Suris & Suris (No 2)

Case [2023] FedCFamC1F 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

FIRST INSTANCE

Suris & Suris (No 2) [2023] FedCFamC1F 89

File number(s): BRC 6911 of 2022
Judgment of: CAREW J
Date of judgment: 24 February 2023
Catchwords:

FAMILY LAW – ENFORCEMENT - application for enforcement of a sale order, enforcement of interest payable on a money order and enforcement of two costs orders – where property proceedings were finalised in 2019 – enforcement of sale order dismissed – enforcement of interest on money order and costs orders with interest

FAMILY LAW – COSTS – leave sought to bring a costs application for the substantive proceedings out of time –  where the applicant seeks indemnity costs – where the conduct of the respondent impeded the orderly progress of the parenting proceedings – costs order justified however circumstances do not justify an order for indemnity costs

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294

Gallo v Dawson (1990) 93 ALR 479

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

In the Marriage of I and I (No 2) (1995) FLC 92-625

Kohan and Kohan (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

McMillan & McMillan  [2016] FamCA 387

Nada & Nettle (Costs) (2014) FLC 93-612

Parke & the Estate of the Late A Parke (2016) FLC 93–748

Penfold v Penfold (1980) 144 CLR 311

Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151

Number of paragraphs: 69
Date of hearing: 12 December 2022  
Place: Brisbane
Counsel for the Applicant: Mr Baston
Solicitor for the Applicant: Lillas & Loel Lawyers
Counsel for the Respondent: Ms Laylee
Solicitor for the Respondent: Ogge Law

ORDER

BRC 6911 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SURIS

Applicant
AND:

MR SURIS

Respondent

order made by:

CAREW J

DATE OF ORDER:

24 February 2023

THE COURT ORDERS THAT:

1.The application to enforce the sale order as contained in the order made by consent on 26 July 2019 is dismissed.

2.By way of enforcement of the money order made by consent on 26 July 2019:

(a)Mr Suris (“the respondent”) pay to Ms Suris (“the applicant”) interest on the sum of $105,000 calculated from 26 July 2020 being the date it was due for payment to 15 July 2022 being the date of payment fixed in the sum of $12,931.82; and

(b)The said sum of $12,931.82 be paid within 60 days.

3.By way of enforcement of the costs order made on 6 October 2020:

(a)The respondent pay the principal sum of $7,973;

(b)Interest thereon in the sum of $631.59 up to and including 25 July 2022;

(c)Additional interest on the principal…

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AGLC
Suris & Suris (No 2) [2023] FedCFamC1F 89
Case
[2023] FedCFamC1F 89
Decision Date

CaseChat Overview and Summary

The case of Suris & Suris (No 2) involved a dispute between Ms Suris and Mr Suris regarding enforcement of various orders made in their property settlement proceedings. The matter was before the Family Court of Australia where the primary judge was required to decide several legal issues relating to the enforcement of monetary and property orders, as well as costs orders. The court was tasked with determining whether the enforcement of the sale order should proceed by default, the calculation of interest on money orders, and the enforcement of interim and appeal costs orders. Additionally, the court had to consider whether leave should be granted to file an application for costs in the substantive proceedings, and whether the former matrimonial home should be sold if the respondent failed to pay all the sums owed.

The court found that the enforcement of the sale order should not proceed by default, given the complex nature of the dispute and the need for further evidence. Regarding the interest on money orders, the court calculated the amount to be $12,931.82. The interim costs order dated 6 October 2020 and the appeal costs order dated 31 March 2022 were both to be enforced, with interest calculated thereon. The court granted leave for the applicant to file an application for costs in the substantive proceedings nunc pro tunc, and fixed the respondent's costs at $46,762. The enforcement application costs were fixed at $6,600. In the event of non-payment of all sums owed, the court ordered the sale of the former matrimonial home.

In conclusion, the court dismissed the enforcement of the sale order by default, enforced the money, interim costs, and appeal costs orders with interest, granted leave for an application for costs in the substantive proceedings, and fixed the costs accordingly. The court also ordered the sale of the former matrimonial home if the respondent failed to pay all sums owed.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which will become apparent, I propose to order: (a)Dismissal of the enforcement of the sale order other than by way of default;(b)Enforcement of the money order by payment of interest in the sum of $12,931.82;(c)Enforcement of the interim costs order dated 6 October 2020 in the sum of $7,973 together with interest thereon;(d)Enforcement of the appeal costs order dated 31 March 2022 in the sum of $8,042.99 together with interest thereon;(e)Leave be granted to file an application for costs in the substantive proceedings (involving parenting and setting aside a property order) nunc pro tunc and for the respondent to pay costs fixed in the sum of $46,762; (f)Costs of the enforcement application fixed in the sum of $6,600; and(g)In default of payment of all the above sums, the former matrimonial home to be sold.BACKGROUND By way of brief background, Ms Suris (“the applicant”) and Mr Suris (“the respondent”) were married in 2003 and separated in 2017. They have three children aged 19, 17 and 14. By an order made on 2 September 2021, the respondent is restrained from having any contact or communication with the children unless it is initiated by them. The applicant is 45 years of age and works in two service industries. The respondent is 52 years of age and unemployed. The respondent was discharged medically unfit from the Public Service in 2017 having acquired a condition. The respondent receives a pension. On 26 July 2019, the applicant and respondent finalised their property settlement proceedings by consent and an order was made reflecting their agreement (“the 2019 order”). The settlement of the property dispute in 2019 occurred in circumstances where the parties were significantly apart on what should be included in the property pool to be divided and the result represented a significant compromise by each party on their respective positions. The applicant contends that she only received about 15 per cent of what should have been in the pool while the respondent contends that the applicant received more than the total property pool and that he had to borrow money to meet his obligations under the 2019 order. A significant issue between the parties related to the ownership of a property at T Town that the respondent had purchased but registered in his brother’s name. In my Reasons for Judgment delivered on 2 September 2021, I noted the respondent’s concessions about this property. I set out below the relevant paragraphs from the Reasons:128. Included in [the] above table is a property at [T Town]. It is common ground that the [respondent] paid for the property using part of his lump sum […] monies. The property is registered in his brother’s name. During cross-examination the [respondent] denied he registered the property in his brother’s name in order to keep secret what he had earlier said was intended as a gift to his parents. However in the [respondent’s] affidavit filed 9 April 2019 the [respondent] said the following:49. Following the receipt of the first instalment, I bought my parents a unit at [T Town] (registered in my brother’s name so as to surprise my parents) at a cost of [over $130,000] in recognition of the significant financial assistance they rendered to me in earlier years. I wanted my parents to have their own place to stay when visiting my [Suburb V] home as it was too small. I manage the property for my parents and extended family who use the unit. I do not pay any of the expenses for the unit. 129. During cross-examination the [respondent] contended that he owed his brother money at the time of purchase. The [respondent] produced no evidence to substantiate that claim. In any event, the [respondent] conceded that he has not only managed the property since its purchase but received all the rent from the letting of the [T Town] property and paid all of the outgoings. The [respondent] further conceded that his parents have never been to the property.

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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