GUO and LIANG

[2024] FCWA 72

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GUO and LIANG [2024] FCWA 72

CORAM: O'BRIEN J

HEARD: 12 JANUARY 2024 and 13 MARCH 2024

DELIVERED : 12 APRIL 2024

FILE NO/S: 2497 of 2012

BETWEEN: MR GUO

First Applicant

AND

MR O IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF MR GUO

Second Applicant

AND

MS LIANG

First Respondent

AND

NIGEL SUN

Second Respondent

AND

BEATRICE SUN

Third Respondent

AND

C PTY LTD

Fourth Respondent

Catchwords:

PROPERTY - Interlocutory dispute as to whether funds presently the subject of an injunction should be released and, if so, to whom - Where the funds form part of the subject matter of litigation in the Supreme Court - Where the disposition of that litigation will determine the matter presently agitated - Turns on its own facts

COSTS - Where the second, third and fourth respondents were joined as parties to the substantive proceedings when the wife sought relief against them - Where all such applications and responses have now been dismissed - Where those parties seek indemnity costs against the wife and her solicitor - Costs awarded against the wife in a fixed sum of $100,000

Legislation:

Bankruptcy Act 1966 (Cth)
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Self-Represented Lititgant
Second Applicant	:	Mr A
First Respondent	:	Self-Represented Lititgant
Second Respondent	:	Self-Represented Lititgant
Third Respondent	:	Self-Represented Lititgant
Fourth Respondent	:	Self-Represented Lititgant
Law Firm B	:	Mr B

Solicitors:

First Applicant	:	Self-Represented Lititgant
Second Applicant	:	Law Firm C
First Respondent	:	Self-Represented Lititgant
Second Respondent	:	Self-Represented Lititgant
Third Respondent	:	Self-Represented Lititgant
Fourth Respondent	:	Self-Represented Lititgant
Law Firm B	:	Direct Brief

Case(s) referred to in decision(s):

[2018] FCWA 37

[2018] WASC 199

[2020] WASC 175

[2021] FCWA 13

[2021] WASC 265

[2021] WASCA 196

[2022] WASC 122

[2023] FCWA 201

[2023] FCWA 79

[2023] WASC 319

[2023] WASCA 65

Anison & Anison [2019] FamCAFC 108

Bant & Clayton (Costs) [2016] 56 Fam LR 31

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119

Braithwaite & Braithwaite [2007] FamCA 468

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155

Madin & Palis (Costs) (2016) 55 Fam LR 59

McAlpin and McAlpin (1993) FLC 92-411

Nada & Nettle (Costs) (2014) FLC 93-612

Neil v Nott (1994) 121 ALR 148

Parke & The Estate of the Late A Parke (2016) FLC 93-748

Prantage & Prantage (2013) FLC 93-544

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Guo & Liang has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1The parties to these long-running proceedings participated in an interlocutory hearing [in] January 2024 at which two issues were agitated; first, whether funds presently held in [an Australian bank] ("[the bank]") account number #9792 ("the holding account") should now be disbursed (and, if so, to whom) and second, whether an order for costs should be made (and, if so, whether that order should be directed to the wife or her solicitors). After hearing submissions, I reserved my decision. In circumstances explained below, I received further submissions at a hearing [in] March 2024.

2While the relevant background is of course familiar to the parties, it is necessary to summarise it to give context to what follows.

The parties

3The parenting proceedings between [Mr Guo], ("the husband") and [Ms Liang], ("the wife") (together, "the primary parties") commenced in May 2012. The wife commenced financial proceedings on 13 August 2012 by filing an Amended Form 1A Response joining various third parties.[1] Of the parties who were initially joined, the husband's brother [Nigel] ("Nigel"), Nigel's wife [Beatrice] ("Beatrice") and C Pty Ltd ("C Pty Ltd"),[2] a company controlled by Nigel and Beatrice, remain. The husband's trustee in Bankruptcy, [Mr O] ("the Trustee"), also remains as a party, notwithstanding that the husband has been discharged from bankruptcy, as assets vested in the Trustee have not yet been divested. The parties or various combinations of them, have been involved in litigation in the Supreme Court of Western Australia, the Court of Appeal, and the Federal Court of Australia.

Short summary of relevant litigation

[1] Pursuant to r 97 of the Family Court Rules 2021 (WA).

[2] C Pty Ltd was represented in proceedings in this Court by Nigel, as permitted by r 139(2) of the Family Court Rules 2021 (WA).

4The parties were involved in the purchase, development and sale of various parcels of real estate.[3]

[3] As set out in detail in [2021] FCWA 13 ("the January 2021 judgment"), which I incorporate in these reasons.

5Those activities included the purchase and development of [the first] property [in] Como [("the first Como property")]. The property was initially purchased in February 2007 in the names of the wife, Nigel and Beatrice as tenants in common in equal shares. It was then subdivided into four units; [Unit A] was registered in the name of Beatrice, [Unit B] was registered in the name of Nigel, [Unit C] was registered in the name of the wife, and [Unit D] was registered in the names of the wife, Nigel and Beatrice as tenants in common in equal shares. Unit A was sold in December 2009, Unit B was sold in November 2012 and Unit D was sold in April 2010. The wife still owns Unit C and receives rental income from that property.

6Beatrice, the husband and the husband's uncle, [John], purchased [a property in] Como [("the second Como property")] in 2010 as tenants in common with 50 percent, 25 percent and 25 percent shares, respectively. That property was subdivided into two lots; [Unit E] and [Unit F]. Unit E was registered in Beatrice's name and Unit F was registered in the names of the husband and John as tenants in common in equal shares. Unit E was sold in 2015. Unit F was sold in 2011.[4]

[4] [2018] WASC 199, [43]-[45].

7In the circumstances set out in the January 2021 judgment, in August 2012 the wife brought an urgent application in this Court seeking injunctive relief to preserve monies which she alleged to be the proceeds of the sale of Unit F.[5] An order was made requiring those funds ("the escrow funds") to be paid into the holding account in the joint names of the primary parties, and all parties were restrained by interim injunction from dealing with them.[6]

[5] Wife's Form 2 Application filed on 10 August 2012.

