Lao and Lao - [2018] FamCA 492

FAMILY COURT OF AUSTRALIA

LAO & LAO

[2018] FamCA 492

FAMILY LAW – COSTS – Where application for costs made by the Applicant wife – Where the husband failed to provide full and frank disclosure in the substantive proceedings – Where the husband’s failure led to the matter being protracted and caused the wife to incur greater costs – Where the circumstances justify an order for the husband pay a portion of the wife’s legal fees – Order made for husband to pay 25 per cent of the wife’s costs as agreed or assessed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins and Collins (1985) FLC 91-603
D & D (Costs) (No. 2) (2010) FLC 93-435
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kelly & Kelly(1981) 7 Fam LR 762
Lao & Lao & Anor [2017] FamCA 917
Luadaka v Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms A Lao

RESPONDENT:

Mr B Lao

FILE NUMBER:

PAC

4992

2014

DATE DELIVERED:

29 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Diamond Conway Lawyers

SOLICITOR FOR THE RESPONDENT:

Saba El-Hanania Lawyers

Orders

That the husband pay to the wife or as she may otherwise direct in writing 25 per cent of the wife’s costs on a party/party basis of and incidental to completed property proceedings being such sum as is agreed within one month from this date or, otherwise, as assessed.

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 Lao & Lao 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 PARRAMATTA

FILE NUMBER: PAC 4992 of 2014

Ms A Lao

Applicant

And

Mr B Lao

Respondent

REASONS FOR JUDGMENT

The application for determination is an Application for costs filed by the wife on 12 December 2017 following the delivery of Reasons for Judgment and final orders as to property adjustment, child maintenance and spouse maintenance on 14 November 2017.
These Reasons assume familiarity with the Reasons for Judgment delivered on 14 November 2017: Lao & Lao & Anor [2017] FamCA 917.
Orders made on 14 November 2017 were as follows:
(1) That the property of the…

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.

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Details

AGLC: Lao and Lao [2018] FamCA 492
Case: [2018] FamCA 492
Decision Date: 29 June 2018

CaseChat Overview and Summary

The parties in this matter were husband and wife, and the dispute concerned property proceedings. The decision was made by Foster J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was the assessment of costs in relation to completed property proceedings between the parties.

Foster J ordered that the husband pay to the wife 25 per cent of her costs on a party/party basis. These costs were to be in respect of and incidental to the completed property proceedings. The sum was to be agreed between the parties within one month of the date of the order, or otherwise assessed.

Orders

Orders of the court

That the husband pay to the wife or as she may otherwise direct in writing 25 per cent of the wife’s costs on a party/party basis of and incidental to completed property proceedings being such sum as is agreed within one month from this date or, otherwise, as assessed.

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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