Manderville & Borah

[2021] FamCAFC 95

FAMILY COURT OF AUSTRALIA

Manderville & Borah [2021] FamCAFC 95

Appeal from:	Borah & Manderville (No.3) [2020] FCCA 3248
Appeal number(s):	NOA 80 of 2020
File number(s):	BRC 1678 of 2015
Judgment of:	RYAN J
Date of judgment:	15 June 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – where the respondent seeks costs arising from the appellant’s successful application for an adjournment of her appeal – circumstances which justify an order for costs – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117
Division:	Appeal Division
Number of paragraphs:	3
Date of hearing:	15 June 2021
Place:	Sydney
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Drysdale
Solicitor for the Respondent:	Hopgood Ganim Lawyers

ORDERS

NOA 80 of 2020
BRC 1678 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS MANDERVILLE

Appellant

AND:

MR BORAH

Respondent

ORDER MADE BY:	RYAN J
DATE OF ORDER:	15 JUNE 2021

THE COURT ORDERS THAT:

1.The appellant’s application filed 2 June 2021 for an adjournment of the appeal (NOA 83 of 2020) be allowed.

2.The appellant is to file and serve an Amended Notice of Appeal by 4.00 pm on 13 July 2021.

3.The appellant has leave to rely on her Summary of Argument dated 14 June 2021 and that document is to be filed forthwith.

4.The respondent is to file and serve a Summary of Argument by 4.00 pm on 10 August 2021.

5.The appellant pay the respondent’s costs of the adjournment of today’s appeal hearing fixed in the amount of $4,000 to be paid within eight (8) weeks.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Manderville & Borah 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:

1. This is an application by Mr Borah (“the respondent”) for costs arising from Ms Manderville’s (“the appellant”) successful application for an adjournment of her appeal.  The application for an adjournment succeeded on the basis of information provided to the respondent late yesterday and this morning.  The gravamen of the submission is that had the information been provided in an appropriate and timely way, the appearance today could have been avoided and the appellant’s lack of preparation of the appeal for a hearing today may have been able to be accommodated.  Thus the appeal could have been dealt with at some future time without unnecessary costs for today’s appearance. 

2. Costs are to be determined in accordance with s 117 of the Family Law Act 1975 (Cth) (“the Act”) and, ordinarily, parties pay their own costs unless there are circumstances which justify an order for costs. In this case, it is the late provision of relevant information to the respondent by the appellant which amounts to circumstances which justify an order for costs. The only other matter that requires consideration pursuant to s 117(2A) of the Act is the appellant’s financial circumstances. According to the judgment under appeal, the appellant is the sole registered proprietor of a property. It appears to be common ground that that property has now been sold. According to the appellant, it was held on trust for the parties’ children. The respondent puts this in issue and it does not accord with findings made by the primary judge. But even if that is ultimately shown to be the case, impecuniosity is not of itself a bar to an order for costs. Litigants undertake proceedings conscious that they have obligations as to the timely conduct of the litigation and to comply with directions for the orderly progression of their case. When a party fails to comply with directions they must understand that there is some prospect that even if they are of limited financial circumstances, an order for costs may be made against them.

3. The amount sought by the respondent is appropriately modest and even if it be the case that the respondent’s legal fees are being met, for example, by his father and that his financial position by reference to the trial judgment would appear to be stronger than that of the appellant; the fact is that it is the failure of the appellant to provide the information that resulted in an adjournment in a timely way resulted in the respondent incurring legal costs unnecessarily.  The order for costs in the amount sought is therefore justified.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan.

Associate:

Dated:       24 June 2021