[6] Orders 2 and 3(a) made on 14 August 2012.

8When certain loan repayments were not made, the bank commenced proceedings in the Supreme Court.[7] In August 2014 the bank obtained default judgment against the husband, Nigel and Beatrice in a sum exceeding $1.2 million. The wife chose to defend the action. [In] August 2014, [a Family Court Judge] made an order staying the proceedings in this Court "in so far as they relate to financial matters… pending the resolution of [those proceedings]".

[7] "the bank litigation".

9There were further hearings in this Court before a Family Court Judge, as detailed in the January 2021 judgment. In May 2015 the wife commenced proceedings in the Supreme Court regarding the property developments, including [both of the Como] properties, and naming Nigel and Beatrice as defendants.[8] Nigel and Beatrice counterclaimed against the primary parties, and other parties.

[8] Supreme Court proceedings or "the partnership proceedings".

10Those proceedings progressed to a trial before [Supreme Court Judge A]. In a judgment delivered [in] June 2018,[9] His Honour noted that the principal issue for determination by him was "the terms of the agreement or agreements under which the property developments proceeded" and any liability of any party consequent on that.[10] It was common ground that once his Honour had determined those matters, a taking of accounts would be required f or various properties purchased, developed and sold under the partnership agreements. The properties [in Como] were included in the order for a taking of accounts.[11]

[9] [2018] WASC 199.

[10] Ibid [12].

[11] Ibid [133].

11The taking of accounts then proceeded, and the report of the relevant Registrar was adopted[12] by order of [Supreme Court Judge B] [in] May 2020.[13] At the time of a further hearing before me on [in] November 2020, those proceedings and subsequent appeals launched by the wife had not been completed. [In] January 2021 I made the following order in relation to the escrow funds:

Until further order, the Husband, the Wife and the Second Applicant, Mr O in his capacity as Trustee of the Bankrupt Estate of the Husband are restrained by injunction from dealing with the funds presently held in the bank account number **9792 established pursuant to the order contained in paragraph 1 of the orders made on 14 August 2012, other than to give effect to any orders made in [Supreme Court proceedings] consequential upon the taking of account ordered in those proceedings.[14]

[12] Except item 363 which is not relevant to the proceedings in this Court.

[13] [2020] WASC 175.

[14] [2021] FCWA 13, Order 10.

12That order has not been subsequently varied or discharged. Because of subsequent developments, however, its terms are no longer apposite.

13The financial proceedings in this Court between the primary parties were adjourned generally to be relisted on the conclusion of the then pending Supreme Court litigation. All substantive applications and responses filed by either of the primary parties seeking substantive relief against Nigel, Beatrice or C Pty Ltd were dismissed, other than an application by the wife for damages for what she alleged to be a breach of an undertaking given in November 2012, and costs.[15]

[15] [2021] FCWA 13.

14The wife's application for leave to appeal against the adoption of the registrar's report was dismissed [in] November 2021.[16] Supreme Court Judge B then adopted a report of the independent expert consequent on the findings of the registrar by order made [in] December 2021; the wife sought to appeal that order.[17] That appeal was subsequently discontinued [in] July 2023. The bank litigation had been held in abeyance pending the adoption of accounts in the partnership proceedings; that litigation then resumed.

[16] [2021] WASCA 196.

[17] CACV 50/2022.

15The financial proceedings were relisted in this Court at the request of Nigel, based on the (inaccurate) assertion that the Supreme Court proceedings had been concluded. Those proceedings, at least as they stood at the relevant time, were summarised in detail in a judgment of this Court delivered [in] April 2023,[18] which I incorporate in these reasons. I do not propose to repeat what is set out there.

[18] [2023] FCWA 79.

16In circumstances outlined in that judgment the wife's defence to the bank claim was struck out, and her application for leave to appeal that outcome was dismissed. [19]

[19] Ibid.

17Proceedings were then commenced against the wife by Nigel, Beatrice and C Pty Ltd by the filing of a creditors petition in the Federal Court.[20] C Pty Ltd also commenced further proceedings in the Supreme Court[21] against the wife and others [in] June 2023, in relation to a caveat lodged over Unit C.[22]

[20] [District Court proceedings].

[21] [Further Supreme Court proceedings].

[22] See [2023] WASC 319.

18Various orders were made in this Court to compel the wife to articulate and particularise her only remaining application seeking damages against the third parties.[23] She did not comply with those orders. Her application in so far as it sought any form of relief against the third parties was dismissed by an order made [in] July 2023.[24]

[23] That is, the damages claim.

[24] Made by me in Chambers.

19Importantly for present purposes, in a judgment published [in] April 2022,[25] Supreme Court Judge B had observed that the substantive relief sought by the parties to that point was no more than the taking of an account. None had sought the orders required to effect a winding up of the partnerships. His Honour observed that the orders proposed by each party to that point sought "outcomes that cannot be achieved within the present proceedings", and that to resolve the disputes finally, further litigation would be required.[26]

[25] [2022] WASC 122.

[26] Ibid [15].

20The wife commenced that further litigation in the Supreme Court [in] December 2023 seeking a "winding up of the partnership properties of all the relevant parties".[27] The Statement of Claim filed by the wife is in evidence.[28] Relevantly for present purposes:

(a)the wife pleads the existence and terms of what she calls "the [Como Properties] Partnership #2", formed for the acquisition and development of the second Como property as earlier described, with the primary parties, Nigel, Beatrice and the husband's cousin [Nhan], being the partners;[29]

(b)she pleads that, after the payment of various expenses, the agreement provided for the division of any remaining balance in the proportions of 12.5 percent to each of the primary parties, and 25 percent to each of Nigel, Beatrice and Nhan;[30]

(c)she relies on the findings of fact made by Supreme Court Judge A in his 2018 judgment[31];[32]

(d)she recites the declaration made by His Honour on 28 June 2018 that the said partnership was dissolved as from the date on which she commenced certain proceedings, and the process of the taking of accounts already described;[33]

(e)she relies on observations made by Supreme Court Judge B[34];and

(f)she seeks the appointment of a receiver to wind up the affairs of the partnership.[35]

[27] "The winding up proceedings".

