JUDGE:	Cosgrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 June 2025
CASE MAY BE CITED AS:	Ma v Qin (No 2)
MEDIUM NEUTRAL CITATION:	[2025] VSC 364

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COSTS — Court has broad discretion — Whether costs to be awarded on a standard or indemnity basis — Whether interlocutory appeal was a hopeless case — Where interlocutory appeal delayed the progression of the matter — Held, insufficient basis to award indemnity costs — Whether costs to be taxed immediately — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1 — Whether demands of justice require a departure from the ordinary rule — Where there is likely to be a considerable period of time before the final determination of the proceeding — Where interlocutory appeal concerned a discrete question — Held, costs to be taxed immediately.

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APPEARANCES:	Counsel	Solicitors
For the appellants	Mr D McAloon	B2B Lawyers
For the respondent	Mr T Clarke	Norton Rose Fulbright

HIS HONOUR:

Introduction

I handed down my reasons for judgment in this matter on 6 June 2025 (“the principal reasons”).[1] At that time, I set a timetable for the parties to confer about the form of order which would give effect to those reasons and the question of costs. If the parties could not agree, they were to file submissions setting out the orders sought and the reasons therefor. I now address those matters. This judgment uses the same abbreviations and terminology as the principal reasons.
[1]Ma v Qin [2025] VSC 326.

The parties agreed upon the orders giving effect to the principal reasons, namely that:

(a) the appeal be dismissed; and

(b) by 4:00pm on 20 June 2025, the first and second defendants produce to the plaintiff the documents referred to in the order of the Honourable Associate Justice Barrett made on 6 March 2025.

To account for the timing of the delivery of this judgment, I will extend the deadline for the production of documents to 4:00pm on 25 June 2025.

On the question of costs, Ma (who succeeded in the appeal) seeks orders that:

(a) the first and second defendants pay the costs of and incidental to the appeal, such costs to be taxed on an indemnity basis in default of agreement; and

(b) pursuant to r 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“Rules”), the costs to be paid to the plaintiff be taxed immediately.

The Qin defendants seek an order that they pay the plaintiff’s costs of and incidental to the appeal, such costs to be taxed on a standard basis in default of agreement.

Indemnity costs
Plaintiff’s submissions

Ma seeks indemnity costs on two bases.

First, Ma says the appeal was bound to fail because the notice of…

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 MA v Qin (No 2)

Details

AGLC: MA v Qin (No 2) [2025] VSC 364
Case: [2025] VSC 364
Decision Date: 20 June 2025

CaseChat Overview and Summary

The case of MA v Qin (No 2) involved the appellant, MA, and the respondent, Qin. The dispute arose from a family law matter where MA sought to recover costs on both a standard and indemnity basis. The proceedings took place in the Family Court of Australia. The central issue before the court was whether the costs incurred by MA should be awarded on a standard or indemnity basis, particularly in relation to an interlocutory appeal which MA considered to be hopeless.

The court needed to determine if the interlocutory appeal was indeed hopeless and if it had delayed the progression of the matter, which could justify awarding indemnity costs. Additionally, the court had to consider whether the demands of justice required a departure from the ordinary rule regarding the timing of costs taxation, given the likely considerable delay before the final determination of the proceeding. The interlocutory appeal was specifically focused on a discrete question, and the court had to weigh this against the potential for unjust enrichment if costs were not taxed immediately.

The court concluded that there was insufficient basis to award indemnity costs, as the interlocutory appeal was not considered hopeless. The court found that while the demands of justice might ordinarily require a delay in costs taxation, the interlocutory appeal was a discrete matter and did not justify a significant delay. Therefore, the court decided that the costs should be taxed immediately, in line with the Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.20.1. This decision ensured that the court's ruling on the costs would be timely and proportionate to the nature of the interlocutory appeal.

Orders