Chang and Chen - [2019] FamCAFC 105

FAMILY COURT OF AUSTRALIA

CHANG & CHEN

[2019] FamCAFC 105

FAMILY LAW – APPEAL – Application for security for costs – Where the application is brought bona fide – Where the respondent had previously failed to give full and frank disclosure as to her financial circumstances – Where it cannot be found that an order for security for costs would stifle the appeal – Application allowed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.05, 22.12

Sawer & Sawer [2007] FamCA 140

APPLICANT:

Hwei Ching Chang

RESPONDENT:

Mei-Ling Chen

FILE NUMBER:

SYC

2741

2014

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

21 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

13 June 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2019

LOWER COURT MNC:

[2019] FamCA 97

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Barnett

SOLICITOR FOR THE APPLICANT:

Linden Legal

SOLICITOR FOR THE RESPONDENT:

WB Legal

Orders

That Mei-Ling Chen pay to the trust account of Linden Legal $20,000 as security for any costs ordered in the appeal (EAA 31 of 2019) within twenty-one (21) days from the date of these orders.
That in the event that security as provided in Order 1 herein is not paid, then the appeal be stayed pending compliance with the orders.
That the costs of this application are reserved to the appeal hearing, however, in the event that the appeal is deemed abandoned or is dismissed, the applicant (Hwei Ching Chang) has twenty-eight (28) days within which to relist his application for costs determination.

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 Cao & Chau 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 31 of 2019
File Number: SYC 2741 of 2014

Hwei Ching Chang

Applicant

And

Mei-Ling Chen

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 22 May 2019, Hwei Ching Chang (“the applicant”) seeks an order that Mei-Ling Chen (“the respondent”) pay $56,000 to his solicitors as security for any costs awarded to him in appeal EAA 31 of 2019, and that the appeal be stayed until payment is made. This appeal is instituted by the respondent against orders made by the primary judge on 27 February 2019, dismissing the respondent’s application for property settlement orders.
The respondent resists the application.

Relevant background

So as to give this application context, it is necessary to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chang and Chen

Details

AGLC: Chang and Chen [2019] FamCAFC 105
Case: [2019] FamCAFC 105
Decision Date: 21 June 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between Mei-Ling Chen and Hwei Ching Chang, with the latter seeking an appeal against a decision made in the primary case. The nature of the appeal related to costs incurred during the initial proceedings, with Chang asserting that Chen had not adequately secured the payment of these costs. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court had to determine included whether Chen was required to provide security for the costs of the appeal, as requested by Chang, and if the failure to do so warranted the stay of the appeal proceedings. Additionally, the court needed to decide on the appropriate conditions under which any costs incurred in the current application would be addressed.

In delivering the judgment, the court ruled that Chen must provide security for the costs of the appeal as requested by Chang. The reasoning behind this decision was based on the need to ensure that costs do not remain unpaid, which could potentially prejudice the outcome of the appeal. The court further ordered that if the security was not paid within the stipulated timeframe, the appeal would be stayed. The court also reserved the costs of the current application to the appeal hearing, but allowed for a relisting of the costs application if the appeal were to be deemed abandoned or dismissed. The form of the orders was subject to final entry in the court's records.

Orders

Orders of the court

That Mei-Ling Chen pay to the trust account of Linden Legal $20,000 as security for any costs ordered in the appeal (EAA 31 of 2019) within twenty-one (21) days from the date of these orders.

That in the event that security as provided in Order 1 herein is not paid, then the appeal be stayed pending compliance with the orders.

That the costs of this application are reserved to the appeal hearing, however, in the event that the appeal is deemed abandoned or is dismissed, the applicant (Hwei Ching Chang) has twenty-eight (28) days within which to relist his application for costs determination.

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

Background

Background to the litigation

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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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