Pen & Vun (No. 2) - [2021] FamCA 442

FAMILY COURT OF AUSTRALIA
Pen & Vun (No. 2) [2021] FamCA 442

File number(s): PAC 3665 of 2018

Judgment of: FOSTER J

Date of judgment: 2 July 2021

Catchwords: FAMILY LAW – COSTS – where application for costs made by the wife after husbands nullity application dismissed– where wife was in receipt of a grant of legal aid – where the husband was wholly unsuccessful in his application – where appropriate to order husband to pay costs on a party/party basis until the grant of legal aid and thereafter on a legal aid rate basis limited to the sum paid by Legal Aid and to be repaid to Legal Aid.

Legislation:
Family Law Act 1975 (Cth) s 117, 1172), 117(2A)

Family Law Rules 2004 (Cth) r 19.18(1)

Cases cited:
Beach Petroleum NL v Johnson (No. 2) (1995) 135 ALR 160

Pen & Vun [2021] FamCA 294

Collins & Collins (1985) FLC 91-603

Greedy & Greedy (1982) FLC 91-250

Hawkins & Roe [2012] FamCAFC 77

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Luadaka & Luadaka (1998) FLC 92-830

Parke & the Estate of the Late A Parke (2016) FLC 93 748

Penfold v Penfold (1980) 144 CLR 311

Number of paragraphs: 28

Date of last submission/s: 10 June 2021

Date of hearing: 8 and 9 April 2021

Place: Parramatta

Solicitor for the Applicant: Mr Sant of Longton Legal

Solicitor for the Respondent: Ms Gok of SS Lawyers Pty Ltd
ORDERS

PAC 3665 of 2018

BETWEEN:
MR VUN
Applicant

AND:
MS PEN
Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:
1.The applicant husband pay the respondent wife’s costs of and incidental to his application for declaration of nullity with such costs:
(a)to be on a party/party basis as assessed up to the date of the grant of Legal Aid to the wife; and
(b)costs thereafter assessed on a Legal Aid rate basis with such costs limited, if applicable, to the sum paid by Legal Aid NSW to the wife’s solicitors pursuant to her grant of legal aid, and with the quantum of such costs as assessed to be paid by the husband to Legal Aid NSW.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vun & Pen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:

On 13 May 2021 the husband’s application for a declaration of nullity in relation to the marriage ceremony between him and the respondent wife on … September 2014 was dismissed.
Subsequent to 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.

Continue reading Pen & Vun (No. 2)

Details

AGLC: Pen & Vun (No. 2) [2021] FamCA 442
Case: [2021] FamCA 442
Decision Date: 2 July 2021

CaseChat Overview and Summary

In the matter of PAC 3665 of 2018, Mr Vun (the applicant husband) applied to the Federal Circuit and Family Court of Australia for a declaration of nullity against Ms Pen (the respondent wife). The husband was wholly unsuccessful in his application.

The primary legal issue before the court was the appropriate order for costs given the husband's complete failure in his application and the wife's receipt of a grant of legal aid.

Foster J reasoned that it was appropriate to order the husband to pay the wife's costs. The court determined that costs should be assessed on a party/party basis up to the date the wife was granted legal aid. Thereafter, costs were to be assessed on a legal aid rate basis, limited to the sum paid by Legal Aid NSW to the wife's solicitors. The husband was ordered to pay the assessed costs directly to Legal Aid NSW.

Orders

Orders of the court

PAC 3665 of 2018

BETWEEN:

MR VUN

Applicant

AND:

MS PEN

Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:

1. The applicant husband pay the respondent wife’s costs of and incidental to his application for declaration of nullity with such costs:

(a) to be on a party/party basis as assessed up to the date of the grant of Legal Aid to the wife; and

(b) costs thereafter assessed on a Legal Aid rate basis with such costs limited, if applicable, to the sum paid by Legal Aid NSW to the wife’s solicitors pursuant to her grant of legal aid, and with the quantum of such costs as assessed to be paid by the husband to Legal Aid NSW.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 3665 of 2018
Judgment of:	FOSTER J
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – COSTS – where application for costs made by the wife after husbands nullity application dismissed– where wife was in receipt of a grant of legal aid – where the husband was wholly unsuccessful in his application – where appropriate to order husband to pay costs on a party/party basis until the grant of legal aid and thereafter on a legal aid rate basis limited to the sum paid by Legal Aid and to be repaid to Legal Aid.
Legislation:	Family Law Act 1975 (Cth) s 117, 1172), 117(2A) Family Law Rules 2004 (Cth) r 19.18(1)
Cases cited:	Beach Petroleum NL v Johnson (No. 2) (1995) 135 ALR 160 Pen & Vun [2021] FamCA 294 Collins & Collins (1985) FLC 91-603 Greedy & Greedy (1982) FLC 91-250 Hawkins & Roe [2012] FamCAFC 77 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Luadaka & Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93 748 Penfold v Penfold (1980) 144 CLR 311
Number of paragraphs:	28
Date of last submission/s:	10 June 2021
Date of hearing:	8 and 9 April 2021
Place:	Parramatta
Solicitor for the Applicant:	Mr Sant of Longton Legal
Solicitor for the Respondent:	Ms Gok of SS Lawyers Pty Ltd

PAC 3665 of 2018
BETWEEN:	MR VUN Applicant
AND:	MS PEN Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	2 JULY 2021