Banh & Chao
[2021] FedCFamC1F 38
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Banh & Chao [2021] FedCFamC1F 38
File number(s): MLC 12059 of 2019 Judgment of: MACMILLAN J Date of judgment: 14 September 2021 Catchwords: FAMILY LAW – COSTS – where an order for costs was made – where the quantum of costs the first named respondent was to pay the applicant was in dispute – where the first named respondent did not file submissions but sent a letter to the Court opposing the quantum of costs sought by the applicant – where an order for costs is made in the sum sought by the applicant. Legislation: Family Law Rules 2004 (Cth) r 19.18 Division: Division 1 First Instance Number of paragraphs: 8 Date of last submission/s: 5 July 2021 Date of hearing: 29 June 2021 Place: Melbourne Solicitor for the Applicant: Kammoun Sukari Lawyers First Named Respondent: In Person Solicitor for the Second Named Respondent: Roberts Gray Lawyers Solicitor for the Third Named Respondent: Roberts Gray Lawyers Solicitor for the Fourth Named Respondent: Mustard Seed Lawyers Solicitor for the Fifth Named Respondent: Mustard Seed Lawyers ORDERS
MLC 12059 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BANH
ApplicantAND: MS HIUNG
First Named Respondent
MS SIU
Second Named Respondent
MR HOK
Third Named Respondent
MS CHAO
Fourth Named Respondent
MR PANG
Fifth Named Respondent
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The First Named Respondent pay the Applicant’s costs of and incidental to paragraphs 1 and 3 of her Response to Initiating Application filed 21 February 2020 fixed in the sum of $41,517.72.
2.The Applicant’s application for costs be otherwise dismissed and removed from the list of cases awaiting hearing.
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).
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 Banh & Chao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Macmillan J
On 23 June 2021 I handed down my reasons for judgment and made orders as follows:
1. The First Named Respondent pay the Applicant’s costs of an incidental to paragraphs 1 and 3 of her Response to Initiating Application filed 21 February 2020 on a party and party basis.
2. The quantum of the costs to be paid by the First Named Respondent to the Applicant be reserved.
3. The Applicant’s application for costs be otherwise adjourned for mention before the Honourable Justice Macmillan at 11.00 am on 29 June 2021.
On 29 June 2021 the applicant provided Pursuant to Rule 19.18 of the Family Law Rules 2004 (Cth), the Court may make an order for costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (e.g lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
The solicitor for the applicant (“the de facto husband”) filed an Affidavit on 29 June 2021 setting out the costs he said the de facto husband had incurred as follows:
8. The applicant incurred the following legal costs in respect of the costs incidental to paragraphs (l) and (3) of the Response to the Initiating application filed 21 February 2020:
(1) Pursuant to the applicant's costs notice:
i. Costs up to 28 October 2020: $65,801
(2) Costs from 1 November 2020 to 22 December 2020: $11,000
(3) Costs from 23 December 2020 to present: $2,200.
Total costs: of $79,001 (Total Costs)
9. The applicant seeks that 60% of his Total Costs be ordered as payable by the first respondent to him, namely, $47,400.60.
At the mention on 29 June 2021 the de facto husband’s submission was that the first respondent (“the de facto wife”) be ordered to pay his costs calculated in accordance with schedule 3 of the Family Law Rules in the sum of $41,517.72.
Although the de facto wife’s solicitor appeared at the mention he advised that he had not received any instructions from his client and was intending to file a notice of ceasing to act. That notice was filed on 5 July 2021. On that basis I determined that I should give the de facto wife a further opportunity to file any submission she wished to make in relation to the quantum of costs sought by the de facto husband and I made orders that she file those submissions by 6 July 2021.
The de facto wife did not file any submissions however on 5 July 2021 the Court received a letter in which she said that she did not agree with the costs sought by the de facto husband because he having provided different figures she could not verify the amount he now seeks. I note that the de facto wife’s letter was in mandarin accompanied by a non-accredited translation of her letter in mandarin with the note:
…Because I do not understand English, I can only translate by the network translator at present. I do not know whether the translation result is correct or not.
In so far as the de facto wife submitted that the de facto husband had sought different amounts I am satisfied that the difference between the figures is the difference between indemnity costs and party and party costs.
In all of the circumstances the de facto husband having provided a detailed schedule of the costs he has incurred calculated on a party and party basis and the de facto wife having had the opportunity to make submissions with respect to the quantum of costs I am satisfied that I should make an order in the terms sought by the de facto husband.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 14 September 2021
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