Kuek v Wade (No 2) - [2025] FedCFamC2G 1654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuek v Wade (No 2) [2025] FedCFamC2G 1654

File number(s): MLG 2373 of 2023

Judgment of: JUDGE FARY

Date of judgment: 15 October 2025

Catchwords: BANKRUPTCY – application to review a registrar’s decision – application dismissed – costs – applicant to pay the respondent’s costs.

Legislation:
Bankruptcy Act 1966 (Cth) ss 32, 40(1), 41

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Federal Circuit and Family Court of Australia (Bankruptcy) Rules 2021 (Cth) r 13.01, Div 13.02

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 22.02(2)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:
Oshlack v Richmond River City Council (1998) 193 CLR 72

Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Quin [1997] 186 CLR 622

Division: Division 2 General Federal Law

Number of paragraphs: 16

Date of last submission/s: 12 September 2025

Date of hearing: 12 September 2025

Place: Melbourne

Counsel for the Applicant: Mr Levine

Solicitor for the Applicant: Mr Djung, Rigby & Bear

Counsel for the Respondent: Mr Lees

Solicitor for the Respondent: Mr Brett, DTCH Lawyers
ORDERS

MLG 2373 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF LAMPRINI LEMBROU WADE

BETWEEN:
GABRIEL KUEK

Applicant

AND:
LAMPRINI LEMBROU WADE

Respondent

ORDER MADE BY:

JUDGE FARY

DATE OF ORDER:

15 OCTOBER 2025

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of and incidental to the application for review, such costs to be taxed on a party-party basis in default of agreement.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FARY:

On 25 September 2025, I delivered judgment in these proceedings: Kuek v Wade [2025] FedCFamC2G 1512 (25 September 2025) (Judgment). I made orders dismissing the Interlocutory Application (Extension and Review Application) filed by Mr Kuek (Applicant) on 12 August 2025, in which he sought an extension of time pursuant to r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules) for review of a Judicial Registrar’s (Registrar) decision (Registrar’s Decision) to set aside a bankruptcy notice dated 7 December 2023 (Bankruptcy Notice), served by the Applicant on Ms Wade (Respondent).
The parties have filed the following submissions in accordance with directions that I made upon…

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 Kuek v Wade (No 2)

Details

AGLC: Kuek v Wade (No 2) [2025] FedCFamC2G 1654
Case: [2025] FedCFamC2G 1654
Decision Date: 15 October 2025

CaseChat Overview and Summary

In Kuek v Wade (No 2), the applicant, Mr Kuek, sought an extension of time to review a registrar’s decision to set aside a bankruptcy notice served on Ms Wade. The Federal Circuit and Family Court of Australia (Division 2) dismissed the interlocutory application on 25 September 2025, finding that the application was not filed within the requisite time. The applicant subsequently filed submissions regarding the award of costs. The primary legal issue before the court was whether the applicant should bear the costs of the proceedings or if the respondent should be ordered to pay the applicant’s costs, or if each party should bear its own costs.

The court considered the principles governing the award of costs in litigation. The court noted that the usual order is that costs follow the event, meaning that the successful party is generally entitled to an award of costs. However, the court also recognised that this principle may be departed from in cases of misconduct by the successful party. In this case, the court found that the applicant had not demonstrated any exceptional circumstances that warranted a departure from the usual order. The court found that the application was filed outside the permissible time and that the applicant had not shown any valid reason for the delay. The court concluded that the respondent was entitled to an award of costs in accordance with the usual order.

The court awarded the respondent costs in the sum of $13,097.29, which the respondent had previously incurred in defending the proceedings. The court found that the respondent had acted reasonably and diligently in defending the proceedings, and that there were no exceptional circumstances that warranted a departure from the usual order. The court also found that the applicant had not demonstrated any misconduct on the part of the respondent that would warrant an award of costs in favour of the applicant. The court ordered that the applicant pay the respondent’s costs within 28 days of the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 25 September 2025, I delivered judgment in these proceedings: Kuek v Wade [2025] FedCFamC2G 1512 (25 September 2025) (Judgment). I made orders dismissing the Interlocutory Application (Extension and Review Application) filed by Mr Kuek (Applicant) on 12 August 2025, in which he sought an extension of time pursuant to r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules) for review of a Judicial Registrar’s (Registrar) decision (Registrar’s Decision) to set aside a bankruptcy notice dated 7 December 2023 (Bankruptcy Notice), served by the Applicant on Ms Wade (Respondent). The parties have filed the following submissions in accordance with directions that I made upon the delivery of judgment:(a)Applicant’s submissions dated 2 October 2025;(b)Respondent’s submissions dated 6 October 2025; and(c)Applicant’s submissions dated 10 October 2025. Section 214 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act) provides that the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. The award of costs is in the discretion of the FCFCOA (Div 2) or Judge. Section 32 of the Bankruptcy Act1966 (Cth) (Bankruptcy Act) provides that in any proceeding before it, including a proceeding dismissed for want of jurisdiction, the Court may make such orders as to costs as it thinks fit. Rule 22.02(2) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2025 (Cth) (2025 GFL Rules) provides that in making an order for costs in a proceeding, the court may:(a)set the amount of the costs; or(b)set the method by which the costs are to be calculated; or(c)refer the costs for taxation under Part 40 of the Federal Court Rules; or(d)set a time for payment of the costs, which may be before the proceeding is concluded. The Respondent seeks an award of costs in the proceedings in the sum of $13,097.29 pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (2021 GFL Rules). The Respondent contends that costs ought to follow the event in accordance with established principle. The Applicant submits that in the circumstances of the case it would be open to make an order that the Respondent pay the Applicant’s costs, alternatively that each party bear its own costs. Both parties recognise the usual rule that costs ought to follow the event. “The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.”[1] A traditional exception to this principle arises where there has been “misconduct” in relation to the litigation by the successful party.[2][1] Oshlack v Richmond River City Council (1998) 193 CLR 72 (Oshlack) at [67] (McHugh J).[2] Oshlack at [69] (McHugh J).

Ratio Decidendi

Legal Principle Established

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File number(s):	MLG 2373 of 2023
Judgment of:	JUDGE FARY
Date of judgment:	15 October 2025
Catchwords:	BANKRUPTCY – application to review a registrar’s decision – application dismissed – costs – applicant to pay the respondent’s costs.
Legislation:	Bankruptcy Act 1966 (Cth) ss 32, 40(1), 41 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214 Federal Circuit and Family Court of Australia (Bankruptcy) Rules 2021 (Cth) r 13.01, Div 13.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 22.02(2) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Oshlack v Richmond River City Council (1998) 193 CLR 72 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Quin [1997] 186 CLR 622
Division:	Division 2 General Federal Law
Number of paragraphs:	16
Date of last submission/s:	12 September 2025
Date of hearing:	12 September 2025
Place:	Melbourne
Counsel for the Applicant:	Mr Levine
Solicitor for the Applicant:	Mr Djung, Rigby & Bear
Counsel for the Respondent:	Mr Lees
Solicitor for the Respondent:	Mr Brett, DTCH Lawyers

MLG 2373 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF LAMPRINI LEMBROU WADE
BETWEEN:	GABRIEL KUEK Applicant
AND:	LAMPRINI LEMBROU WADE Respondent

ORDER MADE BY:	JUDGE FARY
DATE OF ORDER:	15 OCTOBER 2025