Kuek v Wade (No 2)
[2025] FedCFamC2G 1654
•15 October 2025
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 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).
The Applicant contends that “it is clear” from various aspects of the Judgment that:
(a)the two bases that founded the Judicial Registrar’s Order were erroneous; and
(b)the Applicant led the Judicial Registrar into error by falsely claiming in her affidavits that the 2022/23 Judgment Debts had been paid.
I do not accept the Applicant’s characterisation of the Judgment. As I have indicated throughout the Judgment, given the nature of the Extension and Review Application, I was not required to form a concluded view about either of the matters referred to by the Applicant. The highest that I expressed my opinions on the issues of validity of the bankruptcy notice and question of whether the 2022/23 Judgment Debts had been that “there is considerable merit in the Respondent’s contentions about those matters”.[3]
[3] Judgment at [139].
In the context of this application for costs, it is neither necessary nor appropriate[4] for me to resolve the disputed questions of fact that were unresolved by the Judgment. I am not satisfied that the Applicant’s criticisms of the conduct of the Respondent in the litigation constitute a sufficient basis for a departure of the usual rule as to costs.
[4] Compare Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Quin [1997] 186 CLR 622, 625.
The Respondent seeks the “short form amount” of costs prescribed by the 2021 GFL Rules. Those rules were replaced by the 2025 GFL Rules, with effect on and from 1 September 2025. The 2025 GFL Rules are expressed to apply to a proceeding to which the Rules apply “other than a proceeding to which the Bankruptcy Act 1966 (Cth) applies”.
The proceeding before the court is a proceeding to which the Bankruptcy Act applies, because it is a proceeding for orders setting aside the Bankruptcy Notice pursuant to s 41 of the Bankruptcy Act. Accordingly, the 2025 GFL Rules with respect to costs do not have application to it.
Rule 13.01 of the Bankruptcy Rules provides that subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies, is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 (Cth) unless the Court otherwise orders. Division 13.02 of the Bankruptcy Rules makes provision for a “short form bills of costs”. The Division makes provisions in relation to the costs that may be charged by a legal practitioner for a creditor for work done in relation to a petition against the estate of a debtor on the basis of an act of bankruptcy specified in paragraph 40(1)(g) of the Bankruptcy Act. The short form provisions do not have application to either an application to set aside a bankruptcy notice or for a review of the decision of a Registrar in relation to such an application.
Neither the 2021 GFL Rules, which is the basis of the claim for costs in the sum of $13,097.29, nor the 2025 GFL Rules, have application to the costs of these proceedings.
In the circumstances, I shall order that 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.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate: MC
Dated: 15 October 2025
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