Catchwords: FAMILY LAW – Application to re-open after judgment delivered and final orders made – purported s.79A application – dispute regarding documents jointly produced in a joint tender bundle in substantive proceedings – functus officio – res judicata – whether costs be paid on an indemnity, solicitor/client or party/party basis – assessment of costs.
The wife’s Application in a Case filed on 16 November 2017 is dismissed.
The wife pay the husband’s costs in the sum of $95,014.84 in respect of the proceedings, the husband’s Application in a Case filed 27 July 2017 and his opposition to the wife’s Application in a Case filed 16 November 2017, within 3 months’ of today’s date.
The husband’s Application in a Case filed on 27 July 2017 is, otherwise, dismissed.
The matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Chong & Ha (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY
SYC 2468 of…
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.
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Details
AGLC
Chong and Ha (No.2) [2018] FCCA 320
Case
[2018] FCCA 320
Decision Date
CaseChat Overview and Summary
In *Chong and Ha (No.2)*, Judge Kemp of the Federal Circuit Court of Australia considered applications relating to costs following an earlier judgment that declared the parties were in a de facto relationship for over five years and made declarations regarding the husband's substantial contributions. The court also made orders concerning the transfer of property and the discharge of a mortgage. The husband subsequently filed an application seeking indemnity costs and alternative costs orders, while the wife also filed an application in a case.
The primary legal issue before the court was whether to grant the husband's application for costs, specifically on an indemnity basis, and to determine the quantum of those costs. The court also had to consider the wife's application, which was ultimately dismissed. The court was required to assess the conduct of the parties in relation to the proceedings and the costs applications to determine the appropriate cost orders.
Judge Kemp dismissed the wife's application. In relation to the husband's application for costs, the court noted that the wife had not made an application for costs within the specified timeframe following the initial judgment. The court found that the husband's application for costs was made in accordance with the original orders. The court ordered the wife to pay the husband's costs in the sum of $95,014.84 within three months. The husband's application for costs was otherwise dismissed, and the matter was removed from the active pending cases list.
Orders
Orders of the court
1.
The wife’s Application in a Case filed on 16 November 2017 is dismissed.
2.
The wife pay the husband’s costs in the sum of $95,014.84 in respect of the proceedings, the husband’s Application in a Case filed 27 July 2017 and his opposition to the wife’s Application in a Case filed 16 November 2017, within 3 months’ of today’s date.
3.
The husband’s Application in a Case filed on 27 July 2017 is, otherwise, dismissed.
4.
The matter is, otherwise, removed from the active pending cases list.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 30 June 2017, judgment was delivered by this Court (“the judgment”) and the following orders (“the orders”) and declarations were made: (1)A declaration pursuant to s.90RD of the Family Law Act 1975 (“the Act”) that the parties were in a de facto relationship between June 2006 and February 2012 and that such a relationship existed for a period of at least 5 years 8 months.(2)A declaration that the husband made substantial contributions of a kind referred to in s.90SM(4)(a) and s.90SM(4)(b) of the Act.(3)That within 42 days from the date of these orders, the wife will do all acts and things and execute all documents necessary to transfer to the husband, at the expense of the husband, the whole of the wife’s right, title and interest in the property situate and known as Property A in the State of New South Wales, being the whole of the land contained in folio identifier …(“the Property A property”), subject to the encumbrance thereon.(4)That simultaneously with order 3, the parties will do all acts and things and the husband will pay all sums of money to discharge the joint mortgage secured over the Property A property or refinance the said mortgage into his sole name.(5)That other than as is specifically provided for in these orders, each of the parties are solely entitled, to the exclusion of the other, to all items of personal and real property in the their respective possession or of which they are the registered proprietor as at the date of these orders, including but not limited to all or any money standing to the credit of each of the parties in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate and any superannuation entitlements.(6)That in default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these orders, a Registrar of the Federal Circuit Court of Australia at Sydney be appointed pursuant to s.106A of the Act to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders.(7)If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.(8)The matter is, otherwise, removed from the active pending cases list. The terms of the judgment are included in these reasons as if fully set out herein and were received as Exhibit “Court 1”. The husband in compliance with order 7 as referred to above then filed an Application in a Case on 27 July 2017, which was made returnable on 13 September 2017, in which he sought the following orders:(1)That within 21 days of orders being made, the respondent pay the costs of the applicant on an indemnity basis in the sum of $102,216.55, being the costs paid by the applicant in relation to the proceedings to date.(2)In the alternative to order 1 hereof, that within 21 days of orders being made, the respondent pay the applicant’s costs in relation to the proceedings to date, as agreed or assessed in accordance with Part 19 of the Family Law Rules 20014.(3)That within 21 days of orders being made, the respondent pay the costs of the applicant in connection with this costs application in the sum of $3,833.00.