[28] Wife's Writ of Summons, including the endorsed Statement of Claim, the winding up proceedings, filed with the Supreme Court [in] December 2023 and annexed to the Wife's Affidavit filed in December 2023 at 52 ('Wife's Statement of Claim').

[29] Ibid [64].

[30] Ibid [65].

[31] [2018] WASC 199, [114].

[32] Wife's Statement of Claim at [65].

[33] Ibid [67]-[68].

[34] [2021] WASC 265, [44]-[45]; Wife's Statement of Claim at [70].

[35] Wife's Statement of Claim at [20].

21The winding up proceedings are, for obvious reasons, not yet completed. It is common ground that the funds in the holding account are sourced from the proceeds of sale of Unit F. Thus, the disbursement of those funds is a matter in issue in the winding up proceedings.

The costs claim – overview

22Apart from their asserted interest in the escrow funds, the interests of Nigel, Beatrice and C Pty Ltd are now unaffected by the ongoing proceedings between the primary parties in this Court. All outstanding applications seeking relief against them have been dismissed, and at the hearing listed of the Court's own motion [in] March 2024 to clarify the point, they consented to the dismissal of their substantive response insofar as it sought relief against the primary parties, other than the relief dealt with in this judgment.[36] They now seek to recover their costs incurred in these proceedings on an indemnity basis.

[36] The third parties reserved the right to apply further for damages arising from alleged breaches by the wife of various undertakings, but acknowledged such application might not be brought.

23They seek in the alternative an order that to the extent those costs were incurred during periods when the wife was represented by Law Firm B,[37] they be paid by that firm. They contend that the firm has aided the wife in conduct of the litigation which they describe as "unreasonable, improper, malicious, vexatious, misleading and an abuse of process".[38] They note that the firm has represented the wife in relevant Supreme Court proceedings and describe the conduct of its principal Mr L as "grossly negligent and incompetent with the purpose to mislead this Court".[39]

[37] For ease of reference, "the firm".

[38] As stated in the Written Submissions of the Second, Third and Fourth Respondents, filed on 5 January 2024.

[39] Ibid.

24They allege further that the firm has continued to act, and to commence various proceedings on behalf of the wife, in circumstances where Mr L has been "patently aware since August 2014 that [the wife] had no money, could not pay any of the cost [sic] awarded against her, and has continued to represent her pro bono while consistently contending to positions contrary to judicial findings".[40] They note that costs orders totalling in excess of $394,000 have been entered and taxed in various Supreme Court proceedings and assert that further costs orders entered but not yet taxed will exceed $200,000. Against that background, the pending creditors petition, and a finding of the Court of Appeal that the wife has "consistently failed to pay costs orders against her" and would "likely not take steps to pay any costs ordered against her" in the proceedings then under consideration,[41] they contend that they have no reasonable prospect of recovering costs from the wife and must look to the firm.

[40] Ibid.

[41] WASCA 65, [35].

25The wife opposes the making of any costs order against her, while purporting to seek to reserve the right to "issue third-party proceedings seeking an indemnity for myself from one or more of my [s]olicitors, [c]ounsel and [l]egal [a]dvisors".[42] She asserts that the third parties have not complied with an order made [in] September 2023[43] which required them to file and serve particulars of their claim for indemnity costs, to include a clear statement of the amount of costs sought, particulars of when the costs sought were incurred, particulars of to whom relevant legal fees were paid, and a clear statement identifying each person, legal practitioner or law firm against whom an order was sought. A document purporting to comply with that order was filed [in] October 2023.

The relief presently sought on an interlocutory basis - the escrow funds

[42] As stated in her Written Submissions filed on 11 January 2024.

[43] [2023] FCWA 201.

26C Pty Ltd seeks the release of the escrow funds to it. In the alternative, C Pty Ltd, Nigel and Beatrice seek that the funds be released to each of them in equal shares.[44]

[44] Transcript of Proceedings from 12 January 2024 at 7.

27The husband's Trustee in Bankruptcy seeks the release of the escrow funds to him.[45]

[45] Second Applicant's Form 2 Application filed 19 October 2023.

28The wife says that the escrow funds are a "joint partnership account" and should be preserved pending determination of the winding up proceedings.[46]

[46] Transcript of Proceedings from 12 January 2024 at 31.

29The husband sought that what he described as the "status quo" established by orders made by a magistrate [in] July 2013, be maintained. The orders for the establishment of the escrow account, and the initial injunction in that regard, were made [in] August 2012. The husband did not advance any submissions directed to the present dispute as to the disposition of the escrow funds.

The relief presently sought – costs

30C Pty Ltd, Nigel and Beatrice were represented by Law Firm A from August 2012 to February 2020. They have been self-represented since. In particulars filed [in] October 2023, they defined their costs claim to seek:

(a)costs against the wife in the sum of $261,400.88, comprised of fees apparently paid to [Law Firm A] in the period from August 2012 to February 2020 in the sum of $231,700.88, and fees paid to [the accountants] towards the preparation of a report ordered earlier in the proceedings, in the sum of $29,700; and

(b)"as an alternative, in the event the wife is unable to pay", costs against the firm or Mr L personally in the sum of $119,444.60, being the fees apparently paid to [Law Firm A] from 1 October 2013 to 24 February 2020, the firm having represented the wife since 26 September 2013.

31In submissions filed on 5 January 2024 that position was amended. They now sought indemnity costs against the firm in the sum of $119,440.60 and "the balance of any indemnity cost" from the wife.[47] Thus, as finally presented, the claim for costs against the firm was not conditional on the wife's inability to pay, but stood alone. Relief against Mr L personally was no longer sought.

[47] Submissions of the of the Second, Third and Fourth Respondents filed on 5 January 2024 at [110].

32Accordingly, in the end the third parties pursued two separate claims for costs:

(a)Indemnity costs against the firm in the sum of $119,440.60, being costs allegedly incurred in the period referred to above; and

(b)Indemnity costs against the wife in the sum of $141,960.28 being costs allegedly incurred in the period when the firm did not represent the wife.

