Fong & Guo (No. 2)

[2021] FamCA 489

FAMILY COURT OF AUSTRALIA

Fong & Guo (No. 2) [2021] FamCA 489

File number(s):	SYC 1341 of 2020
Judgment of:	REES J
Date of judgment:	8 July 2021
Catchwords:	FAMILY LAW – COSTS
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Number of paragraphs:	16
Date of last submission/s:	24 June 2021
In Chambers:	8 July 2021
Place:	Sydney
Solicitor for the Applicant:	Juris Cor Legal
Counsel for the Respondent:	Ms McMahon
Solicitor for the Respondent:	Bud Cham & Associates Lawyers

ORDERS

SYC 1341 of 2020
BETWEEN:	MS FONG Applicant
AND:	MR GUO Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	8 JULY 2021

THE COURT ORDERS:

1.That the respondent pay to the applicant the sum of $2,000 by way of costs within one month of the date of these orders.

2.That the application for costs filed 10 May 2021 otherwise be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fong & Guo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. On 13 April 2021, I delivered reasons and made orders dismissing an application by Mr Guo (“the respondent”) for security for costs in relation to proceedings arising out of an asserted de facto relationship between him and Ms Fong (“the applicant”).

2. The applicant now seeks an order that the respondent pay her costs of those proceedings on an indemnity basis or, in the alternate “on an ordinary basis” which I infer to mean on a party and party basis.

3. That application is opposed by the respondent.

4. The parties have filed written submissions and agree to the matter’s being determined in chambers.

5. The factors to be considered are set out in the Family Law Act 1975 (Cth) s 117(2A) which is reproduced below:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   a.   the financial circumstances of each of the parties to the proceedings;

   b.   whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   c.   the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   d.   whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   e.   whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f.    whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g.   such other matters as the court considers relevant.

6. The applicant earns $380 per week and has minimal assets. The respondent deposed that he has no income and assets exceeding $1,000,000, primarily real estate in Hong Kong.

7. Neither party was in receipt of legal aid.

8. As to the respondent’s conduct, it is submitted on behalf of the applicant that he failed to “prosecute his cases with due dispatch”. The proceedings were commenced in the Federal Circuit Court by the applicant. The respondent’s application for security for costs was filed on 26 May 2020 accompanied by an affidavit of the respondent. On 20 July 2020, an amended application was filed. On 28 September 2020, the proceedings were transferred to the Family Court. On 15 December 2020 directions were made by a registrar for the filing of affidavits by 18 March 2021. On 1 March 2021, the matter was listed for hearing before me on 12 April 2021. The hearing proceeded on that day.

9. On 27 May 2020, a registrar reserved the applicant’s costs in the sum of $1,000, noting that the respondent had been served with the applicant’s application on 18 April 2020 but had not served his response, financial statement and affidavit on the applicant to allow the matter to proceed on that day.

10. The applicant asserts that costs in the sum of $1,000 were reserved on 20 July 2020 but there is no record of such an event in the court file.

11. Costs in the sum of $1,000 were again reserved on 22 July 2020, presumably because the respondent had filed his amended response only two days before.

12. I infer that on each occasion the amount of the reserved costs was the amount nominated by the applicant.

13. I am not satisfied that the conduct of the respondent has delayed the final hearing of this matter which has not yet been allocated to a judge’s docket.

14. While the respondent’s application was dismissed, that decision was finely balanced as is demonstrated by the concluding paragraphs of the judgment where I stated:

    Having regard to all of the matters specified in Rule 19.05, I am not satisfied that the applicant’s case has been demonstrated to be so devoid of merit that she should be prevented, by the making of an order for security for costs, from pursuing it.

15. I am not aware of any relevant offers of settlement.

16. Accordingly, I am satisfied that the respondent should pay $2,000 being the costs thrown away on 27 May 2020 and 22 July 2020 but the application for costs is otherwise dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       8 July 2021