Phak and Xu - [2018] FamCA 992

FAMILY COURT OF AUSTRALIA

PHAK & XU

[2018] FamCA 992

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Calderbank v Calderbank [1975] 3 All ER 333
Phak & Xu [2015] FamCA 939
Xu & Phak [2018] FamCA 898

APPLICANT:

Ms Phak

RESPONDENT:

Mr Xu

FILE NUMBER:

MLC

9662

2012

DATE DELIVERED:

26 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of Written Submissions

SUBMISSIONS RECEIVED FROM

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Oakfair Lawyers

Orders

The application for costs by the Applicant as set out in the written submissions filed 16 November 2018 and response thereto filed on 23 November 2018 are both dismissed.

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 Phak & Xu 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 MELBOURNE

FILE NUMBER: MLC 9662 of 2012

Ms Phak

Applicant

And

Mr Xu

Respondent

REASONS FOR JUDGMENT

On 7 November 2018 after a contested hearing on 30 October 2018, I published orders and reasons for judgment in an application to set aside orders made by Benjamin J on 30 October 2015[1]. The proceedings were between Ms Phak and Mr Xu and what follows are the reasons now arising out of a costs application brought by Ms Phak.
[1] Published as Phak & Xu [2015] FamCA 939
Tor the purposes only of these reasons, Ms Phak is referred to as the applicant and Mr Xu as the respondent. In the proceedings before me, culminating in the orders of 7 November 2018, those positions were reversed.
The judgment of 7 November 2018 is published as Xu & Phak [2018] FamCA 898
The orders made included a dismissal of the respondent’s application to set aside the orders of October 2015. There are now extant substantive applications for property settlement relief under s 79 of the Family Law Act 1975 (Cth) (“the Act”). It will be sufficient background for those applications to say that the applicant and the respondent were married; are now divorced; had separated and then executed a binding financial agreement; and, that the orders of October 2015 set aside that financial agreement. It is unfortunate that the substantive application has not since been heard.
The applicant’s application for costs was by way of written submission filed 16 November 2018. She sought indemnity costs on the basis which she set out in her submission and I quote:
[2]The Legal Costs (sic) I have been forced to…

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 Phak and Xu

Details

AGLC: Phak and Xu [2018] FamCA 992
Case: [2018] FamCA 992
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant, Phak, sought costs against the respondent, Xu, in proceedings before Cronin J. The specific nature of the underlying dispute between the parties is not detailed in the provided text, but the application for costs was made following written submissions filed by both parties in November 2018.

The central legal issue before the court was whether the applicant was entitled to an order for costs against the respondent. This required the court to consider the submissions made by each party regarding the costs of the proceedings.

Cronin J dismissed the application for costs. While the precise reasoning is not elaborated upon in the provided text, the outcome indicates that the court found no grounds to award costs in favour of the applicant. The court's decision was to dismiss both the applicant's application and the respondent's response concerning costs.

The final orders of the court were that the application for costs by the applicant, as detailed in the written submissions of 16 November 2018 and the response filed on 23 November 2018, were both dismissed. This outcome is subject to the formal entry of the order in the Court’s records.

Orders

Orders of the court

The application for costs by the Applicant as set out in the written submissions filed 16 November 2018 and response thereto filed on 23 November 2018 are both dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.