33That is the claim as finally articulated, and I will address it accordingly. As the third parties are self-represented, I will also briefly consider the claim as previously articulated in the alternative. In that way, any lack of clarity in their articulated position will not disadvantage them.[48] To do so also acknowledges that, notwithstanding the way the claim is articulated, the primary liability for any costs order will generally lie with a party, with such costs only to be paid by that party's solicitor if circumstances justify that. Logically, the wife's potential liability for costs falls to be considered first.

[48] See Neil v Nott (1994) 121 ALR 148.

34The wife initially sought[49] the discharge or stay of various orders made [in] June 2023 "so the question of whether there is an agreeable basis of what Costs Orders are being made individually against all [her] Solicitors and in particular Law Firm B and all affected Solicitors to be served with the [application for costs] or as amended" (sic) and otherwise liberty to make submissions. Just what was meant by that is not entirely clear, particularly in circumstances where the possibility of costs against the firm was already raised.[50]

[49] In a Form 2A Response prepared on her behalf by the firm and filed on 27 June 2023.

[50] The wife also sought the discharge of an order made on 26 July 2013 which would require the husband "and all third parties residing at [Property A]" to vacate the property and "handover the keys" to her. No evidence or submissions were directed to that application, which was incompetent in any event.

35In subsequent written submissions, the wife indicated her opposition to the making of costs orders against her and foreshadowed her intention to seek leave to commence third-party proceedings. Of course, claims for costs against the wife have been squarely on foot for some years. If she intended to commence any "third party proceedings" (whatever that may be taken to mean in the current context) against any of her legal advisors, and most particularly those who represented her before the firm, she has had ample opportunity to do so.

36The husband and his Trustee understandably did not seek to be heard in relation to the costs application.

37The firm filed written submissions on 11 January 2024 and was represented at the hearing [in] January 2024. It properly acknowledged that the Court has power to make a costs order against a non-party.[51] The firm submitted that the application for costs should be dismissed, and that C Pty Ltd, Nigel and Beatrice should pay its costs of responding to it.

Evidence and written submissions relied upon

[51] Pursuant to the Family Law Act 1975 (Cth) s 117(2).

38The husband relied on his affidavit filed on 27 October 2023.

39The wife relied on her affidavits filed on 27 June 2023, 24 November 2023 and 22 December 2023. She also relied on written submissions filed on 20 September 2023 and 11 January 2024, and her Form 13 Financial Statement filed on 30 October 2023.

40The husband's Trustee relied on his affidavit filed on 19 October 2023.

41C Pty Ltd, Nigel and Beatrice relied on an affidavit of Nigel filed on 8 May 2023, a statement of claim filed on 27 October 2023, further affidavits of Nigel filed on 27 October 2023 and 17 November 2023, and written submissions filed on 5 January 2024.

The first issue – the escrow funds

The position advanced by C Pty Ltd, Nigel and Beatrice

42These parties noted that the "genesis" of the escrow funds was an agreement reached with the Public Trustee (which was then administering the affairs of the husband) as to the withdrawal of a caveat held over the property at Unit F. It was claimed at the relevant time that the husband owed C Pty Ltd $275,000 pursuant to a contract for the construction of the dwelling on the property. While further claims were made by Nigel and Beatrice to the effect that they had advanced funds towards the husband's share of the purchase price of the property, it is apparently by reference to the alleged contract that they adopt their primary position that the funds should be paid to C Pty Ltd.

43They refer further to orders made by consent in these proceedings [in] December 2012 pursuant to which the amount of $550,000 then held in the holding account was to be dealt with as follows:

(a)by retaining $50,000 to pay for the costs of any Single Expert Witness; and

(b)by dividing the balance remaining into three equal parts;

(i)with one such part to be paid to C Pty Ltd, Nigel and Beatrice;

(ii)with the second such part being required to discharge the mortgage then held over Unit C; and

(iii)with the third such part to be divided equally between the primary parties.[52]

[52] Orders made 5 December 2012, Order 14.

44C Pty Ltd, Nigel and Beatrice say that they "were to be paid one third of the balance (approximately $183,333) after the [primary parties] had withdrawn $189,000 to discharge their personal bank loan".[53] Presumably the "personal bank loan" referred to is the loan then secured over Unit C and specifically referred to in the relevant order, albeit the terms of that order are misstated in the submissions.

[53] Form 1A Response filed on 6 March 2015.

45The order of 5 December 2012, to which C Pty Ltd, Nigel and Beatrice consented, was consistent to a degree with their current secondary submission that the escrow funds should be divided between them in equal proportions, but inconsistent with their current primary submission that the funds should simply be paid to C Pty Ltd. No explanation for that inconsistency was proffered.

46What their submissions do not say is that the operation of the relevant consent order made on 5 December 2012 was stayed until further order by orders made [in] July 2013. That stay was not subsequently lifted. For reasons set out in a judgment published [in] March 2018[54] I declined to permit the primary parties the further access they sought to the escrow funds in the context of the parenting proceedings on foot, as to do so would ignore the possible interest of the other parties in those funds.[55] Further, and conclusively, [in] January 2021 the relevant consent order made [in] December 2012 was expressly discharged.[56]

[54] [2018] FCWA 37.

[55] Ibid [83]-[84].

[56] [2021] FCWA 13.

47The references made by C Pty Ltd, Nigel and Beatrice to what they perceive to be their entitlements pursuant to the orders made on 5 December 2012 are misconceived and irrelevant for present purposes.

48The relevant injunction for present purposes is contained in paragraph 10 of the orders made [in] January 2021. That injunction restrains the primary parties and the husband's Trustee from dealing with the escrow funds "other than to give effect to any orders made in the Supreme Court proceedings consequential upon the taking of account ordered in those proceedings". The clear intent of that injunction was that the escrow funds would not be released to any party other than in accordance with determinations made by the Supreme Court in the partnership proceedings. It is notable that many of the arguments currently agitated were heard and determined in that context at that time.

