Hong and Cao (No. 2) - [2018] FamCA 41

FAMILY COURT OF AUSTRALIA

HONG & CAO (NO. 2)

[2018] FamCA 41

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to reopen – Application granted.

Family Law Act 1975 (Cth)

EB v CT (No 2) [2008] QSC 306
Reid v Brett [2005] VSC 18
Summitt v Summitt and Ors (Re-Opening) [2009] FamCA 365

APPLICANT:

Mr Hong

RESPONDENT:

Ms Cao

FILE NUMBER:

BRC

5044

2015

DATE DELIVERED:

2 February 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson QC

SOLICITOR FOR THE APPLICANT:

Hillhouse Burrough McKeown

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Accuro Legal (Sydney)

ORDERS

IT IS ORDERED THAT

Mr Hong has leave to re-open the application by which he seeks an order staying the proceedings commenced by Ms Cao on 4 June 2015.

AND IT IS FURTHER ORDERED THAT

The question of costs arising out of or incidental to Mr Hong’s Application in a Case filed 14 November 2017 is reserved for determination.
In the event either party seeks an order that the other pay the costs of and incidental to Mr Hong’s Application in a Case filed 14 November 2017:
(a)each party has leave to file one affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavit is filed within fourteen (14) days of the date of this Order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall, within a further seven (7) days thereafter, file and serve any further written submissions, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.

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 Hong & Cao (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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5044 of 2015

Mr Hong

Applicant

And

Ms Cao

Respondent

REASONS FOR JUDGMENT

By Application in a Case filed 14 November 2017, Mr Hong sought leave to…

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 Hong and Cao (No. 2)

Details

AGLC: Hong and Cao (No. 2) [2018] FamCA 41
Case: [2018] FamCA 41
Decision Date: 2 February 2018

CaseChat Overview and Summary

In *Hong and Cao (No. 2)*, Hogan J considered an application by Mr Hong for leave to re-open an earlier application seeking a stay of proceedings commenced by Ms Cao.

The primary legal issue before the court was whether Mr Hong should be granted leave to re-open his application for a stay. The court also addressed the question of costs arising from Mr Hong's application filed on 14 November 2017, reserving determination of this issue.

Hogan J granted Mr Hong leave to re-open his application for a stay. The court then set out a detailed timetable and procedure for the parties to make submissions and file evidence concerning the costs of Mr Hong's application, indicating that these costs would be considered in Chambers.

Orders

Orders of the court

IT IS ORDERED THAT

Mr Hong has leave to re-open the application by which he seeks an order staying the proceedings commenced by Ms Cao on 4 June 2015.

AND IT IS FURTHER ORDERED THAT

The question of costs arising out of or incidental to Mr Hong’s Application in a Case filed 14 November 2017 is reserved for determination.

In the event either party seeks an order that the other pay the costs of and incidental to Mr Hong’s Application in a Case filed 14 November 2017:

(a) each party has leave to file one affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavit is filed within fourteen (14) days of the date of this Order; and

(b) any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

(c) the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and

(d) the party seeking an order for costs shall, within a further seven (7) days thereafter, file and serve any further written submissions, strictly in reply to the submissions served by the party against whom an order for costs is sought,

and any such application for costs shall be considered in Chambers.

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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