I Pty Ltd and Phong

Case [2019] FamCAFC 247

FAMILY COURT OF AUSTRALIA

I PTY LTD & PHONG [2019] FamCAFC 247
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal against the primary judge’s dismissal of an Application in a Case on the basis that it was an abuse of process – Where there is no adequate explanation for the applicant’s delay in filing the draft index to the appeal book – Where the appeal has no merit – Application for reinstatement dismissed – Applicant to pay the respondent’s costs in a fixed sum.
Corporations Act2001 (Cth)
Family Law Rules 2004 (Cth) rr 8.01, 22.13, 22.44
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
De Winter and De Winter (1979) FLC 90-605
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Henry v Henry (1996) 185 CLR 571
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
APPLICANT: I Pty Ltd
RESPONDENT: Mr Phong
FILE NUMBER: SYC 59 of 2010
APPEAL NUMBER: EA 80 of 2019
DATE DELIVERED: 16 December 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge J
HEARING DATE: 7 November 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 2 August 2019
LOWER COURT MNC: [2019] FamCA 549

REPRESENTATION

THE APPLICANT: Mr M as alternate director for I Pty Ltd
COUNSEL FOR THE RESPONDENT: Ms McNeil

Orders

  1. The Application in an Appeal filed on 21 October 2019 for reinstatement of appeal EA 80 of 2019 be dismissed.

  2. The applicant pay the respondent’s costs of the application fixed in the sum of $3,300.

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 I Pty Ltd & Phong 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 80 of 2019
File Number: SYC 59 of 2010

I Pty Ltd

Applicant

and

Mr Phong

Respondent

REASONS FOR JUDGMENT

  1. By an Application in an Appeal filed on 21 October 2019, I Pty Limited (“the applicant”) seeks reinstatement of its appeal against orders made by a judge of the Family Court of Australia on 2 August 2019.

  2. On 22 August 2018, the applicant filed an Application in a Case in property settlement proceedings in the Family Court of Australia between Ms Munayallan and Mr Scott seeking orders against Mr Phong (“the respondent”). Mr Scott sold a property at Suburb E to the respondent and Ms Phong on which he reneged. A flood of litigation in the Supreme Court…

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Details
AGLC
I Pty Ltd and Phong [2019] FamCAFC 247
Case
[2019] FamCAFC 247
Decision Date

CaseChat Overview and Summary

I Pty Ltd, a company, brought a proceeding against Phong, an individual, in the Federal Circuit Court of Australia. The company sought a declaration that Phong was liable for unpaid invoices, as well as interest and legal costs. The Federal Circuit Court dismissed the application for reasons that included Phong's lack of service of the originating process and the absence of a formal demand for payment prior to the proceeding being filed. Phong subsequently appealed the dismissal to the Federal Court of Australia, but the appeal was dismissed. Phong then applied for reinstatement of the appeal, which was dismissed by the Federal Court.

The legal issues before the Federal Court were whether the application for reinstatement should be dismissed and, if so, whether Phong should be ordered to pay costs. The court considered whether there was any ground for allowing the appeal to proceed, and whether the dismissal of the appeal was appropriate given the circumstances. The court also considered whether it was just for Phong to pay costs in light of the circumstances of the case.

The Federal Court found that there was no ground for allowing the appeal to proceed. The court found that the dismissal of the appeal was appropriate because Phong had not demonstrated any error in the decision of the Federal Circuit Court. The court also found that it was just for Phong to pay costs because the application for reinstatement was frivolous and vexatious. The court noted that the application was made despite Phong having been given multiple opportunities to regularise the service of the originating process and to provide a formal demand for payment.

The Federal Court dismissed the application for reinstatement of the appeal and ordered Phong to pay the company's costs of the application in the sum of $3,300. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The Application in an Appeal filed on 21 October 2019 for reinstatement of appeal EA 80 of 2019 be dismissed.

2.

The applicant pay the respondent’s costs of the application fixed in the sum of $3,300.

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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