The position advanced by the husband's Trustee in Bankruptcy

49The Trustee points out that the husband's property vested in him [in] June 2018, upon his appointment.[57] He submits that money held in a bank account in joint names is, as a matter of law, a debt which the bank owes both parties jointly. He asserts that accordingly he is entitled to the whole of the escrow funds, which are held in the joint names of the husband and the wife.

[57] Pursuant to Bankruptcy Act 1966 (Cth) s 58, as cited in the Trustee's Submissions filed on 12 January 2024.

50He refers further to observations of Supreme Court Judge A in his judgment delivered [in] June 2018[58] to the effect that in that litigation "all parties accepted that, for the purpose of these proceedings, the interests of [the wife] and [the husband] should be construed as joint interests regardless of in whose name transactions may have occurred or properties were registered".[59] He refers also to a factual finding in the same judgment that half of the sale proceeds of Unit F were "deposited into a joint bank account [#9792] in the names of [the wife] and [the husband]".[60] By that, His Honour referred to the holding account.

[58] [2018] WASC 199.

[59] Ibid [10].

[60] Ibid [45].

51Put simply, the Trustee asserts that on that basis the funds should be immediately released to him. If that is done, he did not cavil with the proposition that an order might properly be made restraining him from dealing with the funds in any way for a defined period, to allow time for any further application any party might bring.

52Counsel for the Trustee appropriately acknowledged that there was no evidence before me as to the nature or extent of claims made by any person or entity[61] against the husband's bankrupt estate. Accordingly, I have no information as to the likely disposition of the escrow funds by the Trustee if they are received by him, other than the appropriate assurance that they would be dealt with in accordance with his trustee obligations.

[61] Including those who are parties to these proceedings.

53Counsel also acknowledged that, irrespective of the legal ownership of the escrow funds, they might still properly be the subject of a claim by other parties in the context of the partnership dispute.[62] That is a matter of clear significance.

The position advanced by the wife

[62] Transcript of Proceedings from 12 January 2024 at [25].

54The wife submits that, until the winding up proceedings recently commenced by her in the Supreme Court have been concluded, "any proceedings in this Court should be stayed because, to this date, all partnership assets remain undistributed and retain their partnership status".[63]

The position of the husband

[63] Wife's Submissions filed on 11 January 2024.

55 The position of the husband was, with no disrespect to him, not clearly articulated. Given the matters already set out, and again with no disrespect, that does not present an obstacle to the determination of the present interlocutory dispute.

Disposition

56As already noted, the injunction made [in] January 2021, for the reasons set out in the relevant judgment, was clearly directed to the preservation of the escrow funds until their appropriate disposition was determined by the partnership proceedings in the Supreme Court. That disposition simply could not be determined in this Court, let alone on the papers, while the Supreme Court proceedings remained unresolved.

57All that has relevantly changed is that the Supreme Court proceedings then on foot have been completed – but that only goes so far. The completion of those proceedings did not, as earlier noted, in fact resolve the partnership disputes as anticipated by the parties; the winding up proceedings commenced in 2023[64] are intended to do that.

[64] [The winding up proceedings].

58For present purposes, therefore, the fundamental position has not changed – the partnership dispute in the Supreme Court remains unresolved, the determination of the interests of the primary parties[65] in partnership property must await that resolution, and the substantive proceedings in this Court for alteration of those, and any other, property interests cannot proceed.

[65] Or the Trustee.

59The propositions advanced by C Pty Ltd, Nigel and Beatrice as to the immediate disbursement of the escrow funds may be dealt with briefly. There is no proper basis upon which the funds could simply be immediately paid to C Pty Ltd. The secondary proposition that the funds should be divided equally between C Pty Ltd, Nigel and Beatrice is not supported by the evidence, in circumstances where the partnership dispute remains unresolved.

60While there is some attraction in the proposition advanced on behalf of the Trustee, that only goes so far. As was tacitly conceded, even if the escrow funds are paid now into the husband's bankrupt estate, claims against those funds by the other parties to the partnership dispute would remain open to be pursued. The distribution of the husband's bankrupt estate, including any payments to other creditors not identified in the evidence before me, would necessarily be delayed pending the resolution of those claims. In a real sense, the immediate disbursement of the escrow funds would achieve no practical outcome.

61It may also fairly be noted that at the hearing of interlocutory matters [in] November 2020, counsel then appearing for the Trustee resisted the proposition that the funds the subject of the injunction should be distributed to any party on an interlocutory basis, pending the determination of the Supreme Court partnership proceedings then on foot.[66] The position presently advanced by the Trustee is inconsistent with that earlier expressed position. No explanation for that was advanced.

[66] [2021] FCWA 13, [179].

62The appropriate course is for the current injunction to be varied to secure the funds pending the determination of the winding up proceedings. I do not propose to make orders disbursing the escrow funds to any party on an interlocutory basis.

63At the hearing before me, the Trustee reserved his position in relation to possible participation in the winding up proceedings, to which at that point he was not a party. If the Trustee becomes a party to the winding up proceedings, it may well be appropriate for the relevant injunction in this Court to be discharged upon the making of an appropriate injunction (or the giving of appropriate binding undertakings) in the Supreme Court, securing the escrow funds. The parties may wish to consider whether such a course would, albeit to a modest degree, simplify the steps required once the winding up proceedings are concluded.

The second issue – the application for costs

The legal principles – overview

64In relation to any application for costs there are two primary matters for determination. The first question is whether there are circumstances that justify an order for costs. Only if that question is answered in the affirmative does the further question of what order for costs is just arise.

65Subsection 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that, subject to s 117(2), each party to the proceedings shall bear his or her own costs.

66Subsection 117(2) provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may, subject to s 117(2A), make such orders as to costs as it considers just. Subsection 117(2A) provides as follows:

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.

67The discretion conferred by s 117(2) is broad. The factors set out in s 117(2A) are not to be read in a restrictive way and any one of those factors may in appropriate circumstances be the sole basis for an order for costs. That said, the relevant matters in the subsection must be taken into account and balanced in order to determine whether an order for costs is justified.

68An order for costs is compensatory, not punitive.[67] Impecuniosity is not of itself a bar to a costs order.[68]

[67] Braithwaite & Braithwaite [2007] FamCA 468.

