Tian and Fong (Costs) - [2011] FamCAFC 29

Family Court Of Australia

TIAN & FONG (COSTS)

[2011] FamCAFC 29

FAMILY LAW - COSTS – Costs of the appeal – Where the Husband was wholly unsuccessful in the appeal proceedings – Where the Husband should pay the Wife’s costs of the appeal proceedings but not on an indemnity basis – Costs awarded on a party and party basis

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 1
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
McAlpin and McAlpin (1993) FLC 92-411
Munday v Bowman (1997) FLC 92-784
NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (2001) 109 FCR 77
Penfold v Penfold (1980) 144 CLR 311
Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Act 1975 (Cth)

APPELLANT WIFE:

MS TIAN

RESPONDENT HUSBAND:

MR FONG

FILE NUMBER:

MLC

923

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

24 February 2011

PLACE DELIVERED:

Sydney

JUDGMENT OF:

O’Ryan J

HEARING DATE:

Written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 October 2009

LOWER COURT MNC:

[2009] FMCAfam 856

Representation

COUNSEL FOR THE APPELLANT WIFE:

Mr D. Mort

SOLICITOR FOR THE APPELLANT WIFE:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT

HUSBAND:

Ms M. Vohra

SOLICITOR FOR THE RESPONDENT

HUSBAND:

Robinson Gill Lawyers

Orders

The Respondent Husband pay the Appellant Wife’s costs of the appeal proceedings determined by judgment pronounced on 15 December 2010.
The costs payable pursuant to Order (1) hereof are to be as agreed between the parties or as otherwise determined under the Rules of Court and in that regard time be extended for the filing of a Bill of Costs for a period of 60 days from the date of these Orders.
The costs referred to in Order (1) hereof be assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Tian & Fong (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 89 of 2009
File Number: MLC 923 of 2008

MS TIAN

Appellant Wife

And

MR FONG

Respondent Husband

Reasons For Judgment

Introduction

Before me for determination is an application for costs in relation to the successful appeal by Ms Tian (“the Wife”) against a property settlement order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Federal Magistrate O’Sullivan on 8 October 2009. The Respondent to the appeal and to this application is Mr Fong (“the Husband”).
The Wife seeks the following orders:
(1) Within 30 days, the Respondent Husband pay to the Appellant Wife’s solicitors, Westminister Lawyers all her…

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

Case: [2011] FamCAFC 29
Decision Date: 24 February 2011

CaseChat Overview and Summary

The matter of Tian and Fong involved the determination of costs associated with an appeal lodged by the Appellant, Tian, against the Respondent, Fong, who was her former husband. The appeal centred on the financial consequences of their divorce, specifically the costs incurred during the appeal proceedings that were finalised by a judgment on 15 December 2010. The primary issue before the court was the allocation of these costs between the parties.

The court had to decide whether the Respondent, Fong, should bear the costs of the appeal proceedings initiated by the Appellant, Tian. This decision required the court to consider the principles governing the allocation of costs in family law cases, particularly those related to appeals. The court was also tasked with determining the appropriate manner of assessing and quantifying these costs, including whether the costs should be shared or borne solely by one party. Additionally, the court had to decide on the timeframe for the submission of a Bill of Costs.

In rendering its decision, the court ruled that the Respondent, Fong, should pay the Appellant, Tian’s, costs of the appeal proceedings. The court emphasised the importance of ensuring that the financial burden of litigation is allocated fairly, taking into account the principles of justice and the conduct of the parties. The court also specified that the costs should be assessed on a party and party basis, meaning that each party would bear their own costs. Furthermore, the court extended the time for the filing of a Bill of Costs to allow the parties to agree on the quantum of costs or for the matter to be determined under the Rules of Court. This extension provided flexibility in ensuring that the costs were accurately and fairly determined.

Orders

Orders of the court

The Respondent Husband pay the Appellant Wife’s costs of the appeal proceedings determined by judgment pronounced on 15 December 2010.

The costs payable pursuant to Order (1) hereof are to be as agreed between the parties or as otherwise determined under the Rules of Court and in that regard time be extended for the filing of a Bill of Costs for a period of 60 days from the date of these Orders.

The costs referred to in Order (1) hereof be assessed on a party and party basis.

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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