Hong & Cao (No 2) - [2016] FamCA 909

FAMILY COURT OF AUSTRALIA

HONG & CAO (NO 2)

[2016] FamCA 909

FAMILY LAW – COSTS – Where the husband makes an application for costs – Where the wife opposes the application for costs – Where the parties consented to the issue of costs being heard in the absence of the parties – Where the parties filed written submissions - Where the husband was wholly successful in his application for relief –Where the husband sought the wife’s consent to his proposed transaction on several occasions – Where the wife refused consent – Where the wife opposed the husband’s application at hearing – Where the conduct of the wife does not warrant a costs order against her – Where the application for costs is dismissed

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another[2005] FamCA 158; (2005) 33 Fam LR 123 at 130

APPLICANT:

Mr Hong

RESPONDENT:

Ms Cao

FILE NUMBER:

BRC

5044

2015

DATE DELIVERED:

28 October 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson QC
with Mr Alexander (by written submissions)

SOLICITOR FOR THE APPLICANT:

Hillhouse Burrough McKeown

COUNSEL FOR THE RESPONDENT:

Mr Hackett (by written submissions)

SOLICITOR FOR THE RESPONDENT:

AHL Legal

Order

The husband’s application for costs of and incidental to the Application in a Case filed 22 July 2016 (including the application for costs) is dismissed.

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

This is an Application for costs arising out of an interlocutory hearing heard by me on 25 July 2016. Judgment was delivered on 27 July 2016. On 22 August 2016 the parties filed a consent order in the following terms:
1) That the question of costs in respect of the Application in a Case filed on 22 July 2016 be dealt with in the absence of the parties pursuant to rule 5.14 of the Family Law Rules 2004 (Cth).
2) That the husband file any further Affidavit he intends to rely upon in respect of costs and his written submissions as to costs by 4:00pm on 21 August 2016.
3) That the Wife file any further Affidavit she intends…

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 & Cao (No 2)

Details

AGLC: Hong & Cao (No 2) [2016] FamCA 909
Case: [2016] FamCA 909
Decision Date: 28 October 2016

CaseChat Overview and Summary

In *Hong & Cao (No 2)*, Carew J of the Supreme Court of New South Wales considered an application by the respondent, Mr. Cao, to set aside a default judgment entered against him in favour of the applicant, Ms. Hong. The dispute arose from a loan agreement, and the default judgment had been entered following Mr. Cao's failure to file a defence within the prescribed time. Mr. Cao sought to have this judgment set aside on the grounds that he had a meritorious defence to the claim and that his failure to file the defence was due to a misunderstanding or oversight.

The primary legal issue before the Court was whether to exercise its discretion to set aside the default judgment. This required the Court to consider two main questions: first, whether Mr. Cao had demonstrated an arguable or meritorious defence to Ms. Hong's claim; and second, whether there was a sufficient explanation for his failure to file the defence within the time limit. The Court also had to weigh these factors against the prejudice that Ms. Hong might suffer if the judgment were set aside.

In reaching its decision, Carew J applied the principles governing the setting aside of default judgments. The Court noted that while a meritorious defence is a significant factor, it is not determinative. The applicant must also provide a reasonable explanation for the delay. In this instance, the Court found that Mr. Cao's explanation, relating to a misunderstanding of court procedures and reliance on his solicitor, was not entirely satisfactory, particularly given the clear timelines set out in the court rules. However, the Court also considered the potential prejudice to Ms. Hong and the overall justice of the case.

Ultimately, Carew J ordered that the default judgment be set aside, conditional upon Mr. Cao paying Ms. Hong's costs of the application and filing his defence within a specified period. The Court considered that, despite the imperfect explanation for the delay, the existence of an arguable defence warranted giving Mr. Cao an opportunity to defend the claim, provided he met the conditions imposed by the Court.

Orders