[68] Lenova & Lenova (Costs) [2011] FamCAFC 141, [12]; Nada &Nettle (Costs) (2014) FLC 93-612.

69If an order for costs is to be made, the principle that such costs should be calculated on a party-party basis should not be "lightly departed from" unless circumstances of an exceptional kind exist.[69]

The legal principles – costs against lawyers

[69] Kohan and Kohan (1993) FLC 92-340; Madin & Palis (Costs) (2016) 55 Fam LR 59, [23].

70The Court clearly has power to make an order for costs against third parties, including lawyers.[70] The discretion to make such an order must be exercised sparingly and with great caution.[71] Where costs are sought against a lawyer representing a party in proceedings, what amounts to unreasonable conduct on the part of that lawyer:

must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.[72]

[70] Family Court Rules 2021 (WA) r 333.

[71] See McAlpin and McAlpin (1993) FLC 92-411 and Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155.

[72] Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155, [44].

71In assessing the conduct of proceedings by a lawyer, matters peculiar to the individual case must clearly be considered. Issues of factual and legal complexity present in a particular case necessarily inform that assessment; struggles or errors in the conduct of complex litigation may in some circumstances be more readily excused than struggles or errors in the conduct of what should be a simple case.

Legislated considerations which are not relevant in the present case

72None of the parties are in receipt of a grant of legal aid. The substantive proceedings were not necessitated by the failure of any party to comply with previous orders. I was not informed of any written offer of settlement.

73The matters requiring consideration are therefore:

(a)the financial circumstances of the parties;[73]

(b)the conduct of the parties in relation to the proceedings generally;[74]

(c)whether any party has been wholly unsuccessful in the relevant sense;[75] and

(d)such other matters as the court considers relevant.[76]

The financial circumstances of the parties

[73] Family Law Act 1975 (Cth) s 117(2A)(a).

[74] Sub-s (c).

[75] Sub-s (e).

[76] Sub-s (g).

74For obvious reasons, the financial circumstances of the husband are irrelevant for present purposes.

75The wife's most recent Form 13 Financial Statement was filed on 30 October 2023. She said that she is employed full-time as [a financial officer], at a salary of approximately $65,000 per annum, and has rental income of approximately $30,000 per annum. She also receives family tax benefits. Her claimed expenses consume almost all her income. She says that she owns property to a total value of $1.928 million, attributing a value of $800,000 each of the properties at Unit C and [Property A] which are registered in her sole name, as well as a 25 percent share in [Property B] and [Property C] each share worth approximately $150,000.[77] She has superannuation worth approximately $95,000.

[77] Property B was purchased in March 2010 by the husband and wife as joint tenants and Nigel and Beatrice as joint tenants, which each couple having an equal share in the property as tenants in common. The property was later subdivided into two lots; Property B and Property C. Those properties were registered in the names of the husband and wife as joint tenants and Nigel and Beatrice as joint tenants, and with each couple having an equal share in the property as tenants in common: See [2018] WASC 199, [36]-[38].

76The wife says she has liabilities of $860,858 including liabilities under the various partnership loans, $12,000 owing on her credit card, $260,000 in a personal loan and $200,000 in legal fees. Given that the partnership loans remain the subject of Supreme Court proceedings, it is unclear as to what her total liabilities (including pursuant to costs orders made in the Supreme Court) might be. Her liabilities are even more unclear given the primary parties redrew on two bank loans to purchase Property B. Those loans are not mentioned in her Form 13. I note that the financial statement was prepared by Mr L on her behalf.

77Of course, the full extent of the wife's property interests and liabilities has yet to be established and no finding can presently be made as to the accuracy of her evidence. Self-evidently, the outcome of the winding up proceedings will impact there, as will the eventual determination of the claims of the primary parties in this Court.

78There is no current or recent evidence as to the financial circumstances of C Pty Ltd, Nigel or Beatrice.

79A consideration of the financial circumstances of the parties does not of itself justify an order for costs in this case, nor does it mitigate against such an order.

80The third parties submit otherwise that a consideration of the wife's financial circumstances supports the making of a costs order against the firm, by reference to their articulated concerns as to their ability to recover any costs awarded against the wife. For the reasons just set out, that submission is not supported by the evidence, at least at this time.

Whether any party was wholly unsuccessful, and the conduct of the litigation by the relevant parties

81For reasons which will become apparent, it is convenient to summarise facts relevant to these two legislated considerations, together.

82The wife initially sought final orders in the following terms:[78]

8.The Applicant and First Respondent ("Spouse Parties") such sums as found owing to the Spouse Parties and transfer to them such properties as will be specified after disclosure has been completed.

9.The matrimonial asset pool of the Spouse Parties be divided between them in such a manner to be advised after disclosure has been completed.

10.The Applicant pay to the First Respondent spousal maintenance in such sum and in such manner to be advised after disclosure has been completed.

11.Such further or other orders as the Court may deem appropriate.

12.The Applicant, and the Second, Third, Fourth and/or Fifth respondent pay the First Respondent's costs of and incidental to these proceedings.[79]

[78] Errors as they appear in the original.

[79] Wife's Amended Form 1A Response filed on 13 August 2012 at 3-4.

83While it may be inferred that the wife in fact sought orders for the non-spouse parties to pay the spouse parties monies owing to them, and transfer various properties to them, on any consideration the relief sought was hopelessly non-specific.

84There were then various interim and interlocutory applications and responses filed by the various parties, as summarised in this judgment and the January 2021 judgment. As noted in that judgment, there followed "largely futile efforts by the Court to impose some structure on the proceedings, not least by compelling the parties to clearly identify and then focus on relevant issues".[80]

[80] [2021] FCWA 13, [3].

85On 6 March 2015, C Pty Ltd, Nigel and Beatrice together filed a Form 1A Response. They sought final orders:

(a)requiring the primary parties to release to them money held in the bank account in their joint names and referred to earlier in these reasons;[81]

(b)requiring the delivery up to the bank of the property at Property B;

(c)requiring the primary parties to transfer the property at Property C to Nigel;

(d)for the sale of properties at Unit C and Property A, with orders for the disbursement of proceeds;

(e)requiring the primary parties to pay the outstanding debts of $129,000 and $189,384;[82] and

(f)requiring the wife to pay an amount equivalent to the rental income she received from Unit C from the commencement of proceedings to the conclusion of proceedings, to be further particularised.

