Chiou and Vien (No. 2)
[2018] FamCAFC 123
•5 July 2018
FAMILY COURT OF AUSTRALIA
| CHIOU & VIEN (NO. 2) | [2018] FamCAFC 123 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Costs – Where the applicant seeks her costs of the respondent’s discontinued appeal – Financial positions of the parties – Where the appeal was wholly unsuccessful – Respondent ordered to pay the applicant’s costs of the appeal on a party and party basis – Offer of settlement – Where the respondent imprudently refused an offer of settlement in relation to the costs of the discontinued appeal – Respondent ordered to pay the costs of the applicant’s costs application on an indemnity basis. |
| Family Law Act 1975 (Cth) s 117 |
| Chiou & Vien [2018] FamCAFC 21 D & D (Costs) (No.2) (2010) FLC 93-435 Kohan and Kohan (1993) FLC 92-340 Lenova & Lenova (Costs) [2011] FamCAFC 141 Limousin v Limousin (Costs) (2007) 38 Fam LR 478 |
| APPLICANT: | Ms Chiou |
| RESPONDENT: | Mr Vien |
| FILE NUMBER: | SYC | 699 | of | 2014 |
| APPEAL NUMBER: | EA | 87 | of | 2017 |
| DATE DELIVERED: | 5 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 5 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2017 |
| LOWER COURT MNC: | [2017] FCCA 1529 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Heng solicitor |
| SOLICITOR FOR THE APPLICANT: | Swaab Attorneys |
| THE RESPONDENT: | In person |
Orders
Mr Vien (“the respondent”) is to pay the costs of Ms Chiou (“the applicant”) of Appeal EA87 of 2017, including the Application in an Appeal filed on 9 November 2017, assessed on a party and party basis.
The respondent is to pay the applicant’s costs of this application on an indemnity basis, assessed in the sum of $3,661.
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 Chiou & Vien (No. 2) 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: EA 87 of 2017
File Number: SYC 699 of 2014
| Ms Chiou |
Applicant
And
| Mr Vien |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application for the costs of a discontinued appeal.
On 31 July 2017, Mr Vien filed a Notice of Appeal against orders made by Judge Kemp on 4 July 2017 in proceedings against Ms Chiou. His Honour declared that there was no de facto relationship between the parties as had been asserted by Mr Vien.
On 13 February 2018, I ordered Mr Vien to provide the security for costs for Ms Chiou’s costs of the appeal in the sum of $20,000 (Chiou & Vien [2018] FamCAFC 21). I did so for two primary reasons. First, Mr Vien failed to meet a costs order made against him in favour of Ms Chiou by the Local Court in the sum of $6,600. Secondly, I found that contrary to his assertions, there was uncertainty about the amount of property held by him and rent received by him. He had also been on a number of overseas holidays. I therefore concluded that an order for the payment for security for costs would not stifle the appeal.
Mr Vien did not provide the security as ordered. On 7 May 2018 he filed a Notice of Discontinuance.
Costs of the appeal
Parties in proceedings in the Family Court are to bear their own costs unless there are circumstances that justify a different order (s 117 of the Family Law Act 1975 (Cth) (“the Act”)). In considering whether to make such an order, the Court must have regard to the matters set out in s 117(2A) of the Act. The parties relied on the following matters.
Ms Chiou earns approximately $60,000 per year. She owns an investment property valued at $850,000 which is subject to a mortgage of $570,000. She says that the rental income is insufficient to meet the outgoings on the property. She lives in rental accommodation, owns a vehicle subject to a loan and has $8,000 in the bank.
Mr Vien does not identify any property owned by him. He merely says that he has a negative net worth. He says that he is unemployed and owes $25,000 to his father who has been lending him money. Mr Vien’s evidence did not seek to challenge the following evidence from Ms Chiou’s affidavit:
17.On 1 April 2015, [Mr Vien] filed a Financial Statement in the Federal Circuit Court of Australia where he described himself as unemployed but receiving a salary of $200 per week and rent of $200 per week.
18.On 15 March 2016 [Mr Vien] filed a Financial Statement in the Federal Circuit Court of Australia where he described himself as unemployed but receiving rent of $200 per week.
