the day before the appeal was scheduled to be heard, the appellant filed a Notice of Discontinuance. Ms Suris (“the respondent”) seeks an order that the appellant pay her costs of the appeal.
The orders made by the primary judge concerned both property and parenting. There was no appeal against the parenting orders. The appeal was against the primary judge’s dismissal of the appellant’s application to set aside consent property orders made by a registrar on 26 July 2019.
On 15 November 2021, an appeal registrar made a number of orders to prepare the appeal for hearing. The appellant was required to file and serve a Summary of Argument and List of Authorities by 21 January 2022. He did not do so.
The appeal registrar informed the appellant on 1 March 2022 that at the hearing of the appeal on 31 March 2022 the Court would consider whether the appeal should be summarily dismissed because of his failure to comply with the direction.
The appellant filed an Application in an Appeal on 21 March 2022 seeking an extension of time in which to file the requisite documents. Orders to that effect were made on 24 March 2022 and the respondent’s costs were reserved (Suris & Suris [2022] FedCFamC1A 43).
The respondent filed her Summary of Argument on 30 March 2022.
The filing of the Notice of Discontinuance brought the appeal to an end. The costs incurred by the respondent, including those additional costs caused by the appellant’s failure to comply with directions and subsequent application have been entirely wasted.
At the hearing of the application for costs, the solicitor for the appellant did not oppose an order for costs.
The respondent filed an amended costs schedule on 30 March 2022 identifying her costs calculated pursuant to r 13.53(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at $8,042.99.
That sum was disputed by the appellant who submitted that because the appearance before the Court on 24 March 2022 did not exceed one hour and since counsel for the respondent sought costs in the sum of between $6,500–$8,000, the lesser sum was the appropriate figure to be adopted.
The sum claimed by the respondent cannot be said to be large or excessive in the circumstances. Her costs were inflated by the appellant’s failure to comply with the timetable and the subsequent application in which he was granted an indulgence to file his Summary of Argument late.
I consider that the just order in all of the circumstances is that the appellant pay the respondent’s costs fixed in the sum of $8,042.99.
The appellant sought an order that he be given three months to pay that sum. That was not opposed.
Therefore, I would propose an order that the appellant pay the respondent’s costs fixed in the sum of $8,042.99 within three months of today.
BENNETT J:
I agree with the order proposed by Aldridge J and the reasons expressed by him.
HOWARD J:
I also agree with the order proposed by Aldridge J and I adopt his reasons also.
ALDRIDGE J:
The order of the Court will be:
(1)The appellant pay the respondent’s costs fixed in the sum of $8,042.99 within three months of the date of these orders.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Aldridge, Bennett & Howard. Associate:
Dated: 1 April 2022
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