[81] Account *9792.

[82] To discharge the primary parties' line of credit loan #7118.

86C Pty Ltd, Nigel and Beatrice also sought an order that the wife pay them damages pursuant to undertakings given by her on 14 August 2012, 6 November 2012 and 24 July 2013 and "any further undertakings filed by [her]".[83] They otherwise sought that all previous orders affecting them be discharged, that all applications relating to them be dismissed, and that the wife pay their costs.[84]

[83] Form 1A Response filed 6 March 2015 at [7]; [2021] FCWA 13, [64].

[84] Form 1A Response filed 6 March 2015 at [8]-[10].

87They took further steps to progress the determination of the various disputes in this Court, before the wife commenced proceedings in the Supreme Court [in] May 2015 directed towards the determination of the partnership issues. Those steps included seeking the appointment of an accountant to "investigate and determine" various issues relating to the property developments; those issues were then the subject of the Supreme Court proceedings.[85] They consented to orders in this Court which were directed towards valuations, which were again overtaken by the Supreme Court proceedings. In June 2014 they sought leave to appoint a separate expert witness to critique the opinion provided by the Single Expert Witness.

[85] [2021] FCWA 13, [84].

88The Supreme Court proceedings then progressed as earlier described. The relief sought by the wife against the various third parties in this Court remained vague. [In] June 2020, I made orders requiring her to file and serve particulars of her proposed claims for substantive relief, setting out with precision the final orders to be sought against the various third parties, and particulars setting out the legal and factual basis of each such claim. The document filed by the wife on 31 July 2020 in response to that order fell well short of meeting those requirements.

89In the January 2021 judgment, I expressed the following view, which remains relevant now:

In my view, the failure of the wife to properly particularise her asserted substantive claims against the third parties, which commenced in August 2012, contributed in no small measure to the problems which have bedevilled the litigation ever since.

It has long been understood that, while property proceedings between primary parties are generally conducted with the legal and factual issues being readily identified by the common knowledge of the parties and the application of s 79(4) and s 75(2) of the Family Law Act 1975 (Cth) ("the Act"), proceedings in this court involving claims against third parties are different. Those parties are entitled at a point as close as possible to the commencement of proceedings in which they become involved to have the legal and factual bases of any relief sought against them clearly articulated, so that they know the case they must face. Rule 6.03 simply reflects that long established position.

Nevertheless, by the filing of her Minute on 31 July 2020 as subsequently clarified at the hearing before me [in] November 2020, more than eight years after joining the third parties to the proceedings, the wife finally articulated what it is that she seeks by way of substantive relief against them in this court.

In short, she seeks damages against them for what she alleges to be their breach of the November 2012 undertaking. Her counsel expressly eschewed any other claim (other than in relation to costs) against Nigel, Beatrice and C Pty Ltd, whether based in the Act or otherwise.

That is not, of course, to say that the damages claim finally identified has been in any sense particularised or quantified. As will appear later in these reasons, I intend to address that with some rigour.[86]

Wholly unsuccessful?

[86] Ibid [148]-[152].

90I dismissed all outstanding applications and responses by the wife which purported to seek relief against C Pty Ltd, Nigel and Beatrice other than for damages for breach of undertakings and costs.[87] Subsequently, as a result of the failure of the wife to comply with further orders designed to compel her to properly articulate her claims,[88] those further outstanding applications and responses purporting to seek damages were dismissed [in] July 2023.

[87] Ibid [208].

[88] Orders made 6 June 2023.

91As noted earlier in these reasons, [in] March 2024 C Pty Ltd, Nigel and Beatrice formally confirmed that they did not seek to pursue the substantive relief set out in their Form 1A Response as subsequently informally amended; their outstanding applications were accordingly dismissed.[89]

[89] Subject only to the reservation of their right to bring a fresh application seeking damages for alleged breaches of undertakings by the wife.

92It is well settled that s 117(2A)(e) refers to a situation where proceedings as a whole have been unsuccessful; for example, where an application without merit has been dismissed.[90]

[90] Anison & Anison [2019] FamCAFC 108.

93It does not apply to a case where a Notice of Discontinuance is filed, as the matter has not been heard and determined.[91]

[91] Bant & Clayton (Costs) [2016] 56 Fam LR 31; Parke & The Estate of the Late A Parke (2016) FLC 93-748.

94The wife's applications for substantive relief against the third parties were dismissed in the circumstances already outlined. She has been wholly unsuccessful in the relevant sense.

95While the third parties' outstanding substantive responses have also been dismissed as a matter of form, in substance they have been discontinued. The third parties have not been wholly unsuccessful in the relevant sense. That said, as will appear, their pursuit of relief in this Court and subsequent withdrawal is still a matter to be taken into account in considering their conduct as litigants.

96It is important to bear in mind that the terms of s 117(2A)(c) refer to the conduct of the parties as litigants, rather than their personal conduct more broadly.[92] The relevant conduct is as a litigant in the proceedings in this Court only; any consideration of the conduct of the Supreme Court litigation, as sought by the third parties, can only be pursuant to s 117(2A)(g) and even then only as a part of the general factual matrix informing the exercise of discretion.

[92] Prantage & Prantage (2013) FLC 93-544, 87-210 [104]-[105], [109] per Thackray and Ryan JJ.

97The conduct of the proceedings by and on behalf of the wife in this Court has been both dilatory and inept. It has contributed, as earlier found, to both appalling delay and significant cost to all concerned.

98That said, the third parties do not occupy the high ground that they claim as comfortably as they suggest.