19.On 20 April 2018, I was able to access [Mr Vien]’s Instagram profile … which was available for public viewing on the Internet via the website This profile is no longer available online. The photographs in this profile depict [Mr Vien]’s face. [Mr Vien] appears from his Instagram profile to have had the capacity for overseas travel in the last 8 months, including but not limited to travel to [Countries N, S, C, H, T and E] as shown in photographs as follows:
(a)location “[recreational facility in Country T]” date “3 days ago”
(b)location “[tourist attraction, Country N]”, date: “1 month ago”, caption …;
(c)location: “[tourist attraction, Country C]”, date: “1 month ago”, caption “Night out at [tourist attraction and nightclub] during a 22 hour stopover”
(d)location: “Starbucks [Country S]”, date: “1 month ago”
(e)location: “[Country H]”, date: “5 months ago”
(f)location: “[Country T]”, date: “5 months ago”
(g)location: “[Country E]”, date: “9 months ago”
…
20.I have also viewed an Instagram picture posted by [Mr Vien] dated ‘4 months ago’ where he indicates he has spent almost 2 months travelling overseas. [Mr Vien] captions this photo: [caption omitted]
(As per the original)
I am not satisfied that Mr Vien has fully disclosed his financial position. I do not know what, if anything, has happened to the property he owned in 2014. He has had the apparent ability to travel to Countries N, S, C, E, T and H in the last eight months, excepting that his stays in some of those places, particularly Country C and Country H, might be described as stopovers. I conclude he has the ability to meet a costs order.
In any event, impecuniosity is not a bar to a costs order because otherwise an impecunious litigant could litigate with impunity: Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
I take into account that the appeal was wholly unsuccessful in that it was discontinued.
Ms Chiou also relies on an offer of settlement made to settle the appeal. As no steps had been taken to prosecute the appeal, on 18 April 2018 the Court, on its own motion, listed the appeal on 24 May 2018 for consideration of dismissal.
On 8 May 2018 (being unaware that a Notice of Discontinuance had been filed the previous day) the lawyers for Ms Chiou wrote to Mr Vien proposing that the appeal be dismissed with an order that he pay Ms Chiou’s costs assessed in the sum of $3,500. Mr Vien took no steps in relation to that offer. Although the appeal had been discontinued, costs remained a live issue.
In summary, the appeal has been wholly unsuccessful. Ms Chiou does not have the ability easily to bear the costs of the appeal. Mr Vien, as best I can tell on the evidence, has the means to pay them. There will be a costs order in Ms Chiou’s favour.
She seeks an order that these costs be assessed on an indemnity basis in the sum of $5,037.54 for her solicitors and $3,597 for counsel.
Costs are awarded on an indemnity basis only in exceptional circumstances: Kohan and Kohan (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478 and D & D (Costs) (No.2) (2010) FLC 93-435.
In the present case the exceptional circumstances relied on are as follows:
·The appeal had no merit. Certainly in my reasons of 13 February 2018, I considered that the appeal had little merit. Of course, one of the difficulties in assessing prospects of success of an appeal, prior to the hearing of the appeal itself, is that very little material is available to illuminate the prospects of success. It is a matter to which I do not give significant weight.
·Mr Vien continues to pursue proceedings against Ms Chiou in the Federal Circuit Court of Australia.
·Mr Vien continues to have the capacity to travel overseas.
·The fees agreement between Ms Chiou and her lawyers provides for fees higher than scale.
I consider that none of these is an exceptional circumstance that would justify an order for security for costs.
Ms Chiou also relied upon the offer of settlement made in the matter on 8 May 2018. As the appeal was discontinued, the weight that can be given to that offer is somewhat diminished.
Taking all these matters into account, I am not satisfied that exceptional circumstances exist that would justify an order for costs. There will therefore be an order for costs assessed on a party and party basis.
In the event that a costs order was made, Mr Vien sought an order that those costs not be payable until after the completion of his new proceedings against Ms Chiou in the Federal Circuit Court of Australia. Apparently those proceedings include, amongst other things, actions for duress. I do not consider that to be a sufficient reason to delay the payment of costs.
Costs of this application
Ms Chiou seeks the costs of this application in the sum of $3,661. They are the costs of the application assessed on an indemnity basis. Had Mr Vien accepted the offer of 8 May 2018, this application would have been entirely unnecessary and no costs incurred.
The making of costs offers is a matter to be taken into account under s 117(2A) of the Act. The imprudent refusal of a reasonable offer of settlement is a matter that can justify an award of indemnity costs. Given the amount of the costs and the time it was made, I consider the offer was imprudently refused so as to justify an order for indemnity costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 July 2018.
Legal associate:
Date: 9 July 2018
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