Ping and Truang

[2016] FamCA 614

FAMILY COURT OF AUSTRALIA

PING & TRUANG [2016] FamCA 614

FAMILY LAW – COSTS – where husband’s application to set aside financial agreement – where matter listed for two day trial – where matter resolved at trial by consent dismissing the husband’s application – where discussion as to general principles – where appropriate that husband pay wife’s costs as assessed or agreed.

Family Law Act 1975 (Cth) s 117

Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Ping

RESPONDENT: Ms Truang

FILE NUMBER: PAC 319 of 2013

DATE DELIVERED: 29 July 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 18 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Winfield

SOLICITOR FOR THE APPLICANT: Selective Lawyers

COUNSEL FOR THE RESPONDENT: Mr Watkins

Orders

1. That the husband pay the wife’s costs, as agreed within one month from this date or failing agreement as assessed, of and incidental to the application to set aside the financial agreement such costs to be assessed on a party/party basis and such costs to be paid within one month of assessment or agreement.   

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 Ping & Truang 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 319  of 2013

Mr Ping

Applicant

And

Ms Truang

Respondent

REASONS FOR JUDGMENT

Context

1. The application for determination is the wife’s application for costs arising out of proceedings determined by consent on 3 March 2015.

2. The primary proceedings were the husband’s application filed in the Federal Circuit Court of Australia on 9 May 2014 to set aside a financial agreement entered into by the parties on 26 June 2012 and, if set aside, consequent property orders.

3. The wife’s response sought that the husband’s application be dismissed and costs.

4. In June 2015 the proceedings were transferred for reasons that remain unclear to this Court. Trial directions were made on 20 August 2015 and the matter listed for hearing for two days commencing 3 March 2016.

5. Consequent on the consent dismissal of the husband’s application to set aside the financial agreement the parties also agreed to orders facilitating the 4WD motor vehicle that remained at the wife’s home but to which the husband was entitled under the provisions of the agreement being delivered up to the husband.

Costs  

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section as follows:

   a)The financial circumstances of each of the parties to the proceedings;

   b)Whether any party has legal aid and the terms of any grant of aid;

   c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;

   d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g)Such other matters as the Court considers relevant.

5. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

6. The wife contends that she has been successful in resisting the husband’s application to set aside the financial agreement. The wife had complied with her obligation under the agreement although not in a timely manner.

7. The agreement makes no express provision as to the 4WD vehicle, although the parties by agreement resolved the vehicle’s circumstances with the consent order on 3 March 2016.

8. As an indication of costs incurred by her the wife has provided an assessment (Exh C) in the sum of about $43,000. She has been put to significant expense.

9. The husband received $44,000 under the terms of the financial agreement. The fate of those funds is not known.  He asserts no income and lives overseas. He has $14,000 in superannuation.

10. The wife retained the home at Suburb B that has a value, she says, of about $600,000 with a mortgage of $430,000. She is self-employed with a modest income.

11. Neither party was in receipt of a grant of legal aid.

12. Importantly the wife has been wholly successful in respect to the primary application.

13. The issue as to the 4WD vehicle was resolved by consent with the proceeds charged with any order for the husband to pay the wife’s costs.

14. In the circumstances it is appropriate that the husband pay the wife’s costs. An order will be made accordingly.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 July 2016.

Associate: 

Date:  29 July 2016