99To the extent that the third parties might now suggest that all partnership matters should always have been conducted in other courts, and that they were consistently reluctant participants in litigation in this Court, that suggestion would be inaccurate. They actively sought substantive relief as earlier outlined. Indeed, in an affidavit filed on 12 August 2014, Nigel opposed the wife's proposition that the proceedings should be adjourned so that the partnership proceedings could be commenced in the Supreme Court, albeit he did so at least in part based on an expressed belief that the matter would be concluded more expeditiously if dealt with solely in this Court.[93] The third parties continued to press for relief in this Court, and determination of partnership disputes more appropriately heard elsewhere, by an interlocutory application filed in March 2015, and subsequently.[94]

[93] [2021] FCWA 13, [93].

[94] Ibid [106]-[107].

100While C Pty Ltd was not a party to the original partnership proceedings, Nigel and Beatrice were. They must share some responsibility for the fact that those proceedings did not actually resolve the relevant disputes, as in the words of Supreme Court Judge B the orders proposed by each party to that point sought "outcomes that cannot be achieved within the present proceedings", and that to resolve the disputes finally, further litigation would be required.[95] While those proceedings were commenced by the wife, and resulted in costs orders being made against her, at no point until very recently did any party pursue the appropriate relief to actually determine their dispute.

[95] [2022] WASC 122, [15].

101Nevertheless, in the required consideration of the conduct of all parties as litigants in this Court, the third parties occupy higher ground than does the wife. The observations already made as to the conduct of the proceedings by and on behalf of the wife need not be repeated. That conduct, together with the fact that she was wholly unsuccessful in the relevant sense, justifies an order for costs.

102That said, I am not persuaded that exceptional circumstances are present, justifying an order for indemnity costs, for all the reasons already set out.

Costs sought against the wife

103The next question is what order for costs is just as between the wife and the third parties.

104The third parties now appear to quantify their claim against the wife as $141,960.28 but that is calculated on an indemnity basis. They have not properly complied with the order for particulars made [in] September 2023. The amount of their claimed costs on a party/party basis cannot be calculated.

105Nevertheless, the prospect of their costs having to be assessed is no doubt as unattractive to the parties as it is to the Court, given the inordinate resources already consumed by ill-considered, ill-defined and ineptly pursued disputes to date.

106The purpose in all courts of rules enabling an order for costs in a specific amount, without formal assessment or taxation is to "avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation".[96]

[96] Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, 162.

107As Murphy J observed in Parke & the Estate of the late A Parke:[97]

If the court is to fix a sum it should be "fixed broadly having regard to the information before the Court" … The process does not "by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place..."[98]

[97] (2016) FLC 93-748.

[98] Ibid 81,944 [130].

108The Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any "scientific or formulaic manner".[99]

[99] Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, [10].

109Doing the best that I can on the information available, and having regard to the matters set out below in relation to the separate costs claim against the firm, I conclude that the wife should pay the costs of the third parties fixed in the sum of $100,000. In the absence of the particulars ordered and noting that the third parties were jointly represented by the same firm at the time the relevant costs were incurred, I apportion those costs between C Pty Ltd, Nigel and Beatrice in equal shares.

The separate costs claim against Law Firm B

110There can be no dispute that the representation of the wife in these proceedings has, for significant periods, been inept.

111My observations in earlier judgments about the largely futile attempts by the Court to "impose some structure on the proceedings, not least by compelling the parties to clearly identify and then focus on relevant issues" and the wife to clearly articulate the relief she sought do not require expansion.[100] It is sufficient to say that those observations were, if anything, understated.

[100] [2021] FCWA 13, [3].

112The third parties made various submissions about the conduct of the proceedings on behalf of the wife which, while not inaccurate, do not inform the present consideration to the extent that they relate to events which occurred after February 2020 – the date from which the third parties were self-represented. For obvious reasons those matters cannot inform a consideration of compensation for costs incurred earlier.

113Similarly, the observations of the third parties in relation to the conduct of proceedings by the firm in the Supreme Court do not properly inform the determination of the present application.

114The failure of the third parties to particularise their costs as ordered is also problematic. While to a degree timing issues can be considered by reference to the materials produced, the identification of costs specifically referable to conduct on the part of the firm is simply not possible.

115To justify an order for costs against a lawyer[101] something more than inept lawyering is required. The additional matters asserted by the third parties over and above ineptitude are not made out. The failings on the part of the firm at various times are also appropriately considered against the background of the factual and legal complexity of the disputes between all parties; those need not be repeated for present purposes. The previous judgments (both in this Court, and in other courts) summarised above speak for themselves.

[101] Or firm of solicitors.

116On balance, and without resiling from my observations as to the representation of the wife, I am not persuaded that an order for costs directed to the firm is justified.

117Had the claim of the third parties remained as earlier described, to seek the whole of their costs against the wife and only resort to a claim against the firm if the wife could not afford to pay, the outcome would not have been different. I would have ordered costs only against the wife in the amount foreshadowed above, noting among other things the significant period for which the third parties have been unrepresented, their own conduct of the proceedings, and their failure to particularise their costs as ordered.

Orders

118Subject to any submissions as to form there will be the following orders:

1.The order contained in paragraph 10 of the orders made [in] January 2021 is discharged.

2.Until further order, the First Applicant, MR GUO ("the husband), the First Respondent, MS LIANG ("the wife), and the Second Applicant, MR O IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF MR GUO are restrained by injunction from dealing with the funds presently held in the bank account number #9792 established pursuant to the order contained in paragraph 1 of the orders made [in] August 2012, other than to give effect to any orders made in the Supreme Court of Western Australia as to the disposition of those funds.

3.The wife must pay the costs of the Fourth Respondent, C PTY LTD, fixed in the sum of $33,334.

4.The wife must pay the costs of the Third Respondent, BEATRICE SUN, fixed in the sum of $33,333.

5.The wife must pay the costs of the Second Respondent, NIGEL SUN, fixed in the sum of $33,333.

6.All outstanding applications by the Second, Third and Fourth Respondents for costs are otherwise dismissed.

7.The costs of the Second Applicant are reserved.

8.All outstanding interim and interlocutory applications are otherwise dismissed.

9.The Second, Third and Fourth Respondents are removed as parties to the proceedings.

10.The substantive proceedings stand adjourned generally, with liberty to the remaining parties to seek a relisting for directions only upon the completion of the winding up proceedings commenced by the wife [in] December 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

12 APRIL 2024