Chen and Chen and Ors - [2017] FamCA 115

FAMILY COURT OF AUSTRALIA

CHEN & CHEN AND ORS

[2017] FamCA 115

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 198; [2001] HCA 63 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Chen & Chen and Anor [2016] FamCA 758 D and D (Costs) (No 2) [2010] FamCAFC 64; (2010) FLC 93-435 I and I (No 2) (1995) FLC 92-625

APPLICANT/WIFE:

Ms Chen

1^ST RESPONDENT/HUSBAND:

Mr Chen

2^ND RESPONDENT:

3^RD RESPONDENT

4^TH RESPONDENT

5^TH RESPONDENT

6^TH RESPONDENT

7^TH RESPONDENT

8^TH RESPONDENT

9^TH RESPONDENT

10^TH RESPONDENT

Ms Quen

C Pty Ltd (ACN …)

Quen Pty Ltd (ACN …)

E Pty Ltd (ACN …)

Company F (ACN …)

G Pty Ltd (ACN …)

Mr A Chen

Mr B Chen

Mr C Chen

FILE NUMBER:

MLC

5805

2016

DATE DELIVERED:

2 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

SOLICITOR FOR THE

RESPONDENT/HUSBAND:

Clancy & Triado

SOLICITOR FOR THE 2^ND RESPONDENT:

Kenna Teasdale Lawyers

Orders

That the husband and the wife be jointly and severally liable for the costs of the third party/ second respondent of this interlocutory proceeding in such sum as may be agreed and failing agreement, as assessed.

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 Chen & Chen and Ors 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5805 of 2016

Ms Chen

Applicant

And

MR CHEN

Respondent

And

Ms Quen
Second Respondent

And

C PTY LTD (ACN …)
Third Respondent

And

QUEN PTY LTD (ACN …)
Fourth Respondent

And

E PTY LTD (ACN …)
Fifth Respondent

And

COMPANY F (ACN …)
Sixth Respondent

And

G PTY LTD (ACN …)
Seventh Respondent

And

Mr A Chen
Eighth Respondent

And

Mr B Chen
Ninth Respondent

And

Mr C Chen
Tenth Respondent

REASONS FOR JUDGMENT

On 8 September 2016, I discharged an injunction restraining Ms Quen (the third party) from exercising what I found on the evidence, to be her lawful right to conduct a business as her own. That injunction had been made by the court on 27 July 2016.
As a consequence of my orders, the third party now seeks costs against Ms Chen (the wife) and Mr Chen (the husband) jointly and severally.
I…

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 Chen and Chen and Ors

Details

AGLC: Chen and Chen and Ors [2017] FamCA 115
Case: [2017] FamCA 115
Decision Date: 2 March 2017

CaseChat Overview and Summary

In the interlocutory proceeding before Cronin J, the parties involved were the husband and wife, and a third party who was also the second respondent. The dispute concerned costs in relation to this interlocutory matter.

The primary legal issue before the court was the determination of liability for the costs of the third party/second respondent in the interlocutory proceeding.

Cronin J ordered that the husband and wife be jointly and severally liable for the costs of the third party/second respondent. This liability is to be in an amount to be agreed upon by the parties, and failing agreement, the costs are to be assessed. The form of this order is contingent upon its formal entry into the Court's records.

Orders

Orders of the court

That the husband and the wife be jointly and severally liable for the costs of the third party/ second respondent of this interlocutory proceeding in such sum as may be agreed and failing agreement, as